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 51 (2 February 1981)

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Date: 1981-02-02
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 51 (2 February 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 51

Monday, February 2, 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 Inspecting 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:

Asselin
Austin
Cottreau
Lapointe
Lucier
Petten
Roblin
Rousseau
Tremblay–10

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Corbin
Côté (Mrs.)
Crombie
Epp
Fraser
Irwin
Lapierre
Mackasey
McGrath
Nystrom
Robinson (Burnaby)
Tobin–15

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

Pursuant to S.O. 65(4)(6) of the House of Commons:

On Monday, February 2, 1981:

Mr. Bloomfield replaced Mr. Mackasey;
Mr. Dionne (Northumberland-Miramichi) replaced Mr. Irwin;
Mr. Manly replaced Mr. Robinson (Burnaby);
Mr. Ittinuar replaced Mr. Nystrom;
Mr. Robinson (Burnaby) replaced Mr. Ittinuar;
Mr. Mackasey replaced Mr. Dionne (Northumberland-Miramichi);
Mr. Irwin replaced Mr. Bloomfield;
Mr. Tobin replaced Mr. McRae;

[Page 3]

Mr. Beatty replaced Mr. Hawkes;
Mr. Nystrom replaced Mr. Manly;
Mr. Munro (Esquimalt-Saanich) replaced Mr. Crombie;
Mrs. Côté replaced Miss Campbell (South West Nova).
Pursuant to an order of the Senate adopted November 5, 1980:

On Monday, February 2, 1981:

Senator Yuzyk replaced Senator Murray;
Senator Asselin replaced Senator Yuzyk;
Senator Connolly replaced Senator Wood;
Senator Roblin replaced Senator Doody;
Senator Rousseau replaced Senator Cottreau;
Senator Cottreau replaced Senator Connolly.

[Page 4]

MINUTES OF PROCEEDINGS

MONDAY, FEBRUARY 2, 1981

(93)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 9:49 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Bloomfield, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Dionne (Northumberland-Miramichi), Epp, Fraser, Hawkes, Ittinuar, Joyal, Lapierre, Manly, 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. Paul Martin and John McDonough, Researchers.

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

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister; and Dr. B. L. Strayer, Assistant Deputy Minister, Public Law.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)

On Clause 32 of the proposed Constitution Act, 1980

Senator Tremblay moved,—That Clause 32 of the proposed Constitution Act, 1980 be amended by striking out lines 23 to 30 on page 9 and substituting the following:

“32. (1) No later than two months after the coming into force of this Act, the Prime Minister of Canada and the first ministers of the provinces shall constitute a permanent conference to be designated the “Constitutional Conference of Canada” hereinafter referred to as the “Conference”.

(2) The Conference shall examine all Canadian constitutional laws and propose amendments necessary for the development of the Canadian federation.

(3) The Conference shall meet at least twice each year.

(4) The Conference shall be assisted by the Continuing Committee of Ministers on the Constitution.”

After debate, the question being put on the amendment, it was negatived on the following show of hands: YEAS: 8; NAYS: 15.

Senator Austin moved,—That Clause 32 of the Constitution Act, 1980 be amended by

[Page 5]

(a) renumbering clause 32 on page 9 as subclause 32( I );

(b) striking out lines 28 to 30 on page 9 and substituting the following:

“year.”; and

“(2) A conference convened under subsection (I) shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item.”

At 10:35 o’clock a.m., the sitting was suspended.

At 11:01 o’clock a.m., the sitting resumed.

Mr. Epp moved,—That the proposed amendment to Clause 22 of the proposed Constitution Act, 1980 be amended by adding immediately after the new subclause 32(2) the following:

“(3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions of any item on the agenda of a conference convened under subsection (I) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.”

After debate, the question being put on the subamendment, 11 was agreed to.

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

Clause 32, as amended, carried.

Clauses 33 to 40 were allowed to stand.

On Clause 41 of the proposed Constitution Act, 1980

Mr. Epp moved,—That Clause 41 of the proposed Constitution Act, 1980 be amended by striking out lines 12 to 38 on Page 12 and substituting the following:

“(b) resolutions of the legislative assemblies of at least two thirds of the provinces that have in the aggregate, according to the then latest general census, a population of at least fifty per cent of the population of all of the provinces.

(2) Where an amendment to the Constitution of Canada is authorized under subsection (I) that affects

(a) the powers of the legislature of a province to make laws,

(b) the rights or privileges granted or secured by the Constitution of Canada to the legislature or the government of a province,

(d) the natural resources of a province,

and the legislative assembly of a province has, by resolution, declined to authorize the amendment prior to the issue of the proclamation bringing it into force, the

[Page 6]

amendment has no effect in the province until the legislative assembly of the province by resolution approves the amendment.

(3) An amendment to this section may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and the legislative assembly of eight or more provinces that have, in the aggregate, according to the then latest general census, a population of at least eighty per cent of the population of all of the provinces.”

After debate, at 12:32 o’clock p.m., the Committee adjourned to the call of the Chair.

AFTERNOON SITTING

(94)

The Special Joint Committee on the Constitution of Canada met this day at 3:40 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

Other Senator present: The Honourable Senator Flynn.

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

Other Member present: Mr. Ittinuar.

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

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

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister; and Dr. B. L. Strayer, Assistant Deputy Minister, Public Law.

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

Your Sub-committee met on Monday, February 2, 1981 and agreed to make the following recommendations:

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

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

Tuesday, February 3, 1981 9:30 a.m. to 12:30 p.m. 3:30 p.m. to 5:45 p.m. 8:00 p.m. to 10:30 p.m.

[Page 7]

(B)—That a copy of all proposed amendments or sub-amendments be received by the Chair before 9:30 o’clock a m. on Wednesday, February 4, 1981.

(C)—That the Sub-committee on Agenda and Procedure meet at 5:45 o’clock p.m. on Tuesday, February 3, 1981 to evaluate progress.

By unanimous consent, the Eighth Report of the Sub-committee on Agenda and Procedure was concurred in.

The Committee resumed consideration of the motion of Mr. Epp,—That Clause 41 of the proposed Constitution Act, 1980 be amended by striking out lines 12 to 38 on page 12 and substituting the following:

(2) Where an amendment to the Constitution of Canada is authorized under subsection (1) that affects

(a) the powers of the legislature of a province to make laws,

(b) the rights or privileges granted or secured by the Constitution of Canada to the legislature or the government of a province,

(d) the natural resources of a province,

and the legislative assembly of a province has, by resolution, declined to authorize the amendment prior to the issue of the proclamation bringing it into force, the amendment has no effect in the province until the legislative assembly of the province by resolution approves the amendment.

After debate, at 6:00 o’clock p.m., the Committee adjourned to call of the Chair.

EVENING SITTING

(95)

The Special Joint Committee on the Constitution of Canada met this day at 8:08 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Mr. Corbin, Mrs. Côté, Messrs. Crombie, Epp, Fraser. Irwin, Joyal,

[Page 8]

Lapierre, Mackasey, Manly, McGrath, Nystrom, Robinson (Burnaby) and Tobin.

Other Members present: Mr. Hawkes and Mrs. Mitchell.

In attendance: From the Research Branch of the Library of Parliament: Mr. Paul Martin, Researcher.

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

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister; and Dr. B. L. Strayer, Assistant Deputy Minister, Public Law.

(2) Where an amendment to the Constitution of Canada is authorized under subsection (1) that affects

(a) the powers of the legislature of a province to make laws,

(b) the rights or privileges granted or secured by the Constitution of Canada to the legislature or the government of a province,

(d) the natural resources of a province,

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

[Page 9]

YEAS:

The Honourable Senators

Asselin
Robin
Tremblay

YEAS:

Messrs.

Beatty
Crombie
Epp
Fraser
McGrath—8

NAYS:

The Honourable Senators

Austin
Cottreau
Lapointe
Lucier
Petten
Rousseau

NAYS:

Messrs.

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

Mr. Irwin moved,—That Clause 41 of the proposed Constitution Act, 1980 be amended by striking out lines 21 to 31 on page 12 and substituting the following:

“(ii) two or more of the Atlantic provinces, and

(iii) two or more of the Western provinces that have in the aggregate, according to the then latest general census, a population of at least fifty per cent of the population of all of the Western provinces.”

After debate, the question being put on the sub-paragraph (ii) of the amendment, it was agreed to.

The question being put on the sub-paragraph (iii) of the amendment, it was agreed to on the following division:

YEAS:

The Honourable Senators

Austin
Cottreau
Lapointe
Lucier
Petten
Rousseau

YEAS:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Irwin
Lapierre
Mackasey
Tobin—13

[Page 10]

NAYS:

The Honourable Senators

Asselin
Roblin
Tremblay

NAYS:

Messrs.

Beatty
Crombie
Epp
Fraser
McGrath
Nystrom—9

Clause 41, as amended, carried.

On Clause 42 of the proposed Constitution Act, 1980

Mr. Nystrom moved,—That Clause 42 of the proposed Constitution Act, 1980 be amended by striking out line 12 on page 13 and substituting the following:

“section 41(1), and

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

Mr. Irwin moved,—That Clause 42 of the proposed Constitution Act, 1980 be amended by striking out lines 18 to 20 on page 13 and substituting the following:

“under the Great Seal of Canada which proclamation may be issued where

(а) an amendment to the Constitution of Canada has been authorized under paragraph 41(1)(a) by resolutions of the Senate and House of Commons;

(b) the requirements of paragraph 41(1)(6) in respect of the proposed amendment have not been satisfied within twelve months after the passage of the resolutions of the Senate and House of Commons; and

(3) A proclamation issued under subsection (2) in respect of a referendum shall provide for the referendum to be held within two years after the expiration of the twelve month period referred to in paragraph (6) of that subsection.”

After debate, at 10:27 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

[Page 11]

EVIDENCE

(Recorded by Electronic Apparatus)

February 2, 1981

0947

[Texte]

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

May I invite the honourable members to take their seats so we can resume consideration of the proposed motion on Part HI, Clause 32, entitled Constitutional Conferences.

On Clause 2—Constitutional conferences.

[French]

This morning we are resuming consideration and also undertaking examination of a new part of the proposition we are debating, the part entitled “Constitutional Conferences”

[English]

On that very part of the proposed motion the Chair has been informed of three amendments, one moved by the Official Opposition, the Conservative party; the second one moved by the government party; and the third one moved by the New Democratic Party.

I repeat that those three amendments you will find in your amendments package, the first one is identified or numbered CP-15, Clause 32, page 9; the second amendment is identified C-34, Clause 32, page 9; and the third one is identified or numbered N-35, Clause 32, page 9. Anyone of the honourable members who would not have copies of those amendments, we WM make sure that the clerks circulate them.

So I repeat for the benefit of our viewers this morning that We are opening a new part of our discussion, it is the part entitled Constitutional conference.

[French]

We will be debating three specific amendments concerning this new part and the first of those amendments is put forth by the conservative party, the Official Opposition.

[English]

I would like then to invite honourable Jake Epp to move the amendment on behalf of the Official Opposition, and then

[French]

I would ask the honourable Senator Tremblay to read us the French version

[English]

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, I would ask that you recognize Senator Tremblay as introducing the amendment for us.

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

[French]

The honourable Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

I move that Clause 32 of the proposed Constitution Act, 1980, be amended by striking out lines 23 to 30 on page 9 and substituting the following:

32. (1) No later than two months after the coming into force of this act, the Prime Minister of Canada and the First Ministers of the provinces shall constitute a permanent conference to be designated the “Constitutional Conference of Canada” hereafter referred to as the “Conference”.

[Page 12]

(2) The Conference shall examine all Canadian constitutional laws and propose amendments necessary for the development of the Canadian confederation.

(3) The Conference shall meet at least twice each year.

(4) The Conference shall be assisted by the continuing committee of ministers on the constitution.

[English]

Mr. Epp: Mr. Chairman, in English:

That Clause 32 of the proposed constitution act, 1980, be amended by striking out lines 23 to 30 on page 9 and substituting the following:

32. (1) No later than two months after the coming into force of this act, the Prime Minister of Canada and the first ministers of the provinces shall constitute a permanent conference to be designated the “Constitutional Conference of Canada” hereinafter referred to as the “Conference”.

(2) The Conference shall examine all Canadian constitutional laws and propose amendments necessary for the development of the Canadian federation.

(3) The Conference shall meet at least twice each year.

(4) The Conference shall be assisted by the Continuing Committee of Ministers on the Constitution.

[French]

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

Senator Tremblay: Mr. Chairman, I do not think it is necessary to present this amendment at length as its meaning is very clear when one looks at Clause 32 which would be amended in this way.

The constitutional conference mentioned in the project, in Clause 32, seemed to us to be constitutional conferences with one objective only, that of making possible the discussions and negotiations which would lead to the adoption of an amending formula.

Consequently, those constitutional conferences are of a transitional nature; in effect, they correspond to the traditional period provided for between repatriation and the setting up a permanent amending formula.

It did seem to us that this way of doing things did not take into consideration a major element of the conjuncture surrounding repatriation, that is to say the necessity and will which were clearly expressed, at least in Quebec, and that we can feel gaining momentum across the whole country, necessity and the will to proceed with an in-depth renewal the Canadian federation.

It is in that perspective that we are suggesting that the constitutional conferences not be transitional in nature but permanent and be set up with that perspective, the perspective of proceeding wit the renewal of the Canadian federation.

That is the orientation of our amendment requesting that the Prime Minister and the premiers of the provinces set up a Canadian constitutional conference.

We have included certain procedural points, that is the ones which give us the assurance that this conference will

[Page 13]

proceed rapidly after repatriation and that it will also proceed at a speed which will allow us to attain the desired results.

We restricted ourselves to these generalities and did not indicate how the conference should be set up, as it will be up to the Prime Minister and the premiers to decide that specifically, taking into account the circumstances surrounding the whole thing when we get to that point of the process.

Mr. Chairman, I do not think I have much more to add. I will conclude on that. I think the meaning is clear and that we should now see how the government party and our other colleagues on the committee react to this suggestion.

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

[English]

I understand that the honourable Jake Epp would like to add some comments on the proposed motion before I…

Mr. Epp: Mr. Chairman, only in the discussion as others respond.

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

Honourable Senator Lucier.

Senator Lucier: Thank you, Mr. Chairman.

During the presentation by Mr. Chris Pearson, the elected leader of the Government of the people of Yukon before this Committee, he made a very strong plea, and I thought a very sensible one, that both territories be included in discussions, Specially discussions pertaining to the Yukon and the Northwest Territories.

I am not in a very good position to speak for the Northwest Territories but I think in this position I can say their views would be very much the same as those expressed by Mr. Pearson. Mr. Pearson even stated at that time, in replying to a Question from me, that they did not expect to have a veto on ne other provinces, all they were asking for is simply when you are dealing with something, especially something that Pertains to the North, that their views be known and be made y them who were elected to represent the people of the Yukon, and I know all the arguments about the department will do it for them, they are great arguments, but they are not good enough. I do not think they are entitled to speak for the elected people of the territories.

Mr. Chairman, I am very disappointed that of the three Amendments I have before me, not one of them mentions the territories. Mr. Epp, in his short time as Minister of Northern fairs, quite frankly, made a very favourable impression on the people in the north. Again, I am speaking for the Yukon, and I think I can speak for the Northwest Territories as think he was a good minister. I disagreed with some of the things he did, quite frankly I now think that some of the things e did was right and I was wrong. I thought he was going too fast, but the way this turned out I do not think he was, I think he was doing the right thing.

Having said that, I am very disappointed, as I say, that their amendments, like the ones from the government and the New

[Page 14]

Democratic Party, do not include the Yukon, do not include the word “Yukon”.

Now, we have gone to great lengths to make sure in the amendments that the aboriginal peoples will be represented when you are dealing with them. I fully concur with that. I am not asking for a solution by taking out the aboriginal peoples, I want the Yukon added.

I do not think I am going to have much success, Mr. Chairman, in getting that change at this stage. I have spent a lot of time with the Minister on this, I have spent a lot of time with his staff. I quite frankly do not think we are going to have great success in having it changed. I just want to make sure that everybody around this table understands that I am very disappointed.

The Minister was minister of Indian and Northern Affairs, I know that he has some good feeling for the people in the North. I know that Mr. Epp also has. I cannot help but say that I am very disappointed that neither of them chose to put that amendment in Clause 32. I think the people of the Yukon are being shortchanged on this. I do not think it is fair to ignore them in these conferences.

Quite frankly, somewhere along the way we are going to be discussing provincial status for the Yukon Territory and for the Northwest Territories. It seems to me that it is going to be very difficult to do that without the elected representatives of the two territories present. I do not think I can say anything much more than that that would add to what I have said, Mr. Chairman, other than to say I am not only disappointed with the new Democratic Party for not putting that in there, and in the Conservative Party for not putting it in there, I am also very disappointed with my own party and my own minister. I really believe, Mr. Chairman, that if there was some way I could vote against the government on this one, I would. I am not sure that I will yet but I do not like the way it has been done.

Thank you.

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

The honourable Minister of Justice.

[French]

Hon. Jean Chrétien (Minister of Justice and Attorney General): Mr. Chairman, I would like first to speak to Senator Tremblay’s motion. I will not talk about the substance but I know from experience, from the discussions we have had last summer, that it is premature to enshrine such a mechanism in the constitution for the simple reason that constitutional talks are not over yet, they have just begun, we are still a phase one.

Obviously, one of the items on the agenda is to find a way by which provinces or regions will somehow be more adequately represented here in Ottawa where national decisions are being taken.

Many mechanisms have been considered and this is one of them. Eventually, a council of provincial delegates could created, the work of which could also be done by a reformed Upper House. Therefore, I think it is totally premature to

[Page 15]

enshrine in the constitution what one might call federalism by management, so to speak, whereby premiers and the prime minister who are actually the managers of their respective legislatures which are not necessarily the best authority under the circumstances, would engage in a debate.

[English]

And to reply to Senator Lucier, since the year of 1968 when I became Minister of Indian Affairs there has been a lot of Progress in the North. There was only appointed members of ‘he council in the Northwest Territories and a very limited assembly in the Yukon; we have extended a lot of powers to ‘hem over the last 13 years. This resolution is for the constitutional discussions in the next two years as we are proposing, and of course the Yukon Territory and the Northwest Territories are represented but they are not as yet constituted as a Provincial government. Of course, if we were to discuss something with the provinces that affect them, I have no doubt that the Canadian government would want them to express their views.

However, we are not debating in those conferences the constitutional status of the Yukon and the Northwest Territories and consequently we do not think that it will be adding anything to give them a formal position there at this moment.

[French]

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

Honourable

[English]

Jake Epp, followed by Mr. Nystrom.

Mr. Epp: Thank you, Mr. Chairman.

I wanted Senator Tremblay to introduce the amendment, especially in view of his not only senior status in this Commitee but also his years of experience in federal-provincial relations, an experience that goes well beyond his home province but also has been recognized by participants over the years from various other provinces, not only in the credibility but the Aspect that he enjoys through that work

1005

I want to get back to what Senator Lucier said. I want to thank him for the words he has expressed. He and I have had some differences—what I call, in the crucible of politics, where we had to come to some agreement in terms of the territory in which he is a resident and which he naturally wants to see developed along the course of full status, either with responsible government or provincial status. I thank him very sincerely for his comments.

Mr. Chairman, Senator Lucier is correct in talking about territories and their involvement. He is also correct in making the judgment that he does about our amendment.

I say to him as candidly as I can, Mr. Chairman, that I am willing to look at that suggestion into amendment form this morning, and after we have discussed it, to hold the final vote, if that is the wish of the Committee, to see if we cannot find some suitable wording to include the wording that Senator Lucier has expressed.

[Page 16]

I want to put it in these terms, Mr. Chairman. There is no question but that the territories are our frontier in the sense of the area that obviously is going to be added to Canada with full provincial status. Everyone who studies it knows that.

Everyone also knows that there is a deep desire there, especially in the Yukon and in different ways, but nevertheless, the same desire in the Northwest Territories.

The Yukon Territory, the people of the Yukon and the people of the Northwest Territories are taking different approaches; but the question is central.

The question is this: how do they, as residents of the territory, get more responsibility over the day to day affairs and administration of the territories?

What they have said, to a man and woman, is that they do not feel that they are being represented through a federal delegation headed by the Minister of Indian Affairs and Northern Development, no matter who that Minister might be, or whichever party forms the government.

That is not adequate representation.

They also feel very strongly that their elected people not only should have the right, but also the responsibility to the electorate of the territory for actions taken on behalf of the electorate of the territory.

As some of us know from personal experience, Ministers can come and go and that responsibility comes and goes, but the elected representatives remain in the territory—and that is where the responsibility should lie.

Mr. Chairman, for some time, this party has discussed a constituent assembly where the very question that Senator Lucier raised respecting the territory could be discussed.

We looked at that kind of amendment, whether a constituent assembly should be put into permanent form in the constitution, and we came away with the conclusion that if you have one constituent assembly, obviously you should not have it in the constitution.

It is the difficulty of achieving the goal, and yet the vehicle we have does not allow us to arrive at the goal.

I am without doubt, Mr. Chairman, convinced that we need a constituent assembly where the elected people, not only at federal, but also at the provincial and territorial levels—the Yukon and Northwest Territories and the aboriginal people, as the amendment of this morning will indicate—along with other groups, should sit down to finish the constitution making of Canada, in Canada.

In that sense, I agree with Senator Lucier totally.

As I say, Mr. Chairman, I have some difficulty, not in the concept of including the territories in the Federal-Provincial Conferences in the areas which directly relate to their constitutional development; because the greatest constitutional development, Mr. Chairman, is going to take place in the area north of 60°. Without doubt, they are going to go through the biggest changes, and so they must be included.

[Page 17]

If you, Mr. Chairman, and others on the Committee have some wording which would allow them to do that—and I want to repeat that this is not an infringement upon any provincial rights; Mr. Pearson, as well as representatives from the Northwest Territories, such as Mr. Braden, at no time said that they wanted full provincial status, and that if we were to use the unanimity formula, that they would have to be part of that unanimity, or if there was another formula, that they had to be built into the formula that they could veto.

None of them in my private discussions, previously and presently in the constitution, has ever spoken in those terms.

So I say quite frankly to those Canadians south of 60°, that while they might argue that there is a very small population north of 60°, the representatives of that small population have never argued, or wanted to, to hold those in the large population areas either for ransom or use a veto, or use the fact that they came from a large geographical area to totally dominate those who had a larger population.

I think the point should be made.

But the fact is, as Senator Lucier said, that development of the territories is going to be very rapid and based upon the constitution.

So I say to you, Mr. Chairman, that I do not think that the constituent assembly can be imbedded in a constitution, because theoretically you would have one constituent assembly; but they should be included, as Mr. Pearson has said, and others have said, that they should be there to have he right to participate and to speak on behalf of their people and to put forward proposals on behalf of the people, not be Part of the federal delegation, and not either to infringe upon Provincial rights or to hold a veto.

If there is some wording which is acceptable to the Committee, I would suggest that we discuss the amendment and if the committee is willing, possibly to hold a final vote on it until after the luncheon break, maybe we can arrive at some sort of solution.

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

Mr. Nystrom.

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

A number of the things referred to in the amendment of the Conservative Party are very positive.

In this country, after so many years of discussing the constitution, because of the referendum in Quebec, we need some movement. It is very important to enshrine in our constitution, the requirement that we need constitutional conferences; whether they should be held once, twice or three es a year, I am not sure.

But it is very important to make a commitment that there be e movement and not simply talking and more talk—as many Canadians feel has been happening up to date.

We obviously now have some movement and some interest e country. We have ignited a spark on constitutional

[Page 18]

matters, not only in Quebec, which has been there for a long time, but in many other parts of the country—certainly in the west; we have places like Newfoundland and amongst the aboriginal people and the like.

I like a lot of what they are saying in the amendment. But I cannot support it for one or two reasons: that is, our party believes that the negotiation process should not necessarily be left to 11 people, the First Ministers of this country.

We believe it should be broadened to include the aboriginal people certainly; they have a special place at the bargaining table; there should be the possibility of including representatives of other groups, and in particular, I look at the Opposition parties of the House of Commons and in the legislatures across this country.

If we were to do that, we would widen the process and have a greater cross section of Canadian points of view.

For example, we would have in the province of Ontario some provincial Liberal voices; in the province of Quebec, we would have provincial Liberal voices that sit in Opposition; in western provinces, Manitoba and British Columbia, we would have voices of the New Democratic Party and in Saskatchewan, we would have not only Premier Blakeney, but the Conservative Party.

I think this is a good cross section, a good move towards building a constitution which reflects more accurately the voices of the people of Canada.

One other interesting thing—and I see Senator Lapointe sitting over there, which reminds me that in the constitutional making of this country, despite the fact that slightly over half the people of this country are women, up until this date, most of the deliberations have been done by men.

All the 11 First Ministers are men. That in itself, is a very, very negative thing.

For these reasons, even though I agree with much of the sentiment expressed in the Conservative amendment, Mr. Chairman, I feel I have to vote against it, because I feel the process should be wider.

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

Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Chairman. My intervention will be brief. It is in the tone of encouraging government members to vote for the amendment and, in the following context.

I have tried to stand back periodically from the entire 59 clauses, to see what the impact would be.

There is a curious tendency throughout this entire proposed piece of legislation to put, I believe, more power and decision-making power in the hands of the federal government, and consistently to resist amendments which would put obligations upon the federal government.

All of this is taking place in a political climate in Canada in which failure to attend to the federal nature of Canada and to the role that our two levels of government have in our federa-

[Page 19]

tion—failure to pay attention to that is causing strains upon the federation, causing in my region of the country-and I repeat-growth in the feeling that the only way to political sovereignty is by means of some kind of separation.

I see this clause as a proposed amendment by our party as important in that context; because what it would do is to force the Premiers of the provinces and the Prime Minister of Canada to have a regular dialogue on the nature of Canada and the nature of the federated state.

I heard the Minister say it could happen maybe tomorrow, that sometime in the future, that they would arrive at a mechanism to see that this kind of thing happens.

But I would feel a great deal more comfortable with this entire piece of legislation if at least somewhere in it there was some mechanism which obliged the federal government to pay attention to the nature of our federated state.

Each and every time that opportunity arises, I see government members voting to avoid that kind of obligation. I think it is dangerous and undesirable, and I would like to encourage the government to reconsider and perhaps include some of the wording which might be suggested by Senator Lucier so that we could expand that principle to encompass some representation from all of the people of Canada in the development of the federation.

Thank you, Mr. Chairman.

1015

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

Honourable Senator Roblin.

Senator Roblin: Mr. Chairman, the issue that is before us now is what to do about the federal-provincial conference and as I read the original proposal of the government, the federal-provincial conference will be enshrined in the constitution lor two years, until Part V comes into effect, and after that it is eliminated.

I think the thrust of the proposal made by Senator Tremblay is that the federal-provincial conference should be a continuing feature of our constitution.

Now, why should this be so? Well, it seems to me that one of the unusual constitutional innovations which we Canadians can call our own is this federal provincial conference. While so far, it has not been enshrined in any law, nevertheless, it has become a very powerful convention of our political life in adjusting relations between the provinces and the federal government. And despite the disappointment that some people feel with the workings of the federal-provincial conference as it was disclosed last September, I think it is still very much worthwhile keeping.

ln fact, the achievements of last September were not nearly so negative as some people would like us to believe, because when Premier Blakeney of Saskatchewan was here he made it quite clear that he thought that progress had been made and it should be continued, and Premier Maclean of Prince Edward Island said the same thing.

[Page 20]

Now, the comment that we have received from the representative of the federal Cabinet with respect to this matter was that we really did not need the federal-provincial conference because sometime in the future we would have a reformed Senate or a council of the provinces, or something like that take place. I am all for a reformed Senate. I do not know whether I need to repeat my views about the value of an elected Senate because I have had the chance to do so more than once on this occasion. I have not retreated from that position, and I hope that an elected Senate might go a long way towards softening regional problems in Canada. The Minister mentioned a council of the provinces or something like that, and it seems to me that that would not achieve the goal that he is seeking.

So in spite of the fact that an elected Senate sometime in the future, if we can ever get around to amending the constitution in that respect, would be my preference, I also support the concept that the federal-provincial conference should continue. After all, that has been the single greatest means of constitutional progress in Canada to date. A lot of people overlook that, but the achievements of the federal-provincial conference system in bringing about social and economic and taxation changes in Canada have been remarkable over the past 20 years; and I think we would be ill-advised to dispense with that method of moving ahead.

It has been objected to by Mr. Nystrom because I think he has confused it with the constitutional convention. I do not propose a standing constitutional convention as being a good thing for the country, but I do propose that a meeting of the First Ministers who would look into the constitution is a good thing, and I think that the proof of the pudding is in the eating, that this activity has been productive in the past.

In my opinion, it has produced the greatest constitutional changes we have seen since the country was founded and it would be a bad thing to dispense with something that has worked to great advantage for the people of Canada.

So while I think that our motion could be improved, I agree with those that want to amend it in certain respects, I still think that the basis is there for a constructive addition to our Canadian constitutional structure; and therefore, I ask the members of the Committee to support the motion of Senator Tremblay.

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

I would like to invite honourable Jake Epp to conclude but I see that…

Mr. McGrath: Perhaps Senator Tremblay could sum up.

[French]

The Joint Chairman (Mr. Joyal): I would therefore invite the honourable Senator Tremblay to sum up on the motion as it was proposed,

[Page 21]

Senator Tremblay: I think we should look at the exact meaning of the amendment. At this stage, its sole objective is to include in the constitutional project, the obligation for the premiers and the Prime Minister to set up a conference without prejudging the procedure used to set it up, or pronouncing ourselves in any way on that subject.

The discussion we have just had has specifically shown that we can think up all kinds of ways to proceed with the constitutional review which is required and requested by all Canadians.

Have we arrived at a point where we can define the procedure which should be used for this review? The only one we are specifying bears on the principle of the thing and that is the setting up of a constitutional conference.

How would that conference be made up? What groups would be asked to participate? It seems to me it is the Prime Minister and the premiers themselves who are in the best position to explore those different avenues.

That is why we are not going any further on the principle. We, as a committee, feel we can specify certain procedures concerning the composition or the participation of certain groups in the matter of the constitutional conference, I personally have no objection, but if we choose that option, I suggest that we be, in a manner of speaking, parsimonious because listing one group or another will finally lead us all here to sitting up this conference ourselves, which seems to be slightly premature, but it is not a question of refusing or not refusing one group or the other.

Therefore, as the honourable Jake Epp has suggested, I would quite agree that we think a bit more about certain aspects which were raised, the participation of the Yukon, for example, and if we find a way of mentioning or referring to such participation while defining its character, I would personally have no objection, but I would like to draw attention to the dynamics of the situation we will be creating, in other words, we will perhaps be called upon to set up this whole conference.

Upon reflection, I personally think it would be preferable that we stick to the necessity, the obligation from the Prime Minister and the premiers to set up such a conference, which means that we do want the constitution to be reviewed; we have also added the question of the speed or tempo of this work which shows that we do intend it should be done on a continuing basis and rapidly enough to produce results.

That is the extent of it at this stage, but once again, as the honourable Jake Epp suggested, I am quite open to standing this proposed amendment so as to perhaps allow adding certain modalities concerning the composition of the conference which would meet the wish of everyone and lead to a consensus.

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

[Page 22]

I believe the honourable senator has just suggested that this amendment be stood before the Chair invites the honourable members to vote.

[English]

Mr. Epp: I move that the Conservative amendment listed as CP-15, Clause 32, be stood.

The Joint Chairman (Mr. Joyal): I have the request that the amendment as moved by the Official Opposition be stood and I would like to see around the table if there is agreement. The honourable Senator Austin.

Senator Austin: Mr. Chairman, we would like to proceed. We have decided that we cannot support that amendment, and I would suggest that if necessary we vote on it.

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

Mr. Robinson: Mr. Chairman, I just want to indicate for the record that we would be prepared to have this amendment stood but the government has made their position clear.

The Joint Chairman (Mr. Joyal): So, understanding that there is unanimous consent around the table that the amendment be stood, the Chair has no other choice than to call the vote.

Amendment negatived.

I would like to invite the honourable members to take the next amendment, it is the amendment identified G34, Clause 32, page 9.

[French]

I would like to invite the honourable members to take the next amendment, it is the amendment identified G-34, Clause 32, page 9 and I invite

[English]

the Honourable Senator Austin to move the amendment in the usual way.

[French]

Honourable Senator Austin.

[English]

Senator Austin: Thank you, Mr. Chairman. It is my pleasure to move that Clause 32 of the proposed constitution act, 1980 be amended by: (a) renumbering clause 32 on page 9 as subclause 32(1); (b) striking out lines 28 to 30 on page 9 and substituting the following: “year”; and (c) adding thereto immediately after the renumbered subclause 32(1) on page 9 the following subclause:

(2) A conference convened under subclause (1) shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item.

[French]

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

Mr. Corbin: Thank you, Mr. Chairman. I move:

That Clause 32 of the proposed Constitution Act 1980 be amended by:

a) renumbering Clause 32 on page 9 and subclause 32 (1);
b) striking out lines 28 to 30 on page 9 and substituting the following: “year”;

[Page 23]

c) adding thereto immediately the renumbered Clause 32 (1) on page 9 the following subclause:

“(2) A conference convened under subclause (1) shall have included in its agenda an item respecting constitutional matters that directly affect the identification and definition of the rights of those people to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those people to participate in the discussion on that time.”

Thank you.

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

[English]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Corbin. I have on that main amendment been informed that there is a subamendment. It is a subamendment introduced by the NDP Pary and before I invite honourable members to comment on the main amendment I would like to invite Mr. Robinson to move the NDP subamendment.

Mr. Robinson.

1030

Mr. Robinson: Mr. Chairman, with the consent of the Committee I would like to withdraw this proposed amendment. The government amendment deals with the concerns by and large that we were attempting to deal with in our amendment and I would seek leave to withdraw this.

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

The amendment having not been proposed and moved in the Procedural way, I see there is no amendment from the New democratic Party. So I would like to invite the honourable Jake Epp on the amendment.

Mr. Corbin: It is our amendment.

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

Senator Austin: Thank you.

I would appreciate the opportunity to speak briefly to the amendment I have just moved. It is a natural concomitant to the amendments that we have moved with respect to the a original peoples under Clause 25 and Clause 31.

Members of the Committee will know that the Prime Minis1^. requested of First Ministers that at a subsequent First Ministers’ meeting the question of constitutional issues affecting the native communities would be a major item on the agenda.

The purpose of this amendment is to ensure that that political commitment is contained within the interim arrangements of the constitution act and to allow what I consider to be a major event m the life of the aboriginal peoples to take place, that is their opportunity to sit as equal members of a constitutional session of the Prime Minister and other First Ministers, and to discuss the questions, including identification and definition of their rights, that is the rights of the Indians, Inuit and Metis in the society which we call Canada.

[Page 24]

I believe that as a result of that meeting and the status, the constitutional status which the aboriginal receive from this proposed amendment, we ought to be able to set up modalities that will move quickly t deal with their permanent place in the Canadian fabric.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Senator Austin. Honourable Jake Epp followed by Mr. Robinson.

The honourable Jake Epp.

Mr. Epp: Mr. Chairman, further to the amendment proposed by the government, I am not going to move an amendment at this moment, I might do it just a little later, but I would like to ask for reaction from government representatives if included, and I have not worked out the final wording, that the amendment would be further amended to this effect: a conference convened under subclause (1) shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including identification and definition of the rights of those people to be included in the constitution of Canada. And the Prime Minister of Canada shall invite representatives of those people to participate in discussions on that item, and further, and having further included in its agenda an item respecting constitutional matters that directly affect the Yukon and Northwest Territories of Canada and the Prime Minister of Canada shall invite elected representatives of those territories to participate in the discussions on that item.

Would the government react favourably to that form of an amendment?

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

Senator Austin: I appreciate the suggestion which Mr. Epp has made, and as the Minister is not presently at his desk in the room I would like the opportunity to discuss the proposed amendment just read by Mr. Epp with the Minister, to see whether it is procedurally possible and practical, I certainly believe it to be just, and come back on the question at a convenient time not to long from now.

Mr. Epp: Mr. Chairman, I appreciate that openness from Senator Austin. It would by my recommendation that the Minster have some time to look it over.

I will complete it in writing, you will find that it is in exact word form to the amendment of the government, just changing it to the territories and elected representatives of the territories, and if there is a recess needed, a short recess on the part of the government, I will be willing to accede to that as well.

The Joint Chairman (Mr. Joyal): I wonder, honourable Jake Epp, if you would be agreeable to reading again the proposed subamendment that you just introduced because I see the honourable Minister of Justice is here and maybe it will be helpful for the honourable members around the table to hear it again.

Honourable Senator Austin.

[Page 25]

Senator Austin: Mr. Chairman, I wonder if it would be agreeable to all members of the Committee that we adjourn for l0 minutes to allow us to consider the proposal that Mr. Epp has just made.

The Joint Chairman (Mr. Joyal): If I see consent around the table.

Some hon. Members: Agreed.

The Joint Chairman (Mr. Joyal): The Chair would be agreeable to adjourn for 10 minutes.

The meeting is adjourned until 10:45 a.m.

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

May I invite honourable members to take their seats so we could resume consideration of the proposed amendment to Clause 32, and we are debating an amendment moved by the government party and at our adjournment the Official Opposition suggested consultations with the honourable Minister of Justice on the text on the proposed subamendment that would add Northwest Territories and Yukon in the process of a constitutional conference, and I wonder at this point if the honourable Minister of Justice or officers of the department would be in a position to report on the result of those discussions.

[French]

Honourable Minister of Justice.

[English]

Mr. Chrétien: Mr. Chairman, it is a very late type of amendment that was not predicted at all and we will not delay the proceedings but I do think, I have talked to Senator Lucier and my Deputy has talked with Mr. Epp and if we were to add in the proposed amendment that has been drafted the words “in the opinion of the Prime Minister”, I do not have the final text so would you read it, the one who drafted it, whose writing is worse than mine.

The Joint Chairman (Mr. Joyal): Monsieur Tassé.

[French]

Mr. Roger Tassé (Deputy Minister, Department of Justice): Thank you, Mr. Chairman.

[English]

In effect the proposal would require an addition by way of a new subclause, Subclause (3) to Clause 32 that would read as fallows:

The Prime Minister of Canada shall also invite elected representatives of the governments of the Yukon Territory and of the Northwest Territories to participate in discussions on those items on the agenda of any such conference that in his opinion directly affects the Yukon Territory or the Northwest Territories.

Thank you, Mr. Chairman.

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

Mr. Epp: Mr. Chairman, the gist of what we are trying to achieve, namely that the territorial governments would be participating in discussions on those items on the agenda that directly affect them, that is the gist of my amendment, you will also notice that it is a new subclause (3), in other words it does not affect the government amendment subclause (2), and we wanted to keep that quite clean, we do not want to get involved in subclause (2) in any way, or that it might in any

[Page 26]

way derogate or reduce or add. So there is a new subclause (3).

For those of us who have been looking at the territories, we are in this difficult situation because the Minister would like to add that “in his opinion”, namely that the Prime Minister would decide which items directly affected the territories. In a pure sense that causes me difficulties in terms of an agenda because the agenda is the agenda of the conference.

On the other hand, the reality is that the territories are a direct federal responsibility and it is between the ideal and the reality I guess that we are concerning ourselves with. It is not as ideal as I personally would like it but I feel it is a marked improvement over where we have been.

Mr. Chrétien: If we were to have in the resolution everything we think is ideal for everyone of us, we will never go anywhere. I think it is the best I can accept and Senator Lucier told me that is was acceptable and it was his intervention that has caused this movement so if he accepts it, I think that the Committee should go along with it.

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

I would like to invite honourable Senator Lucier followed by Mr. Peter Ittinuar.

Honourable Senator Lucier.

Senator Lucier: Thank you, Mr. Chairman just a couple of very short words.

I am extremely pleased with Mr. Epp’s amendment and the Minister’s acceptance of it. Quite frankly, I think that the people of the Yukon have been well served if we accept this and I am prepared to accept it as it is.

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

Mr. Peter Ittinuar.

Mr. Ittinuar: Thank you, Mr. Chairman.

Mr. Epp’s amendment is acceptable to us. It is something we have tried to raise before on behalf of especially the Northwest territorial government and I suppose other people on behalf of the Yukon territorial government. The amendment is, if as defined as clearly as Mr. Epp has stated, then it is quite acceptable to us.

Thank you, Mr. Chairman.

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

Do I see that honourable members are ready for the vote on the proposed subamendment? Honourable Senator Austin to conclude.

Senator Austin: Thank you, Mr. Chairman.

I want to congratulate Senator Lucier for his decisive intervention here and the result which Mr. Epp and the Minister facilitated, and Mr. Ittinuar has found agreeable, that the two territorial governments will find a place at constitutional conferences as working members where items directly affect them in the opinion of the Prime Minister.

[Page 27]

Concluding on subclause (2), I have not heard any negative Position taken around the table with respect to the entitlement the aboriginal peoples to be at these constitutional conferees and therefore, Mr. Chairman, I will close now with the hope that we could make the vote on Clause 32 unanimous.

[French]

Mr. Corbin: Mr. Chairman.

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

Mr. Corbin: An English text has been read, I have not heard a French version. Do you intend to distribute the French version before the vote?

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

While the previous debate was going on, I spoke to the Clerk of the House of Commons in order to make sure that the Chair has a French version of the subamendment so that the Chair or another honourable member of the Committee might read it. I am told this French version will be available very shortly.

[English]

Mr. Epp: Mr. Chairman, Mr. Corbin is correct, there just Was not enough time to translate. I know he is a reasonable and understands that, and I would suggest now that we have had the general discussion we wait, if there be additional discussion and the vote, until the translation has arrived and I think we can go to other items on the clause-by-clause.

1155

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

Mr. Chrétien: Mr. Chairman, I have on behalf of the government to accept them—I have the text, relating to Mr. Epp’s amendment; I can read what seems in the minds of my advisers a reflection of the Committee and is acceptable to us.

Would you permit me to read them?

Mr. Epp: Mr. Chairman, I would be willing if the Minister would read en français and I will be able to supplement in English

[French]

Mr. Chrétien: It is moved

That the proposed amendment to Clause 32 of the proposed constitution act, 1980, be amended by adding immediately after the new subclause 32(2) the following:

(3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions of any item on the agenda of a conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.

[English]

The Joint Chairman (Mr. Joyal): I would like to invite the honourable Jake Epp to move the proposed subamendment.

Mr. Epp: Thank you, Mr. Chairman. I would move, then, that the proposed amendment to Clause 32 of the proposed constitution act 1980 be amended by adding immediately after new Subclause 32(2) the following:

Participation of Territories.

[Page 28]

(3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions of any item on the agenda of a conference convened under subclause (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.

Mr. Chairman, it gives me pleasure to move that amendment, and I ask for the vote.

The Joint Chairman (Mr. Joyal): The vote is called on the proposed subamendment.

I see the honourable Senator Roblin would like to speak before the vote is called.

Senator Roblin: Mr. Chairman, I would just like to underline a point I have made previously, Mr. Chairman, and that is that the effect of this clause as far-as I can understand it is good for two years only; and that at the end of that two year period the constitutional convention and all that goes with it disappears into oblivion as far as the constitutional document is concerned.

I would just like to place that caveat on the record.

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

Subamendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to go back on the main amendment, identified as G-34, Clause 32, page 9.

Before calling the vote on that main amendment, Mr. Hawkes would like to make a comment on the proposed amendment.

Mr. Hawkes: Yes, Mr. Chairman. It concerns the intention of the government.

I would like the Minister, if he might, to address the following points. I continue to be concerned about the exact wording. I think Senator Roblin has pointed out that this provision exists for a period of two years only. The protection which the main amendment offers to the aboriginal people or their participation has a time limit of only two years on it.

There are three other items which the Minister could make note of and respond to.

But in the briefs which the aboriginal people presented to us, they expressed on most occasions considerable concern for the indirect effects of constitutional change. My particular question is: why does the Minister want to restrict it to direct effects and who, in fact, will determine the meaning of the word “direct”? What is the government’s intention there.

The second thing is that all aboriginal peoples briefs dealt with the issue of concurrence in future constitutional change as it would affect them and their culture.

[Page 29]

The issue of concurrence is not dealt with here. It may be in fact the government’s intention to deal with it somewhere else; but I would like the Minister to respond to that.

The third item is that the power of appointment of representation lies exclusively with the Prime Minister. It differs from the just passed subamendment. Subclause (3), where it is the elected people that should be invited by the Prime Minister; there is no such restriction in terms of the main amendment on the actions or behaviour of the Prime Minister.

What we are doing here is enshrining in the constitution of Canada the principle that the Prime Minister, and the Prime Minister alone, shall select the representation, using whatever criterion the Prime Minister wants.

I am wondering if the Minister could respond to those three items and give us some sense as to whether the wording adequately reflects the policy and intent of the government.

Mr. Chrétien: There is no legislative assembly governing those peoples as such. They have different associations which have traditionally been recognized by the national government.

The Prime Minister will have to pass a judgment as to who they are. Sometimes some associations represent the whole community and at other times they do not. It varies from time to time.

It is a political judgment the government will have to make as to who shall be there and they will live with the consequences of that judgment.

So that, for example, today it may be one thing and tomorrow it may be different. For instance, in the case of the Native Council of Canada, some of the Métis in some of the provinces do not belong to it. Some provincial associations do not recognize the national association.

But we have talked to the national association anyway. Some have come and made representations on their own. But at that time it will be in the light of the conference and probably in the informal discussions with those associations and other participants that there will be some decision as to who shall be there.

As to the question of concurrence, the problem is the same. They are not constituted in assemblies and we could not deal with them in terms of native assemblies. It would not be advisable and it is not our intention to do that.

As to the effect, this is to discuss an item on the constitution during the interim period which might be two or four years. It is an item agreed by the first ministers—the natives in the constitution. It will be for matters related to natives in the constitution. If the government refuses or neglects to look into one particular item they will be able to say, “You have not looked at that item.”

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

[Page 30]

I would like to invite Senator Austin to conclude on the proposed amendment.

Senator Austin: Mr. Chairman, as I have already done so once I would like to make my remarks stand.

Thank you.

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

Clause 32 as amended agreed to.

On Clause 33—Interim procedure for amending Constitution of Canada.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on the next clause on the proposed motion, Clause 33. On that very clause, the Chair has been informed of one amendment. It is an amendment introduced by the Conservative Party, the Official Opposition.

The purpose of that amendment could be achieved by inviting honourable members to vote “nays” when the clauses and discussions on that amendment are called as the Chair has done previously in the case of Clause 25 and Clause 26 of the proposed motion.

But I would like to repeat the contents of that amendment. It is the amendment identified as CP-16, Clause 33 to 40, pages 9 to 12.

As I have already said, such an amendment could be dealt with in the usual way which is to vote “nays” when the vote is called on Clauses 33 to 40 as we have done previously with Clauses 25 and 26.

The Chair is, of course, open to suggestions from the honourable Jake Epp on that proposed amendment.

Mr. Epp: Mr. Chairman, I will be very brief, and I will not be any more specific.

If you take a look at the amendment starting with CP-16, Clauses 33 and 40, as well as the statements made on the Tuesday when I released our amendments that we are opposed to any interim amending procedure as defined in Clauses 33 to 40, in each case we will be moving the deletion of every clause.

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

So, on Clause 33 as such, there is no amendment on the part of any other party around the table.

The honourable Jake Epp.

Mr. Epp: Mr. Chairman, Senator Austin earlier in private discussions with me—and I think I can reveal them now—was enquiring whether it would be advantageous to go directly to Clause 41 from Clause 32, in view of the fact that Clauses 33 to 40 are the mechanics, Clause 41 being the substance of the amending formula—Clauses 41, 42 and 43, and then go back to Clauses 33 to 40. If that is Senator Austin’s wish, that would be acceptable to us. But I await the government’s direction on that.

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

The honourable Senator Austin.

[Page 31]

Senator Austin: Mr. Epp, just to be clear, you mentioned Clause 41, 42 and 43. Do you have any objections to dealing with Clause 44 in that sequence?

Mr. Epp: No.

Senator Austin: And it goes logically with Clause 45 as well. It is agreeable to us to deal with Clauses 41 and 45 and then to come back to Clause 33.

Mr. Epp: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Before the Chair invites honourable members to address themselves to Clause 41, I would like to have the comments on behalf of the New Democratic Party.

Mr. Robinson.

Mr. Robinson: It is my understanding that the government has agreed, and the Conservative Party has also agreed, that we move forward. Certainly we would be prepared to accept that.

Clauses 33 to 40 inclusive allowed to stand.

On Clause 41—General procedure for amending Constitution of Canada.

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

I would like to invite honourable members to move on Clause 41 of the proposed motion.

Clause 41 is the first clause of part five of the proposed motion entitled, procedure for amending constitution of Canada.

[French]

The honourable members of the committee will now be called on to discuss Clause 41, the first clause of Part 5, entitled Procedure for Amending the Constitution of Canada.

[English]

On that very Clause 41, the Chair has been informed of two amendments at this point, an amendment moved on behalf of the Official Opposition, the Conservative Party, and another amendment moved by the government party.

I will identify the first amendment to be moved by the Official Opposition and make sure that all honourable members have a copy of that proposed amendment, before inviting honourable members to address themselves on that amendment.

The amendment is CP-17, Clause 41, page 12.

[French]

The first clause we will discuss is number 41, the first article of a new part of the proposed resolution respecting the constitution of Canada. This Part 5 deals with the procedure for amending the constitution of Canada. The first amendment is CP-17, Clause 41, page 12. This amendment was moved by the Official Opposition, the Conservative Party.

[English]

I see all honourable members have a copy of the proposed amendment and I would like to invite the honourable Jake Epp to move the amendment in the usual way.

The honourable Jake Epp.

[Page 32]

Mr. Epp: Mr. Chairman, I would move that Clause 41 of the proposed constitution act, 1980 be amended by striking out lines 12 to 38 on page 12 and substituting the following:

(b) resolution of the legislative assemblies of at least two thirds of the provinces that have in the aggregate, according to the then latest general census, a population of at least 50 per cent of the population of all the provinces.

(2) Where an amendment to the constitution of Canada is authorized under subclause (1) that affects

(a) the powers of the legislature of a province to make laws,

(b) the right or privileges granted or secured by the constitution of Canada to the legislature or the government of a province,

(d) the natural resources of a province, and the legislative assembly of a province has, by resolution, declined to authorize the amendment prior to the issue of the proclamation bringing it into force, the amendment has no effect in the province until the legislative assembly of the province by resolution approves the amendment.

(3) An amendment to this section may be made by a proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and the legislative assembly of eight or more provinces that have, in the aggregate, according to the then latest general census, a population of at least 80 per cent of the population of all of the provinces.

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

[French]

I would now like to invite Senator Tremblay to give us the official French version of the amendment that has just been read by Mr. Jake Epp.

Senator Tremblay: Thank you, Mr. Chairman. It is moved by Jake Epp:

That Clause 41 of the proposed Constitution Act, 1980 be amended by striking out lines 12 to 38 on page 12 and substituting the following:

(b) resolutions of the legislative assemblies of at least two thirds of the provinces that have in the aggregate, according to the then latest general census, a population of at least 50 per cent of the population of the provinces.

(2) Where an amendment to the Constitution of Canada is authorized under subsection (1) that affects paragraph

(a), the powers of the legislature of a province to make laws,

(b) the rights or privileges granted or secured by the Constitution of Canada to the legislature or the government of a province:

[Page 33]

(d) the natural resources of a province, and the legislative assembly of a province has, by resolution, declined to authorize the amendment prior to the issue of a proclamation bringing it into force, the amendment has no effect in a province until the legislative assembly of the province by resolution approves the amendment.

(3) An amendment to this section may be made by proclamation issued by the Governor General under the great seal of Canada where so authorized by resolution of the Senate and House of Commons and the legislative assembly of eight or more provinces that have, in the aggregate, according to the then latest general census, a population of at least 80 per cent of the population of all the provinces.

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

[English]

The honourable Jake Epp to introduce the amendment in the usual way.

Mr. Epp: Mr. Chairman, are you not going to move the New Democratic Party’s amendment at this time?

The Joint Chairman (Mr. Joyal): I am not at this time informed that there is an amendment moved by the New Democratic Party at this stage.

The other amendment the Chair has been informed of is an amendment which should be moved on behalf of the government party and the Chair does not interpret that amendment as being a subamendment to the main amendment introduced by the Official Opposition.

Mr. Epp: Thank you, Mr. Chairman.

I would then like to introduce our amendment to Clause 41.

Mr. Chairman, obviously the key towards the adoption through an agreed amending formula of any constitutional change such as the Charter, for example, is agreement on that formula, that is on the amending formula.

It is the basic, undergirding arrangement whereby the partners of the federation determine the manner in which change to the constitution shall be made.

It is an essential cornerstone of my party’s constitutional approach that such an agreement lies within the Canadian reach.

We believe that in fact it has already been achieved in principle. The federal-provincial discussions all summer when they related to the amending formula issue revolved around only one model, the model that has now been termed the Vancouver consensus.

1200

Mr. Chairman, there is no doubt that a majority of the provinces prefer it, and the rest in our judgment, and judging from the statements of their First Ministers, would be prepared to live with it for the sake of putting the present national disunity behind us; and I appreciate the comments of those First Ministers who have made those statements.

[Page 34]

The Prime Minister’s proposal, the so-called Victoria formula, is not now and cannot be made to be acceptable to the majority of the provinces. I repeat that: the Victoria formula, that is the old Clause 41, the Prime Minister’s proposal, cannot be made to be acceptable to the majority of the provinces. That is a fact of life in Canada in 1981 and that must be stressed.

The reason it is not acceptable to the majority of the provinces is that it discriminates between provinces and it provides no adequate guarantee that fundamental provincial interests, especially in fields of resource jurisdiction so critical to both the western and the Atlantic provinces, are safeguarded.

Only this morning, Mr. Chairman, a CP story out of Regina says that Premier Allan Blakeney has turned down an offer by Ottawa designed to move the Premier to the federal government’s side on the constitutional debate. And the rejection by the Premier of Saskatchewan to the proposal that I take it is being made by the Leader of the New Democratic Party later this week, and which has approval of the government, is now rejected by the Premier of Saskatchewan who it was initially to protect.

That Premier himself now feels that that protection will not be inherent in that resolution. Under the Victoria formula, those rights of resources would not be safeguarded.

Mr. Chairman, it is for that reason that the federal government never even put the Victoria formula on the table last summer. They knew, the government knew, that it would not be supported by a majority of the provinces.

For example, the Ontario Minister of Intergovernmental Affairs, the honourable Tom Wells put it the other day, and I quote him:

The Ministerial discussion revealed that neither the Victoria formula of 1971, nor the Toronto formula of 1979 had sufficient support to warrant reconsideration

So the government’s formula makes sense only if you believe that an amending process as a fundamental first constitutional change, can properly be put in place unilaterally by one level of government acting alone, and that is important; that the federal government has decided it can act, if not unilaterally, with absolute minimal support of one or possibly two provinces, and even one of those two having indicated that there was not majority support for the government’s proposal.

Additionally, Canadians in massive numbers—the latest indication, 64 per cent—do not believe that the federal government should have the right or the power to unilaterally impose the very fundamental law of change in a constitution, namely the amending formula.

Mr. Chairman, so much then for the Victoria formula.

[Page 35]

But I want to go on further to show the weakness of the Victoria formula a little later on. The Vancouver formula has two main features: first, it allows the constitutional amendment to be effective when Parliament and the legislatures of any seven provinces making up at least 50 per cent of the population approve it.

So no provinces are discriminated against or given special powers such as veto rights, but rather have the ability to exercise their power through the fact of numerical population numbers.

Second, the formula lets up to three provinces declare that they will not be bound by an amendment, but only if the change would take away from provincial responsibilities in four respects, the rights of the legislature; its exclusive powers; the property and territory of the provinces and its natural resources.

All of those provincial rights have been with us since 1867, with the exception of the prairie provinces in terms of the natural resources which was granted by the same terms in 1867 in the 1930 Natural Resources Transfer Act.

None have ever been invaded in a constitutional manner. Several of our provinces, such as Manitoba, British Columbia, Prince Edward Island and Newfoundland joined an already existing Canada on the basis of the guarantee of just such provincial rights.

It is hardly unreasonable that most of the provinces today want iron clad guarantees for the protection of just such rights.

Mr. Chairman, what about the Victoria formula apart from the fact that it does not enjoy majority support? Could we do under Victoria what has already been done by agreement? And the answer is a resounding “no”. And I give you but two examples to prove the point.

If the Victoria formula had been place when Medicare was introduced, if that formula had been in place neither of those plans would have been accepted because in each case it was one of the provinces where you need their support under the Victoria formula, which rejected the proposal, and it was only later on that they accepted through opting in.

And so the Victoria formula, not only does it not enjoy majority support of the provinces, it does not enjoy majority support of the people. And in fact, if it had been in place, several provincial agreements which now are held very dear to Canadians, would not be in place.

Of course, amendments affecting these areas, going back to Vancouver, may pass anyway under the formula with up to three provinces not bound and continuing to exercise the powers they have always had. I would submit that if a proposed change in even those categories was obviously in the interest of the citizens of those provinces, they would make sure to pressure their provincial legislatures to join in as well.

Once in, those provinces would be as constitutionally bound as anyone else and there would remain the whole broad sweep

[Page 36]

of areas for amendment that affect the federation generally, namely, such areas as the Senate, the Supreme Court, equalization payments, national institutions and so forth.

We all know around this table that the national institution is one are that needs much discussion and is not receiving sufficient discussion around this table. I just have to take a look at Clause 44 to give indication of that fact.

Mr. Chairman, it is an amending formula that fits realistically into Canada because Canada is not only a federal country, but a diverse country.

Mr. Chairman, we also propose a means whereby on the basis of very solid national consensus Parliament, both houses, plus eight provinces comprising 80 per cent of the population, that the amending formula itself can be amended.

The federal government likes to say that our party is insisting on unanimity. I think our amendment would very clearly point out that that is not the case.

Mr. Chairman, why does Victoria not work, apart from the points I have already made.

There is a deep seated feeling in Western Canada, a deep seated feeling in Western Canada that the Victoria formula while it may have been agreed to in 1971, does not take into reality the situation of the West in 1981, 10 years later.

It should also be pointed out that as early as 1974, 1975, the governments of the West, principally Alberta, at that time already said, “Victoria is not acceptable”.

So the Minister and the Prime Minister should be very clear that they do not have consensus on Victoria, and if they insist on Victoria, it is unilateral. But additionally, the point must be made, Mr. Chairman, that what Victoria does is entrench a centralist system which is not reflecting the new reality of the West. And I say to the Minister if he insists on that, the alienation which now resides in the West, and I use the word “alienation”, the alienation that resides in the West, based on the constitution, based on the feeling that the West is not part of the central decision-making action of the federal government, of Ottawa; and based also additionally on the present argument over resources and resource ownership and resource revenue sharing.

I say to the Minister, if he imposes Victoria, that the alienation in the West will deepen, substantially.

The Minister will also recall that when he brought in the Victoria formula, and after there were discussions with and about Prince Edward Island, namely that Prince Edward Island was dealt out of the Confederation package, that he was willing to remove or withdraw the 50 per cent requirement for Atlantic Canada, thus requiring only two provinces out of the four in Atlantic Canada to either accept an amending formula, an amendment to the constitution, or reject it.

[Page 37]

At that time the Minister will recall that I asked him whether he would do the same for the West, and he said if I would move an amendment along those lines he would consider it. I believe those were his exact words.

Mr. Chairman, I will not move that amendment, and I cannot, and I want to give the reasons why.

First of all, as I have already said, the Victoria formula is inequitable, inequitable to the West. If I bring in the 50 per cent, the argument can be made that the provinces of Saskatchewan and Manitoba gain additional strength, though while not enjoying 50 per cent in total, 50 per cent of the population of the West, they at least would be able to hold up amendments which would be detrimental to their well-being.

But by the very token, if I do that, I deny for British Columbia and Alberta any additional responsibility they might enjoy because of the greater population that they have. And so, no matter how I manipulate the Victoria formula, which I believe is just not equitable, no matter how I manipulate it the fact remains that I cannot bring equity into a formula that is based on inequity.

What about the so-called checkerboard effect of the Vancouver amending formula? I have no better proof, Mr. Chairman, of that situation than quoting again the honourable Tom Wells of Ontario. He and his own province have their own preference as to an amending formula, but Mr. Wells has said about the negotiations last summer on this point about the Vancouver approach and I quote him:

In the end, the Ministers decided that the risk involved was an acceptable one pn the grounds that the potential difficulty would itself serve as an incentive to ensure broad support for any constitutional amendment.

Mr. Chrétien: Why do you not carry on a little bit in the quotation?

Mr. Epp: Let me finish.

Mr. Chairman, in terms of that quotation, I know the Minister and I struggled over this point, and I have been very candid about it, candid that there are certain areas of Vancouver that in my mind had not been completed, and should be completed. That is why we have been calling constantly for a First Ministers’ Conference to discuss patriation and to discuss and finalize the amending formula.

I am being very candid with the Minister on that point, when I say to him that I do not believe that work is totally completed. It is for that reason, Mr. Minister, I am glad you suggested it. It is for that reason that at this time I want to indicate to you and to members of the Committee and members of the public that we will be moving a further amendment to the British bill which I believe will take care of the issue that you raised. That is a valid issue. I have an amendment to the British bill, which of course, under the rules of the Chairman I cannot present at this time, but I want to say to the Minister we will set out, and I believe in a logical manner, the approach we believe could break the deadlock and which could bring about consensus.

Mr. Chairman, that is a long amendment. I do not think it would be wise, in terms of the Committee time, for me to read

[Page 38]

it now, but I would be willing to circulate it as soon as I am through. It could become part of our discussion, even though we will move it when we are on the British bill, but I want to mention that to the Minister as well.

I say to you, Mr. Minister, I have been very candid about it about the Vancouver formula, and I suggest that you are a candid person as well and would agree that the Victoria formula results in the inequities that I have mentioned to you; that you would agree that the consensus that you say was there in 1971, and I do not deny it, had already eroded and broken down by 1974, 1975.

So when you deal with your consensus, you do not have consensus in 1981.

So, Mr. Chairman, in conclusion, I will circulate the British bill amendments which we have, which I believe could become part of this discussion; which we believe could break the deadlock; and which we believe could result in consensus on the very fundamental law undergirding the constitution.

Thank you.

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

Senator Austin: If I might ask Mr. Epp to identify the document he was reading from and, as he has referred to it, agree that it be put into the record of the Committee.

Mr. Epp: Mr. Chairman, that is agreeable to me. The document that I am reading from is in fact a letter from the honourable Tom Wells in reply to one addressed to him by Mr. Yurko of our caucus committee. There are additional sections I think could substantiate, but that is the quote I was taking it from.

I believe it has been circulated, Senator Austin, but if not I would be very willing to do so.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Austin. Mr. Robinson, followed by Miss Campbell.

Mr. Robinson: Mr. Chairman, before I make a few remarks on this proposed amendment I would like to just ask a couple of questions.

First of all, Mr. Epp, could you please clarify the reference that you made to the British bill and the proposed amendment to the British bill. What is it that you are referring to there?

Mr. Epp: I will ask Mr. Tremblay to answer that because he will be leading us on the British bill amendment, if you do not mind.

Mr. Robinson: Specifically when you talk about the British bill what is it you are referring to?

[French]

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

Senator Tremblay: Mr. Chairman, with your permission, I would simply like to underline once again that the resolution

[Page 39]

we are studying is divided into three parts: There is an address, a British bill, and the constitution act of 1981.

When we talk about the British law, we are referring to what in the text is called An Act to Amend the Constitution of Canada. That is the complete title, but the abridged version is The Canada Act. That is what Jake Epp has called the British law. We mean by that the whole of the proposed resolution before us, which would presumably be adopted by the British parliament in accordance with the request contained in the address.

[English]

Mr. Epp: Mr. Chairman, just on a point of order, excuse me, Mr. Robinson for interrupting, the letter that I referred to I should, I have been advised and been corrected, I have not had approval to release the letter. I know that the Minister has a copy and I think it has been in the public domain but I want to make sure that that is very clearly understood.

1220

Mr. Chrétien: If I can interject on that, I have talked about this letter with honourable Tom Wells and the understanding I had is that he had no objection to our using that letter because it was in the public domain. So I think that he will not object but I see his representative here, so—but he told me that I can use it so I presume he told you that you can use it, so perhaps you and I can table it.

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

Mr. Robinson.

Senator Connolly: Mr. Chairman, on a point of order, I do not know whether Mr. Robinson was going to raise the point but in connection with the suggestion made by Mr. Epp that he would move an amendment to the, British bill but that he would not do it at this time, and that is fine.

Would he indicate what section of the British bill he would propose to amend and what the general tenure of the amendment is without giving us the detail if it is long?

[French]

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

Senator Tremblay: Mr. Chairman, I think the easiest way to explain the situation to the members of the committee would be to proceed in the way Jake Epp had planned, i.e. make everyone aware of the amendments that we will present concerning the Act to amend the Constitution of Canada, which is the second part of the proposed resolution we are studying.

Therefore, with your permission and with that of the members of the committee, we could perhaps distribute the text of these amendments, where all the members will find the answers to the questions they are asking themselves. We cannot of course deal directly with these amendments at the present stage, since we are now studying the constitution act, 1981. However, without knowing what we intend to propose concer-

[Page 40]

ning the act to amend the constitution it is difficult to understand the position adopted by Jake Epp concerning Section 41.

Therefore, if everyone is in agreement, we will simply distribute the text of these amendments which will be brought up when necessary, according to the procedure we have decided to follow.

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

[English]

Mr. Robinson, I would like to invite you to go on.

Mr. Robinson: Thank you, Mr. Chairman.

I would like to…

[French]

Senator Tremblay: Do we have any agreement on that?

[English]

The Joint Chairman (Mr. Joyal): Oh, yes. The Chair has not seen any opposition around the table and in fact it has always been the agreement that any amendment that could be circulated earlier than the time that the amendment is called by the Chair is of benefit to all honourable members because they have time to read it, study it, think about it and make up their mind as to how they will vote finally.

So that is not only acceptable, I think it is more than welcome.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, I will try once again.

Speaking on behalf of the New Democratic Party in response to the proposed Conservative amendment, I want to indicate immediately that we reject the proposal. I am sure that is no surprise to my Conservative colleagues but I would like to explain the major reasons why we are opposed to this particular amendment.

First of all, Mr. Chairman, Mr. Epp made some reference to what has been referred to as the checkerboard effect of the proposed Vancouver formula, and I believe that it is very important, very fundamental that Canadians who are observing the porceedings of this Committee, and who are listening with interest to the deliberations of this Committee, should understand the impact that this amendment would have upon their rights because, Mr. Chairman, what the proposal of the Conservative Party is, is quite simply this:

Wherever an amendment might effect the powers of the legislature to make certain laws, that that amendment could only be implemented with respect to that province when that province consented.

Now, Mr. Chairman, the areas of this proposed package which would be affected by this amendment must be very clearly understood and I would like to give some examples of the impact that this would have.

First of all, Mr. Chairman, on Friday of last week it was accepted that at long last we should recognize and affirm the treaty and aboriginal rights of Canada’s aboriginal peoples. Well, Mr. Chairman, the effect of this amendment would be unquestionably to do the following: to say to Canada’s aboriginal peoples that they have certain rights at the federal level.

[Page 41]

they have certain rights at the territorial level, but that the only rights which they have at the provincial level arc those which the provinces decide to grant them. That, Mr. Chairman, is the effect of the Vancouver formula. What was given on Friday could be very easily taken away on Monday or Tuesday.

We know the attitude very clearly of many of the provinces with respect to this important question of our aboriginal and treaty rights, and what the Conservative Party is saying to Canada’s aboriginal peoples is that it is up to the provinces; we are not prepared to take the initiative and to say that these rights should be recognized right across Canada, both at the federal and provincial level. We will let the provinces decide whether your rights, your aboriginal and treaty rights, are to be respected.

Mr. Chairman, the Conservative Party is telling Canadian women that equality rights are all well and good when it comes to the federal level, we think these are very important and very fundamental when it comes to the federal government, but just a minute, we are not going to tell the provinces that women in Canada must have these rights protected at the provincial level as well. We will let the provincial Premiers decide, we will let the provincial legislatures decide whether Canadian women are to have fundamental protections and fundamental rights at the provincial level. We will let Sterling Rufus Lyon decide for the women of Manitoba whether Manitoba women are to have equality rights, because that is the effect of the Conservative amendment.

Mr. Chairman, the handicapped of this country are being told that it is all very well at the federal level, we support your rights to full equality at the federal level but it is up to the provinces of this country to decide for themselves whether or not you have these rights at the provincial level.

Mr. Chairman, it has to be understood very clearly that that is the effect of this proposed amendment, that unions in this country can be told it is all very well, we recognize the principle of freedom of association, very important principle, we think it is great but it is up to the provinces to decide whether the trade union movement in this country is to have the freedom of association within their jurisdiction.

Mr. Chairman, I suggest that we must reject any possibility of a checkerboard of rights in this country, of one set of rights for the people of Hull, and then those people cross the Ottawa River, and another set of rights in Ottawa; because if rights belong to anybody, they belong to the people of Canada, as I said on Saturday. They do not belong to Sterling Lyon, they do not belong to Bill Bennett, they do not belong to Brian Peckford or any of the other provincial Premiers; they belong to the people of Canada and what the Conservative amendment is saying is that the only rights you get, men and women of Canada, are the rights that the provincial Premiers decide to give to you, and we reject that.

Mr. Chairman, there is another aspect of this, and I am surprised that Senator Tremblay would not address himself t this aspect, that is that there is no recognition in this proposed amending formula of the fundamental rights of the people of Quebec to be protected, particularly in the areas of language

[Page 42]

and culture. These are the areas which historically have been of such great importance to those people, and the amending formula which is proposed by the Conservative Party tells the people of Quebec we do not care whether your rights are over ridden because this only requires two thirds of the provinces that have 50 per cent of the population; there is no special recognition given to the Province of Quebec in the Conservative amendment, and this represents a denial of a very fundamental and very real historical fact in this country, a denial by the Conservative Party of the right of the people of Quebec to veto changes which fundamentally may affect them.

It represents a denial, Mr. Chairman, of the rights of the francophone minorities in provinces outside Quebec to be protected because any province can say: we do not accept that, we the Province of Manitoba do not accept that the francophones have certain rights.

So, Mr. Chairman, for that reason as well, because of the denial of the right of Quebec to exercise a veto on fundamental constitutional changes, we reject this proposal.

Finally, Mr. Chairman, there is another aspect of this proposal which must be very clearly understood, and that is this: the Conservative Party is proposing that the Senate of Canada should have a perpetual veto over all changes to the constitution.

Mr. Chairman, as it stands now there is a clause in this package. Clause 44, which must remain in this package, which says that we will listen to Senators but they will only have a suspensive veto. That clause must remain, but, Mr. Chairman, my understanding is that the Conservative Party is suggesting perhaps down the line that that should come out, and that the Senate of Canada should have a veto over any changes whatsoever.

The Senate of Canada, which is a body with a perpetual veto, a nonelected body, a body, Mr. Chairman, which is, as we know, and I say this with great respect to the Senators on this Committee, is riddled with patronage and which was initiated, Mr. Chairman, to thwart and subvert the democratic processes in this country.

Some hon. Members: Order, order.

Mr. Robinson: That is why Sir John A. MacDonald brought it in, Mr. Chairman, that is why…

Some hon. Members: Order, order.

Mr. Robinson: That is why he proposed the Senate of Canada, it was because he was afraid of the democratic process in this country and he wanted a nonelected body that might have some influence over the excesses of democracy, this body which, as I say, has been historically riddled with patronage.

So Mr. Chairman, I conclude by saying that on those three grounds, on the grounds that this amendment would create a checkerboard of rights right across this country, on the ground that it denies the right of the people of Quebec a veto which they must have, and on the grounds that it continues a

[Page 43]

perpetual veto by a group of Senators who have no legitimacy as far as I am concerned whatsoever in terms…

Some hon. Members: Oh, oh.

Mr. Robinson: In terms of a mandate, an electoral mandate from the people of Canada, they are responsible to no one; on those grounds, Mr. Chairman, we reject this particular proposal.

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

The honourable Minister of Justice has requested of the Chair an opportunity to speak and the Chair sees the clock and I wonder at this point if the honourable Minister would like to get the consensus of the honourable members to go on or that he further open this debate at 3:30 p.m.

Honourable Minister of Justice.

Mr. Chrétien: I thought that the Committee was to adjourn at 12:30 p.m. and have a meeting right away, but I intend to speak on behalf of the government at 3:30 p.m.

The Joint Chairman (Mr. Joyal): Thank you very much. So it being 12:30 p.m. the meeting is adjourned until 3:30 p.m. this afternoon.

[French]

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

[English]

AFTERNOON SITTING

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

May I invite honourable members to take their seats so that we can resume consideration of the proposed resolution on Clause 41 as we agreed earlier on today.

Before I call our next speaker, I would like to report to honourable members that the Subcommittee on Agenda and Procedure of this Committee met on Monday, February 2, 1981, and agreed to make the following recommendations:

(See Minutes of Proceedings and Evidence.)

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

Mr. Epp: Mr. Chairman, on behalf of our party, the eighth report agrees with what I believe was the discussion at the conclusion.

I move that the eighth report of the Subcommittee on Agenda and Procedure be adopted.

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

Motion agreed to.

Senator Austin: Mr. Chairman, on a point of privilege, I would like to address a remark that was made by Mr. Robinson this morning. I did not have the opportunity to reply to it because the Chair adjourned the meeting at 12:30 p.m. just as Mr. Robinson closed.

My point is on behalf of all honourable senators who are members of this Committee, whether on this side or on the Progressive Conservative side. It has to do with Mr. Robinson’s reference to the Senate as patronage ridden.

I want to say to Mr. Robinson that he, almost at the van of all members of this Committee has emphasized the point of

[Page 44]

individual rights and the high level of onus that ought to be required to intervene or interfere with anyone’s standing or rights and I know sometimes his enthusiasm will carry him a little too far. If he wishes, of course, to make charges with respect to some form of patronage that is improper or illegal, I am sure he would advance them; if he knows of some activity by any Senator that is within the definition of patronage ridden as he uses it, perhaps he could disclose it to us but the general and generic kinds of references I think are not properly respectful of the class of Senators and I would ask him to withdraw his use of those words.

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

Mr. Robinson, before you answer or reply to honourable Senator Austin, the Chair of course listened very carefully to the last part of your intervention this morning and was concerned at first that your references to the Senate were not really appropriate in the context of the proposed amendment, there is nothing as such in the proposed amendment, so moved by honourable Jake Epp, that deals with the Senate as such, and the Chair was about to interrupt you, as a matter of fact, to call on you and draw your attention to the fact that I would have invited you to address your comments on the content of the amendment.

And the Chair took notice during your intervention that you made some references to premiers of provinces of this country, and we have previously agreed last week that when one of the honourable members would refer to a premier of one of the other provinces of Canada, that when the name was mentioned we should refer to those premiers in terms of honourable in order to keep a proper level of discussion, and with the due respect of this Committee should support and should address to those honourable gentlemen and ladies.

Now, before I invite you to reply to honourable Senator Austin, which I think is a question that needs to be answered fully, I wanted to address to you those remarks.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, I listened with interest to the remarks of my good friend Senator Austin who made some interesting points.

1 want to emphasize, Mr. Chairman, that my remarks with respect to the Senate were made in the context of speaking on the amendment put forward by the Conservative Party which would have, together with another amendment, preserved the absolute veto power of the Senate in any constitutional amendments which would have been put forward, so, Mr. Chairman, I believe with respect that because that was one of the concerns we have in this motion, that I wanted to emphasize why we felt it was inappropriate that the Senate should retain that power.

Mr. Chairman, since I made my remarks I have had an opportunity to do some research and I want to tell Senator Austin very frankly that I have no intention of withdrawing my remarks, I would repeat my remarks that the Senate is riddled with patronage and historically has been riddled with patronage and I am quite prepared, Mr. Chairman, to substan-

[Page 45]

tiate those remarks with extensive evidence both from scholarly text, by reference to the qualifications of Senators past and present, and I intend no reflection upon my colleagues around this table from the Senate. If I had my way this would be a deliberative body made up of elected representatives of the House of Commons, but it is not for me to make that decision.

However, Mr. Chairman, it is my view that without any doubt the remarks that were made by Sir John A. MacDonald back at the time of the foundation of the Senate, and I referred to them in passing and I will refer to them again now, in justifying the existence of the Senate, namely, and I quote from sir John A. MacDonald:

the rights of the minority must be protected and the rich are always fewer in number than the poor.

Said Sir John A. MacDonald in defending the Senate. Sir John A. MacDonald also said this:

It must be an independent house, having a free action of its own, and that the Senate must be the body which protected property.

Mr. Chairman, I say that the Senate, if one looks at the history of the appointment process and, as I say, I am quite prepared to quote academic texts, for example, I have an article by Mr. John McMinnemy, who is associate professor of political science, who points out quite clearly the overwhelming corporate connection as well as the political party connection.

So, Mr. Chairman, with great respect to the individual members of this Committee, I say the Senate is a body which historically has been ridden with patronage and I would quote from a member from time to time of this Committee, Senator Lowell Murray, who was, naturally, appointed by the Conservative Party, and his statement was this, with respect to political patronage in the Senate:

Political partisanship is the foundation, not just of our electoral system, but of our Parliamentary process and of our democratic system.

Mr. Chairman, to conclude, I am not going to give an extensive list of examples, but I would point out that, for example, the past presidents of the Liberal party have historically automatically been made members of the Senate, Richard Stanbury, Alastair Graham, Jean-Pierre Côté, past Quebec President; Jean Marchand, who was a Quebec president; Keith Davey, National Campaign Chairman; Royce Britt, Campaign Chairman of the Ontario party; John Godfrey, Liberal bagman extraordinaire.

Mr. Chairman, I could go on and on. I have no intention of withdrawing a statement which happens to be a statement of fact.

Mr. McGrath: Mr. Chairman.

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

Mr. McGrath: Mr. Chairman, Mr. Robinson seems to miss the point completely, unfortunately. Surely, we are not adding to the decorum of this Committee, and decorum is very important to this Committee. It is an unusual Committee, first of all, it is unusual in terms of the reference we are dealing

[Page 46]

with, the constitution; it is unusual in terms of it being broadcast by television. I think it is a little extraordinary in terms that it is a Joint Committee.

Now, if we are to have decorum, Mr. Chairman, surely we have to respect each other, we have to respect the House that we represent. If an honourable Senator were to say that he believes all members of the House of Commons are political hacks, I do not think there is any self-respecting member of the House of Commons who would sit here and take it.

Now, that may be in order, but it is certainly not going to lead to decorum.

The Joint Chairman (Mr. Joyal): Before the Chair invited other honourable members to make an intervention on the proposed question of privilege, the Chair would like to draw the attention of the honourable member to Standing Order 35 of the Standing Orders of the House of Commons, and I will read:

No Member shall speak disrespectfully of Her Majesty, nor of any of the Royal Family, nor of His Excellency or the person administering the Government of Canada; nor use offensive words against either House, or against any Member thereof. No Member may reflect upon any vote of the House except for the purpose of moving that such vote be rescinded.

And I would like to read again:

…nor use offensive words against either House.

And that in my mind is an appropriate clause of the Standing Order and I wanted to point it out before I invite other honourable members to take part in the debate.

Honourable Senator Roblin.

Senator Roblin: Mr. Chairman, thank you for allowing me to say a word on this interesting topic because I really do not intend to lend myself to a full-blooded defence of the Senate as part of our constitutional system in Canada because I do not think it requires any such endorsement from me.

And I dare say that, along with many other political body or bodies in which politicians have a hand, there may well be an element of patronage to be found. I think you could look at almost any board or commission appointed in the province of Saskatchewan, or perhaps even in Manitoba, to say nothing about Canada and British Columbia, and find that patronage is not unknown.

But to conclude from that that the Senate is inherently a vicious body, which is the conclusion that I drew from what Mr. Robinson has said, I think it is carrying a good thing, as far as he is concerned, just a little bit too far.

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Now, I cannot tell you how all the members of the Senate were appointed. But I think, in simple justice to the present Prime Minister, I have to say that he deserves either the credit or the blame for having appointed me!

[Page 47]

My colleague, Senator Asselin, is in the same position. I think that when he appointed me he was under no illusion that I was to go there as a beneficiary of political patronage and, therefore, to do what I was bid. I do not think he expected me to do that.

I dare say I have not disappointed him in that particular respect!

It is also interesting to note that some of my colleagues who got in the Senate through the auspices of the present Prime Minister include the former Premier of Alberta, Mr. Manning, the former Premier of Nova Scotia, Mr. Smith—none of whom were particularly noted for their belief in Liberal doctrine; although I must say that a couple of liberal premiers did get in—Mr. Hicks and Robichaud; but they were thoroughly outnumbered by us foreigners in that respect.

So I cannot speak for the great bulk of the people who were appointed to the Senate.

I dare say that I do not think it is necessary to deny that patronage is a factor in these matters, because undoubtedly it is.

But to conclude from that that the Senate is worthless is really, I think, going a step too far.

I, myself, have ambitious plans to reform the Senate to make it a better place. I have no objection to anyone saying that it is not perfect. I am the first to join in that particular criticism of the upper chamber in Canada.

But I firmly believe that an upper chamber is necessary and the present one is the best we have at the present time, and we have to make do with it.

I am put back to that position.

But when the opportunity comes, when the Conservative Party assumes the reins of office after the next election…

An hon. Member: It would not be the other place!

An hon. Member: It would be a better place!

Senator Roblin: Well, somebody says it would not be the other place, but it would be a better place. I do not know about that.

In any case, I tell Mr. Robinson that hope is not lost and there is plenty of room for a better Senate; but slanging it at the present time is not the way to advance towards progress.

While I am on the topic of privilege, perhaps it might be well for me to say a word in defense of a man who cannot be here to speak for himself, and that is the present Premier of Manitoba who came in for a great deal of offensive chit chat from Mr. Robinson this morning in a way which I think did nothing to enhance his reputation for being a man of equable views, while I am the first to admit that Sterling Rufus Lyon, as he has been referred to—I prefer to call him the honourable the Premier of Manitoba—is a man who is open to political criticism, I think the grounds on which it was raised this morning were questionable, because the implication was that

[Page 48]

this was a man who would do nothing for the French language, nothing for private schools, nothing for women!

I think any unbiased examination of the record will show that is not so; because Mr. Lyon was a member of an administration in Manitoba which opened the door, broke the log jam of 70 years of prejudice, if I may say so, against the French language in the Province of Manitoba, and 70 years of prejudice against the private schools in the Province of Manitoba!

He was a member of a government which opened the door and brought in a little light and fresh ventilation on those interesting public issues.

When he became premier himself—and let this be noted to his credit—he completed the work that was begun in providing full facilities for the use of French in the schools of Manitoba, as he has done, and also in providing support for the private school in the Province of Manitoba to bring it back to where it was in 1890.

Now, it took a long time to do it and it took three administrations to carry it through, but Mr. Lyon deserves to have it said to his credit that he had some connection with these issues.

And I have to say, in connection with the rights of women, that although he did not approve of the right of the status of women with respect to property rights which was before the legislature at the time he assumed office, he reopened the issue and while I am not prepared to say that everyone agrees with what he has done, nevertheless what he did do was a very substantial improvement in the property rights of women, particularly in connection with marital situations that never existed in the province before and I think was a step forward.

So to say that this man with all his defects—because he is human like all the rest of us—was insensitive to these issues to the point where he could not be relied upon to do anything, is, I think, a grave injustice to that gentleman.

I think that while I am not sent here to defend him, yet in view of the fact that he is not here to speak for himself, it behooves me to say to Mr. Robinson that, while I accept criticism as legitimate, I think the sweeping and unheeding manner in which he presented his criticisms both of the Senate and of the Manitoba government at the present time, do not help us in our job here. Those kinds of criticisms can well be exploited in other arenas than this present Committee.

I hope we can dispose of this matter quickly and get back to the job that we are supposed to be doing.

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

I see that Senator Austin wants to conclude.

Senator Austin: Mr. Chairman, I heard Mr. Robinson’s comments, and I am quite prepared to let him off the hook, because I think he has satisfied me that his remarks were entirely directed in the way of political criticism which, in my view, was excessive, as Senator Roblin has said.

However, my concern was that he was in some way creating the innuendo either of illegal or ethically improper activity in the Senate.

[Page 49]

I see he is shaking his head—and I understand him to mean no.

I believe the matter is, in effect, settled. It is a situation in which, as one honourable member of the House of Commons once said in an undying phrase, “I would not like this Committee to degenerate into a political forum.”

Thank you, Mr. Chairman.

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

Mr. McGrath: Mr. Chairman, but we have a little thing here called the rules; and the Chairman has cited the rules. Under the rules I think Mr. Robinson clearly has an obligation either to modify or to withdraw his remarks, in my opinion.

The Joint Chairman (Mr. Joyal): As I said earlier in reading Standing Order 35 of the proposed standing order, it clearly states that no member shall speak disrespectfully of Her Majesty or of any of the Royal family nor of His Excellency or the person administering the Government of Canada, nor use offensive words against either House or against either member thereof.

That, I think, speaks for itself.

If an honourable member raises the standing orders of the House, it is, of course, up to the Committee to discipline the particular honourable member.

But at this point I understand that Senator Austin was satisfied with the answer provided by Mr. Robinson.

So, unless another gentleman who feels aggrieved and raises the issue, that is the way the Chair at this point is seized of the question.

The honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, following upon Senator Austin’s remark, maybe Mr. Robinson would see the wisdom of at least clarifying the manner in which he meant it, whether he was talking about the process in general or was being specific about various senators.

If he would care to clarify that, I think it would go a long way towards satisfying everyone.

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

Mr. Robinson: Mr. Chairman, I do have further documentation if that is what Mr. Mackasey is referring to.

Mr. Mackasey: Mr. Mackasey is trying to provide you with an opportunity to retire from an embarrassing position with some grace, if you do not have the intelligence, then I cannot do any more to help you.

Mr. Robinson: Mr. Chairman, Mr. Mackasey knows very well that the remarks I made were made in the context which Senator Austin referred to, and that was that historically and at the present time there cannot be much question but that the Senate is a House which is riddled with patronage.

That was not a statement which was made to be vicious, as Senator Roblin suggested. I did not say that the Senate, was worthless, to use another word that he has used, though I might have said that. What I said was that the Senate was riddled with patronage.

[Page 50]

As I say, I do not know that Committee members want to prolong this, but I am perfectly prepared to back up my charge with a detailed examination of each appointment to the Senate.

Mr. McGrath: Mr. Chairman, if he does not want to withdraw, then let us proceed.

The Joint Chairman (Mr. Joyal): Well, at this point I would read another extract from Beauchesne a leading authority on order and decorum.

The Chair has to do it, because Canadians who are listening and seeing us at work, are entitled to know what the rules are which bind us when we sit around such a table under such terms of reference. The House rules have been very clear in that respect.

I would like to read them.

A committee has no authority to punish one of its members or other person for an offence committed against it, as by disorderly words or contemptuous conduct for example, when a witness refuses to testify or prevaricates. The Committee may only report such offences to the House for its censure.

The Chair would not like to leave the impression with the public that at this point anyone around this table can say anything and get away with it.

That, I think, would be unfair to the Canadian public listening and watching us in action.

There is a propter way of reprimanding someone, and it is in the House. This Committee has authority in its report to make the proper recommendation.

I understand that if members think or decide accordingly when the time comes to make recommendations they will take that into consideration.

I see no other speakers on that point at this moment, and I would like to give some idea to honourable members of those honourable members who have made a request this morning to speak following the motion moved by the honourable Jake Epp.

I have the honourable the Minister of Justice who would like to speak on that very amendment, followed by the honourable Senator Tremblay; the honourable Senator Austin; the honourable Senator Roblin; Miss Campbell, and the honourable John Fraser and Mr. Nystrom.

I have a pretty long list of speakers on that important amendment.

I would like to invite at this point the honourable the Minister of Justice.

Mr. Chrétien: Thank you very much, Mr. Chairman. I do not propose too long. But I have to make a statement because I was one of the participants during the summer. I think, you know, that what Mr. Epp is proposing is the so called Vancouver consensus which was based upon the Alberta formula.

I would like to make a few comments about it. I subscribe to some of the points made by Mr. Robinson; but I must tell you, in short, Mr. Chairman, that they have not only added to it but have also subtracted from it some very important features

[Page 51]

of this amending formula as compared to the draft which existed some time in the summer.

Mr. Chairman, this is a formula which has never been accepted, though it was discussed.

In the summer, when we were there, we said we knew what it was—the Victoria formula; all the Minister said, “We do not have to lose time about what is the Victoria formula. We know what it is.”

They referred to the Toronto consensus. Mr. Chairman, the Toronto consensus was known by everyone. There was some change in the Victoria formula. They knew what it was.

This was a new formula that originated from the paper of the Alberta government. We said, “Let us look into that. If that is going to be the avenue, then it is going to be the avenue..” We discussed that thoroughly and in good faith.

But I think there is some misconception about it. There never was a consensus.

The honourable Mr. Epp talks about Mr. Wells. I would like, if possible, to refer to his testimony on it, because he explained that we discussed it; that we tried to find what was good or bad about it; his conclusion was that in sum our discussion allowed the potential for consensus, but it was not achieved in fact. The explanation lies not in the ill will of any of the participants but in the fact, he said, relevant to the formula itself.

Of course—referring to the argument the former Minister was making on that there were a lot of defects. I was there! We tried to find a solution about opting out; compensation, what would we do? The Supreme Court? What do we do about the Senate? What do we do about the guarantee for Prince Edward Island in the Senate? What do you do about other provisions where you cannot opt out? There was no solution.

There was a great deal of argument about it, and we tried to find a solution.

At one time those who opposed it, like Ontario who did not like it, nevertheless said “If it is the only thing in the package that we have to do with, then we might take that step.”

And I was quite pleased to hear the Prime Minister of Canada say that if it was the only problem in the package, “Even if I do not like this formula, I might accept it.” But it was in the context of larger discussions.

But Mr. Hatfield and Mr. Wells spoke for themselves.

I knew about all the pitfalls that existed. But I think if you speak about an emerging consensus about it, it is better to take what we are proposing. If we are so close—and that is exactly why we are having unanimity for two years, so that we will give two years to the provinces and the federal government to agree; if at the end of two years those pitfalls are cured we might have it.

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But now, what you are proposing is to impose it on the provinces today, and they would be stuck with it.

Well, I, as one who has some preoccupation about it would say that, for example, we have entrenched all sorts of rights in the constitution; they might be taken away; you know, you proposed a formula which—the whole argument of Alberta, when they presented their argument to give them a right of veto. But with your formula of 80 per cent of the population in the majority of the provinces. Alberta might be against it, but the rest of the provinces can change some aspects of it that they do not want. So it would be against the trust.

For me, in what we are proposing, we are providing much greater flexibility, because there will be two years before we have any final disposition.

If after two years there is no agreement, there is the possibility if seven provinces agree, that there will be a referendum and the people of Canada will decide between either the Victoria formula or any other formula that we might propose, and the one that the seven provinces might propose.

So we are giving Canadians the right to look into that eventually.

[French]

But what surprises me the most here, and what is truly a great disappointment to me, is to see Senator Tremblay, Senator Asselin, and the other senators and members of Parliament who boast that they represent the provinces and refuse to concede that through the action they are taking now, for the first time, they will be giving the provinces the real power to make constitutional amendments.

If we end up accepting Victoria, then what we have today and which some consider exorbitant powers, that is our power to go before the British Parliament to have the Constitution amended…Once the Constitution has been brought back, the provinces will have a veto during two years, after which they will have either Victoria—and I see Senator Asselin nodding yes—which means a veto for the Province of Quebec; your formula does not provide a veto. Victoria protects the language rights enshrined in the Constitution; your formula does not protect them. Today, Quebec has 27 per cent of Canada’s population, but there is no guarantee that it will always have 27 per cent of the population.

For the past 113 years Quebec has had over 25 per cent of the population, but Canada’s orientation, population increases, and demography are changing rapidly. So a guarantee is provided, but language guarantees could be withdrawn by a majority of provinces, representing a certain percentage of the population, and Quebec could not do anything. Quebec, which even more than us, is supposed to be the special defender of francophone rights in Canada did not wish to support a proposal which we imposed and which guaranteed French language education rights in all provinces.

As far as I am concerned, there are other guarantees; the appointment of judges to the Supreme Court. Since French civil law is different from English common law, three Quebec judges are appointed; that is protected in the Constitution.

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That protection could be removed under the formula proposed by the Conservatives.

I could put forth many other arguments. What is most shocking is that under the formula proposed by the Conservatives, the discussions of this summer have been ignored. We have not heard the provinces’ opinion on this subject.

[English]

For example, last summer in the proposition there were some clauses that were calling for a decision without the consent of the Senate. This has disappeared in your formula, but what about the provinces that insisted on having it. There are other provisions there that have been added: the last one, Section 3 of the proposition has been completely added; it did not exist before.

The provinces insisted on having the unanimity of all the provinces in order to amend the amending formula.

That is no longer there in your proposition. It is a majority of the provinces having a certain population, but there is no longer any unanimity. So, to try to represent that as the agreement of the provinces is, you know, not very fair! After all, I was there. I knew we were far away from an agreement. But at no time did we ever accept—and I distinctly remember some members telling us it is the referendum—to the First Ministers. But my First Minister was not sure. But the one who had the virtue of being both, Mr. Hatfield, made it very clear.

So the document you are reading Mr. Epp, published by the Alberta government, they said there was an agreement. Yes, they say that, Alberta says that. Mr. Hatfield said exactly the contrary. I read to you the letter of Mr. Wells who said there was no agreement, by far. There was a question, I have seen some people saying, oh, very nice, opting out, but what about the compensation? I have not to say anything there because some people say that if you opt out you pay the consequences of opting out and others, oh, we are less interested. There was a lot of disagreement about it.

1610

So my position is a better one. I say let us go with unanimity for two years, let us have two conferences in the next two years to try and find an amending formula. After there will be no more bargaining about patriation. Let us look at what is the best solution, for two years. If we all agree, there will be no problem. If we disagree, we have the people to decide. I think that is fair and democratic.

Now, Mr. Epp, you are imposing something on the provinces and I find myself today in the happy position of protecting the rights of the provinces.

Mr. McGrath: What is wrong with that?

Mr. Chrétien: I like it very much. It is what I was doing all last week when I was refusing amendments on all sorts of problems that they advocate for motherland and wanted us to include in the Charter because I knew that it was strictly too

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many problems for the provinces, but this is tough; and it is not coming from the NDP it is coming from Mr. Epp and I would like you to reconsider that. I can go on and on. It is fantastic, the power of arguments that have been provided over lunch on that one, but I guess I have said enough to convince the members of the Committee that we should not accept it.

The Joint Chairman (Mr. Joyal): The honourable Jake Epp on a point of order.

Mr. Epp: The Minister has made his points and he has made them well. I just point out to him that his argument would be correct if he left out the British bill that I also circulated. If he puts that in conjunction with it, much of his argument is in fact after the fact, rather than what we are discussing now.

Mr. Chrétien: But if your British bill is like another one of those options that we had to face Saturday where you are in favour of a bill of rights and the day after you come and you say, but let the provinces accept it with unanimity, or more or less. We know now that Mr. Lyon, your Premier from your province, said that he will never accept a bill of rights. He told me that, right in June. He was willing to accept litigation in French and English, that he was willing to accept direct, never; so I do think if your new amendment is now we are provided with the solution but it is still conditional on the approval of all the provinces, it is just a charade. It is just an exercise in futility. So let us give them two years to find one and have unanimity in the meantime and if there is no solution in two years the one who shall decide in Canada, the people of Canada will decide.

The Joint Chairman (Mr. Joyal): Thank you, honourable Minister of Justice. I would like to invite honourable Senator Tremblay followed by the honourable Senator Austin.

[French]

Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

Later on I will discuss some criticisms of our proposed amendment made by Mr. Robinson and by the Minister.

I think that it is important at the outset that I make certain general remarks, since the amendment we are discussing takes on its real meaning in the context of our project as a whole.

What is this project as a whole? What does it consist of? Basically, it consists of the following elements: repatriation of what remains in London of the Canadian constitution, maintaining and respecting our federal regime, and following repatriation, making the necessary substantive changes to our constitution. Repatriating what remains in London of the Canadian constitution means three things: first, abrogating the Parliament of Westminster’s power to amend our constitution; secondly, transferring that power to Canada; and third, providing ourselves with an amending formula on which we agree.

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Repatriating while respecting and maintaining our federal regime means two things: that repatriation must be made according to a Canadian consensus, in other words, a federal consensus; secondly, that the amending formula or formulae necessary for repatriation also be made through a Canadian consensus, and I repeat, a federal consensus.

Making the necessary substantive changes after repatriation means that at the same time a mechanism must be set in place which can assure Canadians that following patriation, the necessary renewal of the Canadian federation will be undertaken as rapidly as possible. That is what was meant by our proposal to set up a permanent constitutional conference.

Basically, then, those are the elements of our repatriation project. Under the circumstances, a project of this type seems the only one which can be achieved in a truly constructive fashion, without entrenching ferments, elements of profound division, and irreparable fissures in the Canadian conscience and reality.

Given the project I have just briefly described, given the simplicity, clarity, and cleanliness of our project, the government’s project has caught all of us, each and everyone of us, Parliament and our Joint Committee, the legislatures and the provincial governments, the groups and organizations which provide the framework for the structure of Canadian society, that project has caught all of us in a sort of trap, a sort of ambush from which we can only escape by making choices which seem contradictory.

For instance, for those who insist on having a charter of rights, as we do, as we have stated categorically, the choice lies between such a charter and a negation for the time being of federalism through the project presented to us, since that charter would be unilaterally adopted by Canada’s Parliament regardless of its implications on the two levels of government, and then sent on to the British Parliament for entrenchment.

For those who wish to maintain the federal regime, in this patriation exercise, it is necessary to run the risk of being accused of being against patriation itself or against the charter of rights. For those who invoke Canadian sovereignty in opposing the principle that we should ask London to grant us our own charter of rights or modify the substance of our federal regime, the colonialist arguments turned around, and it is plain that Westminster must automatically enshrine any request made by the Canadian Parliament, regardless of its nature or its implications on the federal regime.

Mr. Chairman, the few examples I have just mentioned lead me to suggest that we must recognize the fact that the government’s project is a masterpiece of its type, a masterpiece of cleverness and duplicity, but not a constructive piece of work. That project will not build up the country; it enshrines for the present and future all the forces necessary for its upheaval and disintegration.

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Given the government’s project, then, we as members of the Committee are no longer in a situation where, if I may use the analogy, we are potters throwing a vase with total freedom to give it the best possible shape. Instead, we are like the housewife who must pick up the pieces of a broken vase and try to glue them together as best she can. That is what we on our side have tried to do, given the procedure allowed and the way in which things stand.

Through our amendments, we are trying to glue together the pieces of a broken vase, the broken vase of repatriation on which everyone agrees and which everyone desires. We did this first by suggesting the proposed charter be circulated within our federating institutions, sent not to London but to the provinces. We were not questioning the principle of a charter of rights, nor questioning the quality of the charter which we had in fact improved over the original charter; we just wanted to return to the federation circuit a substantive amendment touching both levels of government.

We started doing that at the point where the procedure allowed us to do so.

Our proposal now on the table is a continued effort to glue back one of the pieces. This is what we are attempting by suggesting a general amending formula which all participants in the September conference, at the very least, expressed a positive attitude, and on which a consensus would have been reached if the Prime Minister of Canada had not unilaterally declared that the conference was ending in a deadlock, and if he had not refused on the spot the invitation put forth by the spokesman of the premiers to continue and to hold another conference on the issue.

Earlier, the minister discussed the nuances to the degree of consensus which did or did not exist on the Vancouver formula.

From every indication we have had, I think that is the least we can say, and I will repeat this once again, is that we were at the eve of a consensus. Perhaps a consensus was not reached because at that time each one was attacking the problem through package deals.

I remember clearly hearing the Prime Minister of Canada say: Even if I am somewhat reticent, I will consider the Vancouver formula, but give me my charter as well.

Other premiers took the same approach. I would call this phase of the constitutional debate the package phase. In general, our proposal asks each of the participants to withdraw his package and to stick to the basic requirements for repatriation.

If they had stuck to this basic issue, I think that they were on the eve of consensus.

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So we tried to glue the pieces back together by recirculating the charter, and we are trying to glue the pieces back together with our proposed amending formula; we will continue to do the same through our proposal on the amendments to be made to the so-called British Act, the second part of the total government proposition.

On that issue, Mr. Minister, I would like to make a comment. A few minutes ago you said that we were imposing Vancouver on the provinces and that you felt very comfortable, that you were most pleased for once, to be the defender of the provinces!

Mr. Chrétien: More than once, all of last week.

Senator Tremblay: In any case, that is more or less what you said; you said that you were in some sort of euphoria to find yourself in the unusual position of defender of the provinces. I think it must be said right away that you are only the defender of the provinces which are not attached by our proposal. It is very easy to defend someone who is not even under attack. In fact, if you look at our amendments to the British Act, to the second part, you will see that our proposal is the opposite of an attack.

These are measures that we can discuss later, we propose to put the entire amending formula, even the Vancouver formula, through the required federal consensus.

We are not imposing anything; we are just recycling once again, the decision on the amending formula to the federal consensus I have mentioned.

In passing, I would like to add that your project, Mr. Minister, is imposing an amending formula on the provinces via the Parliament of London; a formula included in Clause 42. This formula is not subject to the interim period allowing the submission of provincial proposal which could compete with a federal proposal in the first referendum provided for in the interim period. You took great care to exclude Clause 42 from this first referendum to permanently entrench a unilateral referendum by Parliament to amend any aspect of the amending formula.

Mr. Minister, that is even more serious, since that is precisely where the federal regime is thrown into imbalance by the permanent entrenchment of the supremacy through referendum of one of the two levels of government.

We are not imposing the Vancouver formula, but you are imposing Clause 42. A comparison is obvious.

I would now like to come to another specific aspect of our proposal relating to Quebec on which both you and Mr. Robinson expressed surprise; the fact that under our proposal to amend the amending formula, the agreement of at least eight provinces representing 80 per cent of the population would be necessary. Your objection to that, like Mr. Robinson’s objection, or at least the surprise you have shown that an authentic Quebecker—1 consider myself an authentic Quebecker—could propose such a thing, is that that formula

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would forever eliminate the veto which Quebec would be granted through the Victoria formula.

First, Quebec would keep its veto until its population would drop to less than 20 per cent of the total population of the provinces; according to statistical trends, that would mean about 40 years.

But that is not the most important point. The most important point is the following. In the event, that statistically Quebec would come to lose the veto I have mentioned, what situation would correspond to the problem of that lack of veto?

By definition, it would be a situation in which all the members of the Canadian club, if I may use those terms, all of the other provinces and the federal government, would have decided to join arms against Quebec which would be left alone. My definition, and I hope you are listening, Mr. Minister, because that is the essential point for a Quebecker.

[English]

The Joint Chairman (Mr. Joyal): May I invite the honourable Minister of Justice to listen to what the honourable Senator Tremblay is saying. I think he is addressing himself to one of the very arguments that was put to…

[French]

Senator Tremblay: I was also speaking to Mr. Robinson, but the authority represented by the Minister does seem essential to me.

Mr. Chrétien: Continue the question.

Senator Tremblay: In order to make a proper analysis, I was describing what the loss of Quebec’s veto would represent, according to statistical tendencies, according to which this could occur within about 40 years, perhaps more. In any case, it is fairly far off.

So let analyse what the lack of veto would mean for Quebec. By definition, if Quebec did not have a veto it would be alone against a compact of the nine provinces in the federal government, since there would be no problem without a compact of that nature. By association with one or two other provinces, Quebec would have the veto.

The hypothesis we are analysing and on which the argument is based is one in which the federal government and all of the provinces would be unanimous against Quebec. Would that be serious if the issue at hand, if the amendment under consideration was kind of, for instance, the decision to transfer to the federal government the provincial rights to grant interprovincial trucking licences?

It seems very unlikely to me that an issue of this type would lead to such a dramatic situation. By definition, then, only in the case of a serious problem would be the veto be very important. What type of problem could lead to unanimity of the part of all of Canada except Quebec? This could only occur in the context of an issue both fundamental and leading to a compact of that type; it could only occur on immediate issue of such a type that the rest of Canada would be homoge-

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nuous while Quebec would be fundamentally outside of that homogeneity.

In that case, Mr. Minister…

[English]

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Senator Lucien: Mr. Chairman, on a point of order?

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

Senator Lucier: Mr. Chairman, I am not clear, are we supposedly on three minute rounds again on amendments?

The Joint Chairman (Mr. Joyal): No, I am sorry, honourable Senator Lucier, but I thought that it was well understood when the Chair invited honourable Jake Epp to move the proposed amendment, that that amendment deals with one of the basic decisions that this Committee has to take and this decision is in relation to the amending formula and the Chair is not at all in the position to invite the honourable members to restrict themselves to a three minute intervention on that very issue which is at the core of our mandate and at this point the Chair is in the hands of the Committee and wants to invite the honourable members to speak as they want to, taking into consideration that there is a long list of speakers and the Chair has already given the names of those who wanted to speak this afternoon.

Senator Lucier: Mr. Chairman, I understand, then, that there really is no time limit, just whatever they want to impose on themselves?

The Joint Chairman (Mr. Joyal): No, but the Chair will quote you that sentence of the Latin poet Horace who said that moderation is a good behaviour in everything that you use in life and I think in the present debate all honourable members will understand that it is a virtue that they should probably have in mind when they address themselves to such an amendment.

Senator Lucier: Thank you, Mr. Chairman.

[French]

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

Senator Tremblay: Thank you, Mr. Chairman.

I will come back to what I was saying about the hypothetical situation where the lack of a veto would be of true importance to Quebec. This would occur in a situation where the rest of Canada would join arms against Quebec on a major issue which would have to involve a statement of homogeneity on the part of the rest of Canada against a differing Quebec.

Mr. Chairman, if we want to create a scare we can imagine that situation, my answer is that such a situation goes against the assumption on which our federation is based, the assumption which is at the origin of the behaviour required by a federation. On the one hand, I do not think that the rest of Canada would join arms on major issues relating to the Quebec identity; if by chance that did happen, the rest of Canada would have, by that very fact, separated from Quebec

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by isolating it. In that case, Mr. Chairman, to continue the analogy, Quebec would be justified in reconsidering its membership in the club; the justification for that reconsideration would come, not from Quebec, but from the compact which your argument presupposes.

This is my answer to your bogey-man image of a Quebec without an eternal veto. It is necessary to analyze potential situations to see if a problem does exist.

I think I have analyzed the situation in such a way as to convince those who might be frightened—I am thinking of my fellow Quebeckers who might be frightened at the thought of a potential loss of their veto—I hope that this will have convinced them that that loss is not a true one; it is in fact the basic position of the game of federation, when the hypothesis of a true loss of veto creating a situation of masked separatism—and I do not think that would happen through the behavious of the other members of the club who would not join together in this way on basic issues, at least, that is my assumption for the future of our federation. If that assumption is not made, basic issues are raised.

Thank you, Mr. Chairman.

Mr. Chrétien: I would just like to add a few words on the granting of Quebec’s request, a very traditional request according to which, as far as the constitution is concerned, Quebec should have a veto which we are prepared to grant it; but if Quebec does not want a veto, we can accept that.

Earlier, the honourable Senator, mentioned a broken vase; perhaps I could take this opportunity to quote Sully Prud’homme who said:

That vase in which the vervein
Is dying was cracked by
The tap of a fan.
The tap must barely have touched it,
Since it did not make any sound.
But the wound
Biting daily into the crystal,
Invisibly but inevitably.
Worked its way around.

Since 1867, it has always been in such circumstances that Quebec’s political power was based on participation proportionate to its population in Canada’s political equation.

Even in enshrining language and other rights in the constitution, when you withdraw Quebec’s veto, especially in areas like the two official languages of Canada, you are running the risk that the rest of Canada, in 1971, did not feel any obligation to provide a comfortable place for French speakers in Canada.

Senator Tremblay: One last comment. You made literary comparisons, mentioning a fan…

Mr. Chrétien: That is the tap of the fan.

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Senator Tremblay: From Sully Prud’homme’s poem. The federal government’s unilateral show of strength is not a tap of a fan but rather a bludgeon stroke.

As for the future of the vase, things are not the same.

Mr. Chrétien: I am more comfortable with a formula providing better guarantees for Quebec than those you propose.

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

[English]

Honourable Senator Austin followed by the honourable Senator Roblin.

Senator Austin: Thank you, Mr. Chairman.

I wanted to make some comments about the arguments that we have heard with respect to the Conservative amendment which is before us dealing with Clause 41.

It is not going to be my pretense, Mr. Chairman, to cover all of the points that have been argued, but a few points only that I think are particularly important to my way of looking at Clause 41.

Again, by complimenting Mr. Robinson on his analysis this morning, I do not compliment him on his references and I think he knows that, but I thought his analysis of the impact of the Conservative amendment on the rights and of course the political expectations of people who are affected by the Charter was a fine one.

With respect to the agreement of the provinces dealing with the so-called Vancouver formula, coming from Vancouver I say in parathesis that I regret it is called the Vancouver formula, I would not mind calling it the Edmonton formula but somehow it did not pick up that label although it was sponsored by the Province of Alberta originally.

However, I would like to refer to the letter of January 5, 1980 by the honourable Thomas L. Wells to William Yurko, which was first referred to by Mr. Epp this morning, and to put on the record of the Committee Mr. Wells’ opinion with respect to the Vancouver formula.

He said, and I quote:

While Ministers and First Ministers were willing to give serious consideration to the Vancouver formula in spite of its potential checkerboard effect, in the hope of achieving consensus, they could not come up with solutions to the two serious technical problems the formula contains. The problem of applicability in particular reopens all the arguments with respect to the general formula. If opting out could not be applied then a 50 per cent population required was considered too flexible, unanimity was too rigid, 85 per cent left out the Atlantic provinces, a regional formula was regarded as treating some provinces unequally. In sum, our discussions held out the potential for consensus but it was not achieved in fact.

[Page 62]

And I want to say, breaking the quotation for a moment, that that is what Premier Hatfield also told us. Going back to the quotation Mr. Wells went on:

The explanation lies not in the ill will of any of the participants but in defects inherent in the formula itself. Let me note in conclusion that while Ontario supports the amending formula contained in the federal resolution.

And that is, I say in parathesis, the Victoria formula:

We regard the two year delay before this formula comes into effect as an opportunity to overcome the problems inherent in Vancouver or to consider a wholly new approach. Our willingness in this regard is consistent with our position over the past nine and one half years. The ball is in the court of those who object to the current formula.

That is those who object to the Victoria formula:

We are ready to play our part in the game.

With respect to checkerboarding, which my colleague Coline Campbell addressed herself to yesterday, and I thought extremely well, I would like to draw to the attention of members of the Committee the evidence of one of the expert witnesses for the Progressive Conservative Party, Professor Peter Russell of the University of Toronto, who in giving his evidence on January 8, 1981, the evidence appears in issue number 34 on page 139, answered a question by Mr. Nystrom. Mr. Nystrom said to him:

I wonder why you reject the Vancouver consensus, is it because it Balkanizes the country too much?

Professor Russell, who I repeat was the Conservative expert, said:

Yes. As I understand it, and please correct me, Mr. Nystrom, if I misunderstand it, I do not have it in front of me this evening, it would give any province who disagreed with the consensus in Canada, that is with two thirds of the other provinces, the majority of the Canadian people, give any province the right to opt out of an amendment. I think that could lead to a great deal of diversity in the constitutional rights that citizens enjoy in Canada and the constitutional arrangements, too much for me. I think constitutional rights should be shared in a fairly uniform way by Canadians from coast to coast and I do not like the idea of a single province in a sense being able to opt out so that is why I could not accept the Vancouver formula.

I think Professor Russell puts the concern and the basic and unacceptable weakness of the Vancouver formula, so-called, in its checkerboarding effect, and all of the hopes of those who try to make that impossible creature fly will be unsuccessful without a degree of acquiescence by the provinces, which we have not seen in Canada for a long time.

Now, Mr. Chairman, with respect to the Victoria formula again, as the members of the Progressive Conservative Party

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on this Committee have referred to the Kershaw Report, and without my wanting to adopt it in any other way I think it is of interest to note, and only to note, paragraph 114 where these British Parliamentarians have adopted an opinion which supports the Victoria formula, and I quote from their report, paragraph 114:

We think that it would not be inappropriate for the U.K. Parliament to expect that a request for patriation by an enactment significantly affecting the federal structure of Canada should be conveyed to it with at least that degree of provincial concurrence which would be required for a post patriation amendment affecting the federal structure in a similar way. For example, a federal request that had the support of the two largest provinces and of provinces containing 50 per cent of the western and 50 per cent of the Atlantic populations would be one that could be said to correspond to the wishes of the Canadian people on a whole. This criterion has roots in the historic structure of Canadian federalism as reflected in the Divisions of Canada for the purposes of the provincial representation in the Senate of Canada; and it broadly accords both with the last, if not the only, clear consensus of Canadian federal and provincial governments at Victoria in 1971, and with the present proposals of the Canadian government in relation to post patriation amendment.

And as I say, I am not adopting that report by reference in any way but if it is in order for Conservative members to plead points where the report accepts their current arguments, I suppose it is not out of order for me to point out a place where it does not support the present Conservative arguments.

Mr. Chairman, the point that I really want to make relates to the comments which Mr. Epp addressed to this Committee with respect to feelings in Western Canada to quote his phrase, and he argues that the Victoria formula does not take into account todays’ feelings about an amending formula in western Canada.

Mr. Chairman, western Canadians have been the subject of a great deal of political rhetoric about the impact of the amending formula, the Victoria formula on Western Canada. I do not think that in Western Canada it has well been understood that any two of the four western provinces composing a majority of at least 50 per cent of the population of the four western provinces can bring to a halt any proposed amendment to the Canadian constitution. I do not think it has been well understood.

There is some feeling in Western Canada that somehow Ontario and Quebec can show a constitutional amendment down the throat of Western Canada. This is not the case.

Two western Canadian provinces, comprising 50 per cent of the population of Western Canada, can indeed bring to an end any proposed amendment. Now, this does not deal, of course, with the question of the referendum and I do not deal with

[Page 64]

that question under this clause because it is not directly relevant to this clause.

What I want to explain and what I hope will be understood in Western Canada, is that it is only through the Victoria formula that in my opinion western Canadians will in result truly receive their due in terns of representation within the Canadian federal process. By that I mean that, along with Senator Roblin and others, and I do not want to indicate that he agrees with me in extension of what I am saying, there are a number of Senators, including Senator Roblin and others, who believe that it is the Senate of Canada that must give representation to Western Canadians; the dilemma in Canada for Western Canada, and this has been well heard, is that the population representation by which the House of Commons is created, the democratic process, does not take into account and will not in the lifetimes of anyone in this room, I would predict, the growing economic strength of western Canada but its lack of comparable population clout in the political process.

If Canada and Western Canada are to grow together in a mature political reality, then in my view the Senate must be reconstituted, reconstituted in a way that allows the interests of Western Canada and Atlantic Canada to play a check and balance on the population clout of Central Canada.

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I believe that in my party at least there is a willingness to examine that particular necessity in stage two of constitutional reform.

Senator Roblin spoke about an elected Senate. I have taken that position since I became a member of the Senate, and I have sought consideration of proportional election in the Senate from lists put forward by the national party leaders.

I do not wish to take the Committee into that particular argument at this time. But I would like to indicate that the Senate is going to have to be the major thrust of the process which reduces and removes the present feelings of alienation and dissatisfaction in western Canada.

How can that be done? Well, Mr. Chairman and members of this Committee, I can assure you it will not be done if we were to depend upon unanimity of the western premiers, because they have a vested interest in not assisting the federal process. They have a vested interest in the complaints and not in the solution.

It is only if we get a formula—and I plead the Victoria formula—that we can then persuade a sufficient number of Western Canadians—and I have said it would require the approval of two western provinces with the majority of the population in Western Canada—to bring about this reform of the federal process so that Western Canada can be represented in the federal process.

Mr. Chairman, I have spoken a little more aggressively than I had intended. I hope I have made myself clear as to my

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conviction as to what is in the interests of Western Canada in terms of the Victoria formula. The Vancouver formula will not do that, and the federal process will be harmed grievously as a result.

Thank you, Mr. Chairman.

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

I would like to invite the honourable Senator Roblin, followed by Mr. Nystrom.

Senator Roblin: Mr. Chairman, this discussion of the amending formula is, I would submit, the most critical subject that we have to consider in the whole of this constitutional reform.

We do not have any problem with patriation. But we know that, to have a satisfactory patriation, we have to have a satisfactory amending formula when the constitution gets here.

I put it to this Committee that it is the fundamental position of my party—certainly one to which I subscribe wholeheartedly—that the essence of an amending formula is consensus; the essence of an amending formula is that it must be a product of the joint decision of the two levels of government in this country.

That is the one principle which we must not lose sight of in what we are doing today.

Any measure that we propose which ignores that central and fundamental feature of constitution making in Canada this day runs the risk of grave dissatisfaction in various parts of this country.

Now, the proposal we are making has to be looked at, not as it stands on the amendment list you have before you at the moment, Mr. Chairman; but it has to be considered in conjunction with other amendments which we are going to propose to Clause I of what is called, if you follow the terminology, the British Bill.

This proposal in Clause I of the British bill will see to it that the amending formula is referred to the provinces of Canada for their consideration and judgment.

I say to this Committee that I wish the government had the same conviction about their amending formula, that they would undertake to make sure that it was referred back to the provinces of Canada before it became engraved as part of the constitution of this country.

That is the essential essence of the Conservative position in this debate today, that we have an amending formula and it should be endorsed by the provinces of Canada—certainly in a consensus form, if not unanimously, before it becomes part of the constitution of our country.

People say—and some around here say—that we do not like the Vancouver formula. We say very well; but we are willing to take that to the provinces.

Are you willing to take your formula to the provinces? I do not think that the answer will be, “Yes, we are willing to take our formula to the provinces.” We certainly are!

Le me say a few things about the merits of the Vancouver formula viewed in isolation.

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First of all, let us accept for one moment the argument that a formula based on Vancouver was not fully developed at the last meeting of the first ministers of this country; let us accept the point that it requires to be re-examined and improved, so that it will be more perfect than it is at the present time.

But, having said that, let us trace its pedigree, because it has a pedigree and it is a pretty good one!

We have heard from the Minister of Justice ad nauseam that the premiers would not go along with this particular Vancouver formula. Well, he may be right.

But looking at the “for Ministers’ eyes only’’ document, prepared by the federal government and which was intended to be a resume of the position that they found themselves in in September of this year, they made reference to the amending formula, and this is what they said:

All the provinces…

and I repeat:

All the provinces agreed in principle that they would be willing to accept the Alberta proposal for an amending formula…

That is the Vancouver formula.

…subject to examination of the legal draft. The Alberta proposal provides for general amendments to be made with the assent of Parliament and two thirds of the provinces with at least 50 per cent of the population. However, if an amendment is so approved by seven provinces…

is one affecting four different functions which we have discussed, then it need not apply to the province that dissents.

Now after stating that this is a formula which had general consent in principle, while reserving the fact that it was not a completely developed formula—which I agree with—the statement was nevertheless made that it presented a basis for discussion.

The statement which was prepared in this document for Ministers’ eyes only—which is a leaked document and which got into public circulation—goes on to give the advantages from the federal point of view and the disadvantages from the federal point of view. We have heard some of them and anyone who cares to look it up for themselves would see it at page 28 of the document. I do not propose to take up the time of the Committee with it.

As we got into further discussions of this interesting initiative called the Vancouver formula, we found it was not universally spurred. In fact, when the Premier of Saskatchewan was here before us, he had some very interesting things to say about it.

Now, I have to admit that these days everybody is quoting holy writ; everybody is quoting some expert or other; and the devil can quote scripture for his purpose, and I notice that some members of this Committee are not above adopting that approach to it, and I do not think I am entirely clear of the charge either.

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But I would say this about Premier Blakeney, because he said this about the amending formula we are looking at now. I quote:

The proposed amending formula is the most unacceptable part of the federal resolution, the part that does the most serious violence to the basic principles of federalism. Saskatchewan cannot endorse that resolution unless major changes are made in the amending formula. The amending formula proposed in the resolution is so weighted in favour of the central government, so weighted against the interests of the provinces

and this is a very serious man speaking:

that it threatens to destroy the balance which is so crucial to the maintenance of Canada as we know it.

Now he entered into a lengthy discussion, and I do not wish to be guilty, if I can possibly avoid it, of misrepresenting his position here; because he definitely stated what his preferences were, and he was not only talking about the Vancouver formula, but about the referendum, and he had words to say about that.

But sticking to Vancouver, he said this about it:

We adhere to the Vancouver formula and we could live with the Vancouver formula if you people decide upon it. We adhere to it again because we are seeking agreement. We have earlier expressed our preference for a legislative formula based upon a variation of Victoria Charter One, and I have outlined it.

I hope, then, I have given the gist correctly of Premier Blakeney’s position, that is that Vancouver is not out of bounds.

But we know perfectly well that in so far as at least the other three provinces in Western Canada are concerned, Victoria is out of bounds: British Columbia would not take it; Alberta would not take it; Manitoba will not take it; Saskatchewan would like it, but they would take the Vancouver one if they have to.

So it indicates to me that there is substantial ground for thinking that while the Vancouver formula is not perfect, because none of these formulas as it turns out are going to solve all our problems. But it represents a reasonable basis for continued discussions.

Our proposal is that we should seize that opportunity and refer the matter to the provinces and obtain their views on it. If we find out that they like the Victoria formula better, then at least we have asked them.

But I say to the government that they do not propose to do that! I insist that consensus is of the essence in defining a constitutional formula, and you cannot achieve that consensus without referring to the provinces on such an important factor in the whole consideration.

I do not propose to deal too much with what Mr. Wells had to say, because Senator Austin quoted him on one particular; but he also knows very well that Mr. Wells also said something else about the checkerboard effect.

Let me read it to make sure that we have his view:

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Since opting out is the unique feature of this formula, the potential checkerboard effect over a time had to be considered. Several provinces were concerned about the long term implications of such an approach.

However, I think it is fair to say that in the end, the ministers decided with greater or lesser enthusiasm that the risk involved was an acceptable one on the grounds that the potential difficulty itself would serve as an incentive to ensure broad support for any constitutional measure.

Remember when we are talking about checkerboarding, the provinces are not going to have it all their own way. The federal government has to agree to it, too, before there is any possibility of that.

Speaking from experience in constitutional amendment as they have developed in the federal provincial committees over the years, I know perfectly well—and members of this Committee know very well—that the checkerboard principle is no new concept in the building of Canadian federalism.

It is no new idea that provinces should be able to differ on important matters—indeed vital matters in respect of the development of our country.

We also know in connection with the Canada pension Plan, in connection with the Medicare, the health arrangements and a number of others that escape my mind at the present time, checkerboarding, the option principle, the right to be in or out, was recognized as a provincial right and the country did not fall apart, and the programs all turned out to be generally acceptable over a time and they are now giving good service to the people of this country today.

So I say that checkerboarding is a risk we have to run, but it seems to me that it is an acceptable risk. I agree with what Mr. Wells has had to say in that respect.

Now, we had a very interesting argument from Mr. Robinson to which I would like to refer and in which he made the allegation that, if we had the Vancouver Formula as opposed to the Victoria one, that none of the advantages which might be expected to accrue to native groups, to women and other minorities—I will not say minorities with respect to women, because there are more ladies than men in this country; and a darn good thing too! The question of dealing with those situations was raised by him.

He implied that the Vancouver formula made it harder to get that kind of thing than the Victoria one.

Yet, the Victoria one is the more rigid of the two—by far the more rigid. It would be harder to get things past Victoria than it ever would be past Vancouver.

So good ideas which may not come to their time in one section of the country, can still be proceeded with and not detained for ever in limbo, as they should be under Victoria, if you had the Vancouver formula to work with. It is a more flexible formula, would be more useful in developing new

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approaches to constitutional problems than the Victoria formula as presented by the government today.

I point out, Mr. Robinson, and anyone else who wishes to take note of the fact, that under Victoria less than three per cent of the population can block. That is an interesting idea. Less than three per cent of the population can block! That is the effect of the Victoria formula in the maritimes.

I say to Mr. Austin that if he thinks the west are going to be soothed or be happy with the formula as proposed for them, namely two western provinces with 50 per cent of the population, then I think he is dreaming; because he is going to find that the western provinces will not regard that as a protection of some of the issues and some of the rights that they esteem very highly indeed.

They will say, as a matter of fact, that they do not have nearly the weight in the constitution that the maritimes have. The Province of British Columbia, for1 example, Senator Austin, has more people than all the maritimes put together; if the maritimes have a veto—and British Columbia certainly has not. If you do not like the Vancouver formula—and I will admit there are drawbacks to it—the Victoria formula is going to cause you trouble too.

If you think it is going to be any consolation, to the people of British Columbia to hear how they weigh in the constitutional scales as respects their possibility of protecting what they think are their rights, I can only think it would not turn out to be an advantageous move or a nation building move at all.

I want to come back to the principle part I want to leave before this Committee.

It is all very well for us to argue—and I accept as an expression of sincere intention, good faith and intellectual probity, the contributions of all the men and women I have heard around this table. I would be the last to say that is not so.

But I would say to them that we are not as smart as we think we are. I would say to them we have no moral, constitutional or legal right to be imposing on this nation an amending formula which has not received the approbation of the provinces. No matter how you do it; no matter about your two years or anything else; I do not think we have the right to do it.

I think if we want to compete in the realm of ideas and constitutional construction of this country, let us compete in the arena where the decisions should be made in so far as provincial consensus and concurrence are concerned.

We ought to defer our constitutional amending proposals to the provinces. Our amendments do that. The government’s proposal does not do that in the same way as ours does.

Let us take it directly to them; then all the arguments about the Vancouver formula and Victoria will disappear into smoke, into thin air; because we will then find out what the area of consensus and possibility is.

I say to this Committee that we could consider the Conservative proposal as being a constructive effort to get around

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the question of consensus; to get around the unilateral objections to constitutional amending formula, and to bring the problem home to the two levels of government concerned to the people who ought to decide it.

Now, if we limit our reference to the provinces in the instance to the question of an amending formula and divorce it from all the other matters which are of concern in our constitution building process here today, the odds are quite good, I would suggest, that we will find a constructive answer will be available.

I think it was Mark Twain who said that the prospect of being hung in the morning concentrates the mind in a remarkable fashion.

It seems to me if we can present this one issue to the provinces of this country, we can challenge their patriotism, their good judgment, their skill and ability, as leaders of this country; I am convinced, Mr. Chairman, we will not be disappointed.

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

Mr. Nystrom, followed by Miss Campbell.

Mr. Nystrom.

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

It is an honour to follow a former premier, Senator Duff Roblin after his eloquent to the Committee.

I want, first of all, to say I will not be very long. I have spoken on this issue before. I have taken a position of opposing the Vancouver consensus, as I believe it is basically the checkerboard formula in this country.

I also believe if you look at the testimony of the premiers who came before us, one thing more than anything else stood out about that formula, and it is that it was not agreement amongst the provinces but a rough consensus amongst the provinces.

What the premiers said to us—and what I have found out from any research I have done—was that since the meeting in Vancouver—and it is called the Vancouver consensus, by the way, because the meetings took place in Vancouver, and it was the Alberta government proposing it; sometime after that they went down to Toronto for the fourth in a four week series of minister’s in a continuing committee on the constitution. By the time they got to Toronto there was an evolvement away from the Vancouver consensus. The premiers were starting to move away from it; they were evolving away from it.

If those negotiations had continued—and my preference, of course, would have been to see a longer series of negotiations, rather than moving into what we are doing now at this stage—I had the impression that agreement reached by the premiers would have been considerably different than the Vancouver consensus.

Senator Roblin, for example, referred to the Premier of Saskatchewan. The Premier of Saskatchewan was represented very accurately, I think, by Senator Roblin. He basically said

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that he could live with the Vancouver consensus. He certainly intimated that he did not like it. It was not his preference.

But he said that he could live with the Victoria consensus of 10 years ago, but again that was not really his preference. If my memory serves me correctly, without looking back through the files, he offered another option, which was a bit of a deviation of Toronto consensus where I think seven or eight provinces would have to agree, representing some 80 per cent of the Canadian population.

So there was an evolution away, in my opinion, from the Vancouver consensus, and away from it because of the concern about the checkerboard effect it would create on our country.

Now Senator Roblin has also said it is not right to impose without the approval of the provinces an amending formula; and, of course, he is right.

But I think the Conservative amendment to impose the Vancouver consensus is something we are imposing without the approval as well of the provinces, and one can make the argument that the closest we have ever come was the Victoria formula.

Now, that was quite a few years ago and for a while everybody agreed; and eventually the Quebec government backed off. But I would like to remind you that the Quebec government back out not so much because of the amending formula, but because of other items, social issues and policies and so on, that they basically thought the formula was all right.

One of the people who convinces Premier Bourassa to back off was a very influential editor of Le Devoir, Claude Ryan. He started a very effective campaign which convinced Premier Bourassa to back off. I say, Mr. Chairman, even though I have some problems with Victoria, nevertheless I prefer the Victoria formula to the Vancouver consensus.

I guess we are always going to have problems. It is an area in respect of which there is no magical solution. It is a very difficult problem and I have not seen any formula yet proposed by anyone which could not be criticized for one reason or the other.

I referred to the checkerboard. I want to remind you of the Conservative motion here, which is the Vancouver consensus; that any provincial legislature—you need two thirds of the provinces which have 50 per cent of the population; but of the provinces which are not in the two thirds group, legislatures can decline to authorize the amendment; in other words, they can opt out—they can opt out of anything which concerns the powers of the provinces or any of the jurisdiction of the particular province.

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I think, Mr. Chairman, that does present a lot of dangers in terms of checkerboarding, and my colleague this morning mentioned a number of them. You can go through the Charter of Rights and here I do not make the argument whether it

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should be done in this way or some other way but if we have a charter of rights and if we had it under the Vancouver consensus you can look from Clause 1 on to the end of the Charter of Rights, Clause 29 or 30 where it terminates and I think that you will find only about five articles that do not affect the powers of the provinces, five or six articles, federal bilingualism is primarily the only group that does not. All the others of course affect the powers of the provinces.

You could have a lot of opting out on a lot of these things and I think that would be very, very unfortunate.

Senator Roblin says the Victoria formula is more rigid and in a way of course he is right, it is more rigid, where you could have some very small provinces in the Atlantic region exercising a veto, but I want to say, Mr. Chairman, if the case for a constitutional argument is a good one and if the rest of the country is persuaded, I think the chance of persuading them is also pretty good; and once you have those six provinces persuaded to go through Victoria then if there is a constitutional amendment passed it is going to be an amendment that is applicable right across the country, in uniform right across the country. I think, Mr. Chairman, that is a good thing.

The other point I want to make, there was an amendment that surprised me two weeks ago when it was referred to by Senator Tremblay, and that is the whole question of Quebec. What Senator Tremblay said that night was that basically there was a possibility if we accept this amendment that in a generation or two Quebec could be a province like the others. This has been a very sensitive point in Quebec where Quebeckers believe that they should have one of two things in the amending formula, either they should have a veto on all amendments, which is what the Minister’s proposition give them, the Victoria Charter, gives them a veto on any constitutional amendment that applies across the country; or if Quebec cannot have that then they want considerable opting out on things that would protect their cultural distinctiveness, their collectivity as Québécois; their collectivity as French Canadians and hence perhaps their premier’s interest in the Vancouver consensus of giving them that protection.

But if you look at the Conservative amendment it says we can change the amending formula itself and to change the amending formula itself all we need is the resolution of the Senate and the House of Commons and a resolution from eight or more of the provinces representing 80 per cent of the Canadian population. Now Quebec represents 27 per cent or 28 per cent of Canada but there is a chance in a generation or two that Quebec could be down to 19 per cent of this country, or under 20 per cent; and then, Mr. Chairman, you could amend the amending formula without the consent of Quebec because you would have eight provinces, without Quebec; you would have 80 per cent of the country’s population, without Quebec; and you could conceivably have an amending formula that would not protect that cultural and linguistic distinctiveness and uniqueness of the Province of Quebec and would not protect Quebec as a distinct collectivity.

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I want to say to you that if there is any fear, in my mind, that Québécois have, that some day the powers that they now have, the jurisdiction that they now have, the rights that they now have to protect for time immemorial, forever, that distinctiveness and that uniqueness as a small little island of six million people in a continent of over 200 million people, if there is any chance of that disappearing then Quebeckers become very, very insecure, very insecure; and therefore I am very surprised that Senator Tremblay would even raise that possibility in the minds of Québécois.

Mr. Chairman, that is the fourth of the four reasons why with respect I will not be supporting the Conservative amendment to revert back to the Vancouver consensus with the other twist about amending the amending procedure which could be a problem for the Province of Quebec. Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom. I would like to invite Miss Campbell, followed by the honourable John Fraser. Miss Campbell.

Miss Campbell: Thank you, Mr. Chairman. I have a question for Senator Tremblay on the proposed formula, if he does not mind.

I wonder, under the Vancouver formula, if you can envisage at any time that the provinces would not opt out. You mentioned four areas in which provinces can opt out in your amendment and I just wonder if there are any other areas where they would not be able to opt out and if you would like to state where they are, or give an example.

[French]

Senator Tremblay: May I ask a precise question?

The Joint Chairman (Mr. Joyal): Yes, but be brief, Senator Tremblay.

Senator Tremblay: This is one of the areas where there is some work still to be done about the Vancouver formula and our proposal concerning the British bill will precisely allow this work to be proceeded with.

You asked me to give you an example. Let us take the case of a federal institution like the creation of a permanent constitutional conference such as the one we have proposed. It is difficult to conceive that one of the provinces would be left out of the conference.

Therefore, in order to complete the work done about the Vancouver formula, some precisions are needed.

Miss Campbell: Thank you, Senator Tremblay.

This power now exists at the federal level. We can do whatever we like at the federal level in adopting bills which will have no effect on the provinces and, therefore, we do not need the Vancouver formula; we do not even need an amending formula.

[English]

To return to my time on this and why I am opposed to this particular Vancouver formula, I have sat in here and listened and feel very strongly that we are again today, as we were on

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Saturday, debating the very basis of the Conservative position in their opposition to the government’s proposal.

Interestingly enough, last week at this time we were debating another right that a lot of us around here felt was a right that should go into the charter of rights, which was property. At the time it was a Conservative amendment for property, that it go into a charter of rights that would affect all of Canada. It was voted down.

Senator Yuzyk: How come you come back to a question that has been voted down?

Miss Campbell: You will have your time, Senator. It was voted down, and there is no shame in saying that, because of the effect that it had on the provinces and yet subclause (2)(c) of the proposed amendment specifically allows an opting out to the provinces if the federal government should propose anything that would relate to an amendment to our constitution on property; and again we see the variation between the opting out ability of the provinces under the Conservative formula. In other words last week the proposal on an amendment was to entrench property across Canada and yet by the very nature of this proposed clause that we have before us we allow the provinces, at least three of them, to opt out of such a proposal to an amending formula. It just appears to me that it just shows the deficiency. How can you have rights across Canada when provinces can opt out, and this is exactly what you are going to have. You want a charter of rights for all Canadians, yet three provinces can opt out.

I pick up on one aspect that I have felt very strongly about under their proposal and that is what happens to the Atlantic provinces? As Senator Roblin said the east under the Victoria formula has a better position than the west. The east is in a very weak position today. It may not be a weak position in a hundred years from now and it was not perhaps in 1867, but it is in a weak position today. It is weak in population and it is weak economically.

Now, all constitutions should protect weak areas of Canada. The proposition that we have here before us is a proposition that says that all four provinces in the Atlantic provinces must veto. Under the Victoria you need three in order to veto an amendment and I feel just on that basis alone the Vancouver formula cannot be acceptable. All three Maritime Premiers said that they would go for the Vancouver formula if there was consensus, and I will deal with that in a moment, if there was consensus; but they liked the Victoria formula better if the recognition of Prince Edward Island as a province was there, which is certainly what it will be in the amended version of the proposal.

Finally, Mr. Chairman, and it is not finally because I have one other—two finaily’s, yes—our proposal allows for at least consultation over two years. This proposal does not allow for

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consultation on an amending formula. It must be agreed to. This is what brings me to this idea of consensus.

I will deal first with the consensus and then go back to the idea of the two year period in which the provinces can come to some agreement if they do not like the Victoria formula as proposed here, or make amendments to it; but consensus, from all that I have been able to read, the only consensus was that the provinces agreed to pursue a formula along the lines mentioned, or the Vancouver formula.

In my view, they never went into detail of such a formula and they never looked at how far was the opting out to go. They specifically put down references, but I have not yet found that there was ever a consensus on the true operation of the Vancouver formula which is what the Conservatives here in their motion before us are stating, that there is a consensus, and I personally cannot say that there would be a consensus.

If it had ever come back to this Committee to even be debated there would not have been a consensus across Canada on it.

The final point that I would like to make is that we may have in our own proposal the Victoria formula but at least there is a two-year period that allows us to come up with a better formula, allows the provinces to put forth their position. Perhaps there are some of us who do not like the permanent veto, once having achieved 25 per cent, but by the same token most of us realize that there must be protection in any formula, which the Vancouver formula does not give to the rights of Quebec. When I say the rights of Quebec, I mean in particular the cultural, linguistic, and the thing that makes the difference in Quebec that has been recognized by all Canada. At least the Victoria formula allows for growth; it allows for the 25 per cent, if British Columbia ever reaches there and it also allows, which the western provinces are going to get to a lot faster than the eastern provinces are, for the 25 per cent in even Alberta.

So, Mr. Chairman, for the reasons that I have stated. I do not feel that I can support this. I think I have said all I want to say.

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

Honourable John Fraser, followed by the honourable Bryce Mackasey.

Mr. Fraser: Thank you very much, Mr. Chairman. I will try to be brief and deal with some of the comments that have been made by honourable members of this Committee.

Mr. Robinson and some of the Liberal members of this Committee have said repeatedly that the Vancouver formula would create a checkerboard in the country, and the reason they say this is because there is retained under the provinces the right, where proposed amendments would affect those provinces in areas which are particular to the provinces, the right to opt out; or the right to delay opting in, until the

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province is ready to do so; or perhaps until the people in that province were ready to accede to a proposed amendment with some enthusiasm.

Mr. Chairman, Mr. Robinson and Mr. Nystrom and members of the Liberal party have said we cannot put up with any checkerboard in the country. I have to say that while it would be preferable that there not be a checkerboard, in fact the history of the country has been a checkerboard. What we are attempting to do here is to provide an amending formula which has a maximum of consensus, as already described by the government’s own secret Cabinet memorandum and which gives an amount of flexibility which would go a long way to smoothing over some of the divisions that are in existence in the country at the present time.

But dealing specifically with the checkerboard, Mr. Robinson has forgotten that one of the most significant checkerboards that his support of the government’s position will guarantee is the checkerboard of language rights under Section 133, and that is the right of the Francophone minorities and English minorities to have the right to use their language both in the courts and in the legislatures.

Mr. Robinson gets very enthusiastic about certain rights, which he is quite prepared to unilaterally impose. But Mr. Robinson and the New Democratic Party have changed, interestingly enough, their position on unilaterally imposing the language provisions of Section 133. It does not seem to matter to Mr. Robinson now that Quebec and Manitoba and New Brunswick will of course be subject to the provisions of Section 133, that is, language rights in the courts and the legislatures. Mr. Robinson and the New Democratic Party were going to move a specific amendment to this Committee, making sure that the last check on the board was removed by insisting that Section 133 should be imposed on Ontario. They of course were going to do that until the provincial leader of the New Democratic Party in Ontario telephoned them and said, “Do not do that, it might hurt me in the coming election”.

While I will support Mr. Robinson in his enthusiastic declamation that rights are important, it is very interesting that Mr. Robinson’s insistence on rights stops short of the language rights of .5 million Francophones in Ontario.

I might say, especially to the Francophone members of the Liberal party, that they show an amazing insensitivity to this particular checkerboard which is being left in the country as a consequence of the policies of the Liberal party and the provisions that the Liberal party is putting forward.

I have also heard honourable members of this Committee say that under the Vancouver formula, Quebec would lose its veto, and Quebec has certain characteristics to it and about it which require some kind of veto. I just have to point out that in the Vancouver formula of course, that veto is retained.

What the so-called Victoria Formula imposes, if it passes this Committee with the support of the NDP and the Liberals, is that it establishes for two provinces, Ontario and Quebec, a permanent veto. It establishes the veto in the first instance on

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the basis of population alone, that is that if either of those two provinces at any time have or had 25 per cent of the population of Canada, then they will retain forever a veto based on the fact that at one time they had 25 per cent of the population. This has been a little difficult for some people to understand.

The leading newspaper in the province of British Columbia did not understand it, and said that this was not so, that Ontario or Quebec could eventually lose the veto if their populations dropped below 25 per cent; and that if the British Columbia someday, in 100 years, came up to 25 per cent, British Columbia would acquire a veto based on population. The Vancouver Sun editorial board quickly re-read the document we have in front of us and very properly issued a retraction saying, “That is not so”. It is true that the proposal we have in front of us, the government proposal, would give for all time a permanent veto to two provinces. I would remind Mr. Robinson, who feels very strongly about rights as I do, and I say that genuinely, his interest in rights is genuine, that by supporting the Victoria formula he of course is creating the possibility that the Province of Ontario can forever refuse to accept the provisions of Section 133, absolutely forever.

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And while I do not believe that the province of Ontario will in fact do that, I just point out, and I point out to Liberal members, that that is the power you are giving to the Province of Ontario, to forever refuse to recognize the common sense of the situation that half a million francophone in Ontario ought to be beneficiaries of the same rights under Section 133 as are possessed by the francophone minority in Manitoba, the francophone minority, albeit a large one, in New Brunswick, and the English-speaking minority in Quebec.

The Victoria formula, which the government would have us accede to, enshrines as a basic principle that somehow or other the population, the numbers in the province, is the basis upon which you establish a check against a constitutional change, and while that may seem very sensible to people in Ontario and it might seem quite sensible to people in a province that is about to get 25 per cent of the population, it runs contrary to the fundamental principle upon which the country was put together that it was a partnership and the provinces are equal. Not on the basis of their population, but on the basis of their fact, of the political fact that they are entities as provinces and that within the areas of jurisdiction in which the constitution gives them jurisdiction they are equal one with the other.

And so the Victoria formula, which because the Minister has said that the Liberal members are going to reject our proposal which will no doubt pass, does several things: it enshrines the concept that population is somehow or other the basis of who gets more rights than somebody else in the constitution of Canada when it comes to amendments, it leaves open to the Province of Ontario the right forever to exclude its francophone citizens or residents because we are citizens of Canada, its francophone residents from the privileges of Section 133, and I have on another occasion in this Committee

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remarked on what I think the motivation for that extraordinarily unfair situation is, but in keeping with the sense of civility which has been established by our Joint Chairman, I will not repeat those charges today because they agitated and upset certain members of this honourable Committee.

I do not see how, through you, Mr. Chairman, how honourable members are ever going to persuade the western provinces that Ontario ought to have a permanent veto, and I do not think that you are ever going to persuade the people in the western provinces that Ontario ought to have a special veto just based on the fact that they have a large population.

I could, quite frankly, live with some form of veto other than the one that we expressed in our amendment with respect to the province of Quebec, and the reason ought to be obvious but I want to state it to be on the record. Quebec has special and particular concerns, that along with all those they have in common with the rest of us are special and particular and I think that honourable members will agree that since I have been in the House of Commons, since 1972, on every occasion that I can I have respected those particular and special interests and I could quite easily live some kind of veto to protect those interest; I say we have it in our amendment, but I can accept some other kind.

However, I have to say to honourable members, those of you who are going to go along with this Victoria formula, that I cannot accept in principle and I never will accept in principle the veto right that you are giving to the province of Ontario because it is based just on numbers, and it is not based on common sense, and it is going to inflame the western provinces further in their feeling that they are not being fairly treated and that may well apply to the maritime provinces as well.

Interestingly enough that if this Victoria formula is such a panacea to all our woes, it is interesting that the major parties in the provincial field in Quebec are not supporting it, and the western provinces are not supporting it, and it is not enough for the government to come along as government members have done because they have heard it from the Minister that this was all agreed to back in 1970 or 1971, and as a consequence it ought now to be acceptable across the country. The fact of the matter is it is not acceptable.

Now, you can impose it because you have more troops at this table than we have, but you should not impose it thinking that because some kind of agreement or consensus was hammered out ten years ago, that that agreement is in evidence today because it just clearly is not.

So through you, Mr. Chairman, I would just say, and I suppose I am doing this more to get it on the record than anything else because the Minister has said that he has already told his troops how to vote, it does not make much difference what I say, but I want it certainly clearly on the record what my views are and I am not satisfied with either the common sense of the government position on the Victoria formula; but I suppose fundamentally, I do not think it is fair, I do not think it is fair to the western provinces and I am going to end on this note: I do not think it is fair to the francophone minority in the province of Ontario. If the government decides to go ahead in

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spite of that, then do not ever blame Bill Davis for the fact that he has not made that great symbolic step which you have all been saying he ought to make; I think he ought to make it, too, but if he does not make it and if Ontario never makes it, then the blame hangs on your shoulders and the shame of it hangs over your heads.

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

1 see that Mr. Robinson would have a question to ask the honourable John Fraser.

Mr. Robinson: Mr. Chairman, if I might just ask a couple of very brief questions of Mr. Fraser arising from his remarks, particularly concerning Section 133 of the British North America Act and the remarks that he made about the position which the New Democratic Party has taken on this, I want to say that I respect the position that Mr. Fraser has taken throughout on this particular question, I know he has expressed himself very forcefully on it on a number of occasions. But perhaps Mr. Fraser could indicate to this Committee, through you, Mr. Chairman, and to the people of Canada, what action the federal Conservative Party intends to take to translate those noble principles into reality before this Committee?

As I say, I appreciate that Mr. Fraser himself has spoken out on this but I wonder if Mr. Fraser might, for the record and for this Committee, state what the Conservative Party federally intends to do to translate those principles into action.

Mr. Fraser: Well, in answer to what Mr. Robinson has asked me, and it is a fair question, our position fundamentally has been that we do not believe in unilaterally changing the constitution and the division of powers in this country.

We have more faith than Mr. Robinson has, or that the Liberal party has, that when an expression of what we think is fair and appropriate comes out of this Committee, that that in itself will go a long way to persuading the provincial legislatures to get in line with our thinking. We believe that the very fact that this Committee, with Mr. Robinson’s help, has sat a great deal longer than the Liberals would have had it sit, has given Canadians a much better understanding of what we are trying to do here.

We believe that, with respect to the Charter of Rights, much of it can be made commendable to provincial legislatures and we believe that those provincial legislatures that, without good reason or through intransigence, pay no attention to what is being done here will eventually rue the day politically.

It is a fundamentally philosophical difference in our approach. I do not happen to believe that despite the protestations of the Minister of Justice, I believe that he is sincere in what he says, I just do not think he is accurate. I do not think that when the so-called failure took place late this summer, that that means that success cannot be achieved; I do not think that there is some magic cut-off date to progress in this

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country, if I did I would have quit my political efforts a long time ago.

I suppose I can only respond by reiterating what I said the other day on the rights of the aboriginal peoples: nobody came farther faster on the recognition of aboriginal rights at the last minute than the Right Honourable Prime Minister of Canada, because certainly my understanding of the position he has taken in the past is that he either did not want them recognized or was very suspicious that they ought to be part of the law of Canada. There is a change.

I think that you can always have change progress and I know Mr. Robinson will forgive me for referring to a personal comment that I have made to him at times when both of us on the same cause have not always got what we wanted and I said: well, you move the world a little bit each day and some days you just hold firm to keep it from rolling back.

Mr. Robinson: Mr. Chairman, I thank Mr. Fraser for that answer and my final supplementary question, then is perhaps he could elaborate a bit on what sort of message he believes this Committee should send to the provinces; and secondly, Mr. Fraser, through you, Mr. Chairman, indicated that he was concerned Quebec’s special and particular concerns be addressed in the amending formula. How does he believe that is being done in this amending formula?

Mr. Fraser: Well, because there are four enumerated provisions where it effects provincial rights and concerns they can opt out.

Now, if somebody wants to come up with another amending formula for Quebec which gives it some kind of veto on its special and particular concerns, I would entertain that, not only with an open mind but with considerable sympathy. I just want it clearly understood, especially to my good friend John Lapierre and others, let it be clearly on the record that I understand and have a very great sensitivity and feeling for and I will be a champion of the fact in my view in this country there are special and appropriate things that have to be considered with respect to the continued viable life of the Province of Quebec within our Canadian community, whatever their numbers may be, but I also say that that ought to apply to francophones outside of Ontario.

Now, so far as the exact, coming back to part of the question that Mr. Robinson directed to me, what sort of message should we send short of a unilateral imposition to provinces on the language rights of the francophones, we should invite them to consider it and it ought to be unanimous and that is my personal view. If such a resolution was in front of me that is the way I would vote.

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

Honourable Bryce Mackasey followed by honourable David Crombie.

Honourable Bryce Mackasey.

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Mr. Mackasey: Mr. Chairman, this is one of the really substantive issues that this Committee has been asked to face…

The Joint Chairman (Mr. Joyal): Order, please. I have invited the honourable Bryce Mackasey and I think in all fairness members have to listen to what the honourable Bryce Mackasey has to say at this point in the debate.

Mr. Mackasey: I am rather sorry, Mr. Chairman, that we got back on the debate on Section 133, because I think Mr. Robinson has been made a scapegoat by Mr. Fraser.

As I understand his position over the last month it has been precisely the position of each and every one of us around this table, no better, no worse, no more sincere, no more hypocritical, and there is nothing to prevent Mr. Fraser from having brought here an amendment, as Senator Asselin wanted to do, in fairness to Senator Asselin, with conviction and courage, it could have been brought in by Mr. Fraser on behalf of his party which would have created a dilemma for a lot of people, and I say this because Mr. Fraser waxed very eloquent two weeks ago against Senator Austin and against other members here on behalf of the franco-Ontarians, and I really thought that he was preparing the way to bring in such an amendment.

He did not, and it is a little late now for him to be throwing rocks at Mr. Robinson who was persuaded, I presume, by the arguments that we could set into motion a form of backlash that would eliminate, negate or even wipe out entirely the progress we all agree is being made in the province of Ontario, and I just want to make that very clear because I have been very ill at ease in taking a lecture indirectly from Mr. Fraser about what is best for the franco-Ontarians of Ontario. I would like to hear what he thinks is best for the francophones of Maillardville and British Columbia and what he has done recently in the way of proposals here. I have not heard a single word from Mr. Fraser about the French Canadian people in British Columbia or the absurd position in that province when we tried to extend Radio Canada into Victoria and Vancouver as a government knowing the political risk and the political fallout.

Now, Mr. Chairman, it seems to me that there are a lot of things around this Committee that we have agreed to, our thinking has all evolved and I would have to say to the people, as we said Saturday, that more often than not we are on side rather than partisan with each other.

I think we all agree that the constitution must be patriated, or repatriated as one Senator suggested, or patriated, and we all agreed that that would be a useless gesture. Even the Kershaw Report makes that point. That would be a useless gesture unless there is an amending formula attached to the constitution requiring in the British Parliament some legislative process.

The question that faces all of us, and I do not think this is a partisan statement, is what is the appropriate formula.

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And our dilemma in coming up with an appropriate formula portrays, I think, to the Canadian people who watch this hearing in growing numbers is the dilemma with which the provincial Premiers have had to deal with on this issue. The provincial Premiers have had to weigh the various proposals advanced not only by the Prime Minister but by other Premiers for an amending formula, since we all agree we must have one, in light of what is best for the country and what is best for the region and what is best for their own province.

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I do not pass judgment on those who support the Vancouver concept. I do not pass judgment who support the Victoria formula.

But I think the Canadian people will pass judgment on all of us if we do not take advantage, over the next two years, of one of the features of this resolution which has been virtually overlooked, and which I have stressed as often as possible; that is, the open invitation of the government that when this resolution is returned, to come up with a better formula that the Victoria one.

Really, as my learned friend of many years, Senator Connolly, has reminded me, the Victoria formula, so-called, is the best for the moment nothing more than a transitional formula, a formula which would apply two years down the road from a certain date, the date when our resolution is back in Canada and amended.

If the Canadian public are finally concerned—and I think they are—with the need to put the constitution behind us and to get on or to appear to get on with other issues, they are going to demand from the provincial premiers, Mr. Chairman, that we do find an amending formula that is as acceptable as possible to all of us who are interested in the country.

Now, if I were a westerner I would be concerned about a formula which appears to stifle, to negate or impede our progress in the economic field now that their resources are so valuable, now that they have the opportunity and their population is growing.

I understand their concern with a formula which appears to give some weight to the two central provinces. I can understand that concern.

I am simply saying that what we are trying to do here with the Victoria formula is, in essence, to say to the west, to the east and to everybody: “This is the amending formula which, for want of a better one, we will ask Great Britain to include in our constitution—our formula,” one that we suggest, and not one that Great Britain proposes.

And if, over a period of two years we can sit down as civilized people, the premiers and the Prime Minister of the day, hopefully in the glare of television, faced with the challenge of finding a formula, not necessarily Victoria, or Vancouver—call it what you want; you could call it the Lincoln formula for my riding; but a formula which would meet the concerns of the regions of this country.

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Victoria is not a formula which gives a veto to Quebec or to Ontario, Mr. Chairman; it is a formula based on a concept which you find in the BNA Act—when you talk about Senators and representations—on four regions of this country: the Atlantic region, the western region; Ontario is a province, but it is also a region by virtue of the coincidence of its numbers—and the same thing can be said of Quebec.

So, what we are really saying is we want a formula which would take into consideration the four regions of the country.

I am not suggesting for one moment that if we adopted the Victoria formula or rejected the Vancouver formula that that casts the stone for another hundred years.

It is, as Senator Connolly referred to it, a springboard, a starting point, a departure point, where the best minds, legal minds, the best politicians and premiers of the province and their advisers, can over the next two years, sit down with that basic formula called the Victoria formula and amend, improve it, adjust it, in such a way as to take into consideration the legitimate concerns of all the regions of this country.

May I call it 6 o’clock, Mr. Chairman?

The Joint Chairman (Mr. Joyal): Yes, it is 6 p.m.

Thank you very much, the honourable Bryce Mackasey, for your co-operation.

The meeting is adjourned until 8 o’clock tonight.

[French]

The meeting is adjourned.

[English]

EVENING SITTING

2010

The Joint Chairman (Mr. Joyal): Order, please. We are on Clause 41, which is entitled Procedure for Amending the Constitution of Canada, Part V of the proposed motion.

I have a list of 10 speakers on that proposed amendment in relation to Clause 41.

Before I invite the honourable Bryce Mackasey to continue and conclude his intervention, I would like to invite the honourable the Minister of Justice.

Mr. Chrétien: Mr. Chairman, I think before we begin, and in order not to interrupt the proceedings and in view of the deadline of the press and others, there is a matter which has preoccupied a lot of people in the last few days, hours and weeks. On Friday, there was an element of the aboriginal problem left over. It was the question what we would do if there was a need to amend the statement that we happily put into the constitution.

After a great deal of discussion about it, about how that can be amended, we have come to the conclusion that the best way would be to apply the aboriginal rights by way of the same amending formula as in the case with other problems; so that any change in the aboriginal statement we made on Friday

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would not be amendable without the amending formula as known all across Canada.

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

The honourable Senator Austin.

Senator Austin: Thank you, Mr. Chairman.

I would like to ask the Minister whether, indeed, what he is saying is that with respect to aboriginal rights of the people who live—and I quote “north of 60°”, that is in the Yukon and the Northwest Territories, he is now giving the provinces a say in the affairs of those native communities?

Mr. Chrétien: In relation to aboriginal rights, yes; in order to amend the general amending formula would apply.

In passing, I believe I can use the occasion to say this: on Friday, I forgot to mention the good work of Senator Austin in the whole debate. I was very embarrassed that I had forgotten him. It was so obvious to everybody.

Personally, I would like to say to everybody that he has been working very hard behind the scenes on that issue and I should have mentioned him on Friday.

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

I would like to invite the honourable Bryce Mackasey to continue with his intervention on the amendment moved by the honourable Jake Epp—to conclude so that the Chair could invite the honourable David Crombie to follow.

The honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, there will be a lot of time for the honourable David Crombie when I am finished, I can assure you. I do not intend to be too long.

I would like to review some of the things I have said before 6 o’clock this evening.

This is, as you have already noted, one of the extremely important amendments that we have had to deal with and will have to deal with. It is important because there is a fundamental difference in our position as compared with that of the Official Opposition.

It is important because their amendment is one which has some validity. It is an attempt on their part to provide a suitable amending formula.

It is a recognition, Mr. Chairman, on the part of all of us, even the Committee in Great Britain, that to make the necessary changes in Great Britain would make it possible for us to amend our formula in the future, and it is imperative that we must have an amending formula.

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

The Joint Chairman (Mr. Joyal): I am ready to hear a point of order, but I have always invited honourable members to wait until the main intervention is completed, unless it is really a point of order. It is with great respect that I am saying that to the honourable member.

The honourable John Fraser.

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Mr. Fraser: Mr. Chairman, I recognize that. I will be very brief.

I hope I have misinterpreted what my good friend Mr. Mackasey has said. Because it seems to me that there may have been a suggestion that this amendment is somehow rather connected with deliberations which are taking place in Great Britain.

I would want it to be clearly understood that the position we have taken on this amendment was one taken long before we have ever heard of Sir Anthony Kershaw’s report.

I only say that, Mr. Chairman, because it has not been related in any way.

Mr. Mackasey: I can assure Mr. Fraser that anybody who as ever been connected with the issue of amending the Canadian constitution, recognizes the need for an amending formula. I said the recent Committee report which had so much publicity in Canada recently, recognizes that fact as well. That is what I say.

I make no link between the Conservative Party and the British Conservative Party or with that Committee.

I am simply saying that we agree that there must be an amending formula if patriation of the constitution is to have any significance.

If we cannot amend it once it is home, we might as well leave it where it is.

That is the conclusion to which we have all come, and it is the only reason that the Statute of Westminster is such as it is. I am saying this in as non partisan a way as is possible. We agree that there must be an amending formula. We, as a government, have proposed an amending formula.

The Conservatives, in their wisdom, have proposed an alternative. They are entitled to their opinion to the same degree as we are to ours.

I think it indicates to the Canadian public the difficulty of arriving at a consensus, a conclusion, a formula, that is acceptable to all the provincial premiers and the federal government.

That is why Mr. Chairman, the resolution contains provisions in Clause 37 which makes it very clear, if read carefully, that the formula that we propose, or any formula which happens to be in the Charter, is at best a transitional one.

Its life under the proposal here is two years. It may be longer; it may be shorter; but it is at best a transitional formula.

If the goodwill, that we think is developing across Canada, and if public opinion is starting to marshall forces and if Canadians are concerned and are wondering why there is not another meeting with, say, the provincial premiers and the federal government to come to some conclusion, I am simply suggesting and repeating that the scenario that could and will evolve is a meeting within a year—because the resolution makes that point—between the federal government and the ten provincial premiers, at which, hopefully, they can come to a

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conclusion as to which is the proper formula. It might not be Victoria; it might not be Vancouver; it might be a composite; it might be something brand new. Public opinion could very well dictate that progress. That is the point I am making.

But, we have to begin. What the government is proposing here is the formula which they felt was the one formula which at one time at least had some consensus.

Now, I can understand some of the misgivings that people in the West have about the Victoria Charter. It could be interpreted as a perpetual veto to two provinces forever to the detriment of the West. I do not read it in that way. But we will not go into the merits.

We, in turn, see the Vancouver formula as creating—and I am sure my colleagues, Coline Campbell and Mr. Robinson put it more eloquently this morning than I could possibly do— within a comparatively short period of time set up what we have all called a checkerboard pattern—a formula, which, if adopted, would conceivably mean aboriginal rights would be recognized in seven provinces and not in three; and that language rights could be recognized in seven of the provinces and not three.

I could go on and on with all the desirable features of the Charter.

Mr. Chairman, what I have to say in conclusion is that the Vancouver formula, as far as I am concerned, is totally inadequate. If I am wrong, I would suggest that somebody should take the initiative and ask the ten Premiers between now and the passing of the resolution, to endorse the Vancouver formula, or 80 per cent of them, or seven provinces out of 10, or more. They have been strangely silent since we have begun.

The few of them who have spoken out publicly have rejected the Vancouver formula and said they were prepared to accept some other formula.

Now, I am talking, I must admit, to the Canadian public and saying, “Yes, there is an impasse, not simply on this Committee, but between the two levels of government. That impasse is not something new. At the governmental level it goes back at least 50 years.” To think that we are going to rectify it in 50 days or 50 weeks it is true only if the Canadian public demands of their elected representatives at the federal and provincial level some understanding that we have to get out of this straitjacket and get the impasse behind us and to resort here to unusual methods in order to get the procedure in motion.

What is the procedure? The procedure is: one, that we bring back the constitution; that it includes a transitional formula which may any time, if a better one is not proposed, a permanent one; that we meet with the provinces within a year of the return; and that the constitution include a bill of rights which Canadians from one coast to the other have expressed a desire and a need for.

Canadians, Mr. Chairman, as you know, are of Japanese origin, Ukrainian, German, Canadians who said, “We want a constitution recognizing the multiculturalism of Canada, not

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just its bilingualism, a constitution which says we can work anywhere we want to in Canada.”

I will not repeat them all. We are all familiar with them.

But, Mr. Chairman, I have to say in conclusion that I recognize the sincerity of the Opposition in suggesting the Vancouver formula, and they must recognize my concern about the checkerboard fashion.

One honourable senator today talked about some of the accommodation we made in the 1960’s on shared-cost programs. They were not constitutional changes; they were legislative agreements.

I might say, at the risk of upsetting the Minister and others, that I share the concern of Mr. Crombie, as expressed on more than one occasion in the House, that the flexibility that we have built into our social program has not done very much towards unifying this country—and Vancouver would accentuate the difference.

We are making a mockery of the concept that we want a country where there is equal opportunity. If you are going to have a medicare program in Nova Scotia which is inferior to that of Ontario, it is not equality of opportunity. If you are going to have a medicare program which is superior in Ontario to New Brunswick, it is not equality of opportunity. And that is happening under the block formula.

Once you are giving the provinces this greater flexibility in some of the programs which are the cornerstone of Canada, then we are balkanizing the country; how much greater will be balkanize it with the Vancouver formula!

But, Mr. Chairman, I would strongly urge members of this Committee to reject the amendment, and I would also make a plea to Canadians to appreciate the fact that we have a 24 month period during which time Canadians have a right to expect the ten premiers and the Prime Minister to sit down with French speaking Canadians and say, “Put a little water in the wine and come up with an amending formula and let us get on with the job”.

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

I would like, then, to invite the honourable David Crombie followed by the honourable Perrin Beatty.

The honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

I do not propose to go over the arguments already made with respect to the efficacy of the Vancouver consensus, and what we might regard as the deficiencies of the Victoria formula.

There is one concern, and the only area I wish to make any contribution at this point, Mr. Chairman. The one matter I have the concern about is that as I have listened to the debate, our party is being attacked for our proposal for amending the

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constitution on the basis that it would create a checkerboard in Canada.

Now, that causes me some concern, because I have the feeling that what is being said is that the checkerboard in Canada is a bad thing. I disagree with that, Mr. Chairman.

Clearly, anyone who knows the history of this country knows it has grown and flourished because, indeed, we have had a checkerboard.

I would like to elaborate for a second on that, if you like.

I entirely agree with Mr. Mackasey, Mr. Chairman, that there are certain rights which exist clearly from coast to coast, and I have voiced my opinion on those in the past.

But to suggest that somehow an amending formula is a bad thing, simple because it creates a checkerboard, I think is the wrong ground on which to attack it.

There is no amending formula here, Mr. Chairman, which would create a checkerboard. This country is a checkerboard. It always has been and it has flourished because of it.

Let me offer one or two examples, Mr. Chairman. The British North America Act itself provided the grid for the checkerboard—Section 91 not only gave the federal government all of the powers which are necessary for nation building, but provided a list of some 29, extended to 31, powers which it exclusively had. It then gave to the provinces in Section 92 another 16.

Now, those 16 powers to the provinces created the checkerboard. It allowed provinces to create programs in relation to those 16 powers which were different from one province to another—and for very good reason. We are different from one province to another.

That was particularly important, Mr. Chairman, in relation to questions of language and culture.

Long before the British North America Act, in the Quebec Act of 1774 initially; in 1791, again, in the Act of Union of 1841 we recognized the essentials of the checkerboard system so that we could allow different languages and cultures to flourish.

I might say that not only English and French have benefitted from that, but indeed language programs in many provinces, from many other cultures—German, Ukrainian, which come readily to mind; and not only out west, but indeed in the City of Toronto, were able to flourish as a consequence of the recognition of the necessity in this country to have the checkerboard to allow the protection to minorities both for language and culture, for religion and for the common law as well as the civil law. We do not have the civil law in every province. That is the checkerboard. It has helped us, Mr. Chairman.

And beyond the questions of language, culture, religion and law, the agricultural policy: Section 95 or whatever the number is; and the concurrent jurisdiction to allow not only the opportunity to the federal government to create policies

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which are from one coast to the other, but also in each of the provinces there has been adopted agricultural programs which have differed from one province to another, because what people grow, how they grow it, and when they grow it, and when they harvest and market it—those matters differ from one province to another.

I think—and I am not from the farm belt, as you know Mr. Chairman.

But as I recall, one of the most successful agricultural policies in this country is a crop insurance program which serves 100 thousand farmers in this country.

Each province in this country organizes its own policy, its own funding, all different from the other with the federal government in relation to the needs of the farmers in their own province. That is a checkerboard, Mr. Chairman.

Mr. Mackasey mentions the necessity of making sure that medicare is the same from coast to coast. I have agreed with him on that in the past; but I do not think he should forget too easily when it came to social programs in this country—and I would remind Mr. Robinson and I do not know where the other member of the gang of two is; but Mr. Robinson and his colleagues, that the traditional, the CCF party, if I may go back to those days—all sorts of social policies which they could not get into the country from coast to coast. Let me just look at those for one second and remind you that we had to wait until it could be agreed to coast to coast, and these programs would have been a long time in coming, Mr. Chairman, unless, of course, we wanted to impose them one after the other: medicare, hospital insurance, labour legislation. I can speak specifically of education, and I can particularly mention Section 93, because it gave both provincial and federal responsibility to allow the incredible diversity that the country requires.

As we sat here listening to the educational system of Newfoundland, it sounded as least as coherent as the one that I find in the City of Toronto, which is not always easy to understand. Mr. Chairman, that is a checkerboard.

The Quebec Pension Plan was a constitutional amendment in 1963 or 1964; it allowed for that diversity in the Province of Quebec which they desired. That is a checkerboard, Mr. Chairman!

I can go on with respect to other social programs.

Mr. Chairman, let me deal with some opportunities for economic experimentation in the history of this country: public enterprise.

In 1963 or 1964 in the Province of Quebec I think they nationalized—it was 1962; 51 years earlier, Mr. Chairman, another province had already created public enterprise with respect to hydro electric energy, and that was the Province of Ontario by referendum, I might add, in 1911; an experiment in public enterprise which was, I think an example to many other public enterprises in this country—potash in Saskatchewan; asbestos in the Province of Quebec; the energy board in Alberta—I am sure I can recite many others in other provinces

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they were experiments, all different and all responding to the needs of those provinces. That is checkerboard.

2030

Something close to my own particular concern for a number of years, if you tried to pour the needs of the towns, the neighbourhoods, the villages and particularly the cities of this country into one general policy, and did not allow for a checkerboard then you would do a serious disservice to the organic growth of those towns and villages and neighbourhoods and cities, Mr. Chairman.

My concern in mentioning all of this is that I guess I have a particular concern because I spent a lot of time, certainly in my public life, fighting off the homogenizers, those who require uniformity because it is easier.

That is the problem. My concern, Mr. Chairman, if they do not like the Vancouver consensus, give me some other reasons. Do not tell me it is because they do not like the checkerboard.

Mr. Mackasey: Could I ask you a question?

Mr. Crombie: In a second, Mr. Mackasey. You are on your 511th minute and I am only moving up to 200 on mine.

My concern, Mr. Chairman, is that the ground for saying no to the Vancouver consensus should not be that we reject as the way to approach the practical problems of this country, a checkerboard. It is the only one that has allowed us to survive so that in fact the unity that they seek comes from the diversity that is there. You call it a checkerboard, I call it federalism, Mr. Chairman, and that is the fundamental issue that we are having. It is indeed unique. Senator Connolly says it is a community of communities and indeed there is no question that people have been able to use that—I am sorry Senator, it was Jean Lapierre talking out of the side of this mouth—I apologize. Senator, it was Mr. Lapierre—community of communities and indeed some people have used that as a kind of stick to beat other people with. Well, it is important, communities are important, and there are many communities in this country.

Some hon. Members: Hear, hear!

Mr. Crombie: And they survive and grow and flourish and produce good people because they are allowed to grow according to their own needs and not some uniform homogenous policy that comes out of this city, is in fact the issue.

So let us agree, Mr. Chairman, that there are rights and freedoms that Canadians must enjoy from coast to coast but I got worried when I heard people say because it creates a checkerboard that is bad.

Let me conclude by saying on language policy alone from the government’s own proposal they have not only accepted the checkerboard in language policy contained in Section 133 of the British North America Act, they have extended that checkerboard so now we have not three but four kinds of ways in which you can deal with language policy.

So I just did not want what I considered to be the fundamental public organizing political philosophy of this country,

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the checkerboard, as somehow being eaten up because the government chooses to defeat the Vancouver consensus. Play it on some other ground.

Mr. Mackasey: Mr. Chairman, I would like to ask a question because I am sincerely interested in the argument, and I say that; and if we are going to resort to ridicule, I can do the same, but I do not think I need to.

I am asking if what you described, and you described right and proper that Canada is indeed a checkerboard, that checkerboard I submit, Mr. Crombie stems from the legislative process. Is there a checkerboard at present in the constitution? Do we have constitution, apart from the language, and I am asking Mr. Crombie…

Mr. Crombie: Mr. Chairman, let me answer the question. If you look at the British North America Act you will find, to use some examples, Section 91 which gives not only the general power for peace, order and good government which used to be peace, welfare and good government up until 1841 but also listed 29 powers which were expanded by constitutional limit to 31 which they gave exclusively to the federal government. Section 92 give 16 powers exclusively to the provincial government. Those powers became the legislative basis or the basis upon which all the legislation of this country is based. If you add in Section 93, 94 and 95 which also deal with allocated powers, the constitution lays out the essential checkerboard. The policies, programs, the legislation is rooted in those, so the essential understanding of this country is federal and not unitary.

Senator Austin: Mr. Chairman, if Mr. Crombie would accept another question, I would like to address it to him. Mr. Crombie, I would like to ask you whether the provinces as juridical entities are checkerboarded. Do they not have all the same rights under the division of powers under the British North America Act? And to use your argument about checkerboarding, Alberta and Saskatchewan never would have had its resources rewarded to them in 1930.

Mr. Crombie: Well, two points if I could, provinces of course administer their provinces, at least most provinces. They do differ historically. The Province of Newfoundland, for example, has an entirely different historical context in terms of whether or not the municipalities had a growth or did not. They depended far more, in some instances, on the St. John’s government. To use my own province, the Province of Ontario has always used it on the basis of a checkerboard administratively and they were able to do so because of Section 92(8) which allowed them to have powers with respect to municipalities. Everybody knows that.

Mr. Mackasey: Every province has that power.

Mr. Crombie: Exactly, but they do it differently within their own concept. That is all I am saying.

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Mr. Mackasey: They all have the same power, that is what I am saying; no checkerboard of power.

Mr. Crombie: If you are arguing whether or not there are different powers and different rights which were given to one province and not to another, of course there was; and in a number of instances that was not acceptable and in a number of instances it was. One example which I have already used. Section 133 dealing with language made impositions on the Province of Quebec with respect to English and French it did not do on the Province of Ontario or New Brunswick or Nova Scotia which were joined to Confederation at that time.

Also in relation to the four ways in which the provinces were financed, those were dealt with differently. Anyone with a smattering of Canadian history knows that the provinces were dealt with differently in terms of the financial arrangements made with each of the four original provinces.

When it came to natural resources, which Senator Austin has raised, of course we did deal with them differently and it took agitation on the part of Saskatchewan and Alberta to make sure that they had the same rights as others. When Newfoundland came in, in 1949, it came under different arrangements than the Province of Ontario did in 1867. We have accepted for a long time not only the principle that there are certain rights which we must all have but at least as importantly that there are certain powers which some provinces need and certain things and certain programs which are required in certain provinces which are not required in others. We have understood that because we recognize the unity and diversity must both be there.

Senator Austin: I think, Mr. Crombie, that Mr. Mackasey’s point has not been answered by you. What we are seeking is the enshrinement of juridical equality amongst the provinces. The legislative programs are bilateral or multilateral but they are not constitutional. Of course we need legislative diversity, but the question at issue is do we need constitutional checkerboarding and that is the question that Mr. Wells addressed in his letter of January 5th, and I thought addressed so well.

Mr. Crombie: What about denominational rights then, Senator?

Senator Austin: There are grandfather rights, vested rights by history in Canada and they are entrenched; but the question is do we go on with the diversity of constitutional checkerboarding or do we try to have one constitutional framework. There is no federal system that I know of that has as much entrenched diversity as this one has now.

Mr. Crombie: I guess the irony is, Mr. Chairman, that finally the government’s proposal for constitutional amendment which gives us a final example of checkerboarding as they have allowed the provinces in the western part of Canada to be of a lower colour than the provinces in the eastern part of Canada in relation to the amending formula. How is that for checkerboarding?

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Mr. Mackasey: All right, I will come back to that point, because the Minister made it clear that if the four western Premiers want the precise and equal formula of the Atlantic provinces, they only have to ask for it. If there is a difference it is because that is the way British Columbia wants it.

Mr. Crombie: That is the final point I would like to make, Mr. Chairman. Throughout the piece everytime Mr. Mackasey gets on the hook, or indeed his friend Senator Austin, they keep on saying but if you do not like it you can change it over two years. We can make the same argument, for Vancouver, if you do not like it you can change it over two years.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable David Crombie. I would like to invite honourable Perrin Beatty followed by Mr. Hawkes, but I will have to require unanimous consent from honourable members to invite Mr. Hawkes, because at this point he is not a qualified member of this Committee. Mr. Perrin Beatty.

Mr. Beatty: Mr. Chairman, thank you very much, Mr. Chairman.

Mr. Chairman, I also want to deal with this question of checkerboard Canada that has been referred to by the government supporters. I think that Mr. Crombie very well pointed out the fact that diversity has been a strength of Canada over the course of the last 100 years. What we are talking about here when we are talking about checkerboarding is perhaps attacking the system of federalism which has served Canada so well.

If you listen to the government’s supporters, the advocates of the government’s side, you would be left with the impression that the result of the Vancouver consensus would be to create a Canada more divided than it is today. The word balkanization was used by one of the government members and the impression was left that somehow Canada was more united today than it would be as a result of the Vancouver consensus. I think, Mr. Chairman, it is worthwhile taking a look at this argument because if you look at it closely it does not hold water.

I think the first point to make is that diversity has been part of our tradition in Canada since before Confederation. As Mr. Crombie pointed out, various provinces entered Confederation under different terms and the constitutional relationship between provinces differs from jurisdiction to jurisdiction. It is not something which is alien to Canada. It is something that has been part of Canada’s history and traditions.

I think it is worthwhile taking a look at this whole question as to whether or not the Vancouver consensus, the opting out provisions there, would enable Canada to become more divided or would allow for more diversity than there is today. I think, Mr. Chairman, if you look at it the answer is clearly no, that it will not. I think the first thing that we should recognize is that on any of these constitutional amendments which would have to be made under the terms of the Vancouver consensus, seven out of the ten provinces would have to agree; so you would have a minimum of seven provinces and the federal government adopting the same standards. You would have two thirds,

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six out of 10 is not two thirds, so it must be seven out of 10, a maximum of three would be able to dissent.

Mr. Chairman, what do you have today? In what areas would the provinces be able to opt out, if you like. There would be areas falling under provincial jurisdiction today. There would be areas touching on the rights and privileges of the provinces as the British North America Act is worded today. Mr. Chairman, instead of having seven out of ten with the same standards today, we have a situation where you could have ten different standards and indeed an eleventh standard at the federal level, particularly as it applies to the territories.

Mr. Chairman, what the Vancouver consensus would do is clearly in those areas where amendments were made it would encourage standardization at least among all of those provinces which opted in. There would never be less standardization than there is today. There would only be more, with any amendment made under the terms of the Vancouver consensus.

Mr. Chairman, in addition what it would do would be to encourage the adoption by those who initially who did not choose to opt in. I think perhaps instead of using the term opting out, we should be talking about opting in under the terms of the Vancouver consensus; because what it does do, it provides a formula whereby those maximum of three provinces in each instance could opt in to the program agreed upon by the other provinces and by the federal government.

I think what we would find is that if the rights being discussed by the government members are so demonstrably, so evidently justifiable that Ottawa must be imposing them upon the rest of the country, then clearly the people of those three provinces, the maximum of three provinces who would opt out would obviously be aware of that as well and would bring pressure to bear on their provincial governments, saying that Ottawa has agreed that this is essential and the constitution should be changed in this way; and the other seven provinces or eight provinces or nine provinces have said that they believe that the constitution should be changed in this way because these rights are so fundamental or because this arrangement is so clearly desirable; but you in our capital have chosen not to. Why is this? We believe you should opt in.

If, on the other hand, the people of the province affected do feel that those rights or those arrangements are so essential they should be lobbying with their government to do what the other governments of Canada have done, then Mr. Chairman I think we should ask ourselves whether the people of that province should be coerced into accepting those standards established by people outside of their own boundaries.

Mr. Chairman, what we would find is that if the rights were desirable as each province in turn opted into the provisions, we would find that increasingly the people of recalcitrant provinces would be going to their provincial administrations and asking why is it that you feel that we should not adopt the same standards for our citizens as have been adopted through out the rest of Canada and that is an issue that provincial governments would have to deal directly with their people about and which they would be accountable for by their people.

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Mr. Chairman, I pointed out already that the so-called checkerboard pattern which the government is referring to would not lead to further checkerboarding in Canada, would not lead to Canada being more diverse or that standards would be more diverse than they are today, indeed they would be less diverse because of the fact that seven of the ten, minimum, would have to have opted in.

In addition to that Mr. Chairman, I think that we would be turning the issue around, instead of members on our side arguing in favour of the federal system, because this is essentially what we are doing when we defend a checkerboard Canada, to use the government’s words. What we should be doing is that members on the government’s side and members of the NDP should be explaining why it is essential in a federal system to have enforced conformity. Why you have to have homogenization imposed upon people in a particular region by people from outside that region? Do people, in other words, in Canada not under our federal system, do they not have the right to live their lives in the way they choose to the greatest extent possible in those areas which the Fathers of Confederation in their wisdom gave to the provincial governments as the level of government more close to the people; areas which the Fathers of Confederation felt could afford flexibility, a flexibility which has served us well in this country over the course of the last 111 years, in fact more than that, I guess, 114 years.

Mr. Chairman, the second point I would like to make is that the government members have argued that there was not in fact unanimity in the case of the Vancouver consensus. Mr. Chairman, on this side we are convinced that there was agreement on the Vancouver consensus. But even if you would accept the government’s argument, clearly on the strenght of the evidence that came out this summer, the Vancouver consensus is the closest that we have in Canada to an agreed upon amending formula; it is the closest we have come in recent years; and what the government is doing is seeking to reach back to 1971 to claim that the consensus that was reached at that time should now bind all of the participants despite the fact that that consensus was specifically rejected by some of the partners to the agreement. We heard one of the members of the NDP earlier arguing that there has been movement away from the Vancouver consensus over the course of the last year. Well, if that is the case, Mr. Chairman, if it is valid to say there has been movement since last year away from the Vancouver consensus, it would be worthwhile to look back at the Victoria Charter and ask ourselves about the size of the movement away from that.

Mr. Chairman, that movement is well documented by the fact that it was specifically rejected by some administrations and by the fact that when the various governments, including the federal government, met over the course of the past year they felt it was essential to talk about different formulae, not about the Vancouver, not about the Victoria formula.

Mr. Chairman, Mr. Mackasey and others on the government side have said there will be two years after we have written this into the constitution in which the provinces can get

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together and we can discuss whether an agreement can be reached which is more satisfactory than the Victoria formula.

Mr. Chairman, we say let us meet now. If the government is serious, if they genuinely want to move forward with consensus, if they believe that they are prepared to act in good faith and the consensus can be reached, then let them meet now with the provinces, without any gun to anyone’s head and let them put all of these issues on the table and sit down and say, we want to reach a consensus upon an acceptable amending formula. Because every single jurisdiction in Canada and every political party at the federal level has said that it is in favour of bringing the constitution to Canada, the issue here is what sort of a formula will we incorporate in the constitution to allow us to amend it in the future. Surely now, Mr. Chairman, not later, not after the constitution is brought home, but now is the time for us to be sitting down to discuss in good faith and with common sense what sort of a consensus, what sort of an agreement can be reached in Canada. Let us not put a gun to anyone’s head, let us not deal from a stacked deck after the constitution has been brought home. Let us meet now, let us reach consensus now.

The third point Mr. Chairman, which I think commends the Vancouver consensus to us is flexibility. Precisely the argument that is being made against the Vancouver consensus on the grounds that it would not bind everyone is precisely the greatest argument in favour of its flexibility. It means that you are less likely to get entrenched opposition to changes being made in Canada, you can move ahead recognizing that some people will have the right not to opt in, and it means that important changes to Canada’s constitution can be made more readily than under the Victoria formula. Surely it is desirable, Mr. Chairman, that we should have a formula which allows desirable changes to be made, which allows the modernization of the constitution, which allows improvements to be made from time to time.

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It was Mr. Trudeau and it was the Minister of Justice who said that under their formula it would be impossible to have the Charter of Rights in Canada. What they have demonstrated is that they are incorporating in the constitution an amending formula that could not work to give Canadians what they believe is the essential part of constitutional reform.

What we are proposing, Mr. Chairman, is an amending formula we believe will work, in large part because of its flexibility and what we will see as a result of the Vancouver consensus is that any change that is made will lead to increased opting in, increased standardization of rights within Canada, and increased progress at breaking the impasses which have arisen from time to time between the federal and provincial levels of government.

Mr. Chairman, the fourth item which I think commends itself to all members of the Committee before we vote is that the Vancouver consensus provides for no permanent veto for any Province in Canada. I come from one of those two provinces which will be given a permanent veto under the Victoria Charter but I believe that my constituents do not

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want to see a situation where you have first-class and second-class provinces created in Canada. We do not believe that we should write in for all time that one province or two provinces would have a veto on changes in the constitution, irrespective of any other social or demographic or economic or political changes which might take place in Canada.

We believe that the amending formula should remain flexible and should not freeze for all time a veto for people in two select provinces and discriminate against the people from other provinces, because that is what the Victoria Charter does and that is what the Vancouver consensus tries to avoid.

Mr. Chairman, over eight years in the time I have been in the House of Commons any time that I have spoken in the House of Commons on issues relating to federal-provincial relations my argument has been in favour of a strong central government.

I am not one of those that favours nibbling away at the strength of Ottawa and of its authority, I believe that it is essential that we have a strong central authority. One might think that this would put me on the side of those who are arguing in favour of the Victoria formula, but it does not, as I differ from the proponents of the Victoria formula for two reasons:

First, I believe that the Fathers of Confederation performed their jobs brilliantly, I believe that we have a Canada today which is the envy of the rest of the world and that Canadians, whether born here or having immigrated to Canada, are fortunate to live in one of the most successful, one of the most humane, one of the most just countries of any in the world. And I think that when people make arguments in favour of substantial change they have to demonstrate that there are serious flaws in the country today, that it has broken down, it is not working properly, and I do not think that has been demonstrated.

Most importantly, Mr. Chairman, I do not think it has been demonstrated that our federal system of government in Canada has not worked, and that is the other area in which I disagree and which I fundamentally hold different opinions from those who argue in favour of the Victoria Charter.

I favour the federal system. It is a system best suited for Canadian needs. Federalism, Mr. Chairman, means that we need not be all alike, recognizes that allowing people to live their lives free of external coercion can be a cause of strength in Canada and not of disunity.

What we have seen through this exercise from the time in which this resolution was tabled in the House of Commons until the present is that attempts by Ottawa to standardize, attempts by Ottawa to impose its will upon people of the various regions of Canada have driven Canadians apart; in the name of the unity of Canada they have divided Canadians, and I think that surely if we look at our history in Canada, if we look at the political situation in which Canadians find themselves today, we have to recognize that if you are to build in Canada you build upon the strength of parts to build a strong

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whole, you do not do it by driving people away, you do not do it by imposing external values upon people in a particular region.

Mr. Chairman, there is more than just a touch of arrogance in the belief that Ottawa knows what is right for the rest of the country. It is more than just a touch of arrogance to believe that if something is decided upon as being desirable for my part of the country, for Ontario, that it is necessarily right for the rest of the country, for British Columbia or for Prince Edward Island, or for Newfoundland or Quebec.

Mr. Chairman, it is more than just a touch of arrogance to believe that once you have drunk the waters of the Rideau Canal that somehow you are imbued with an intelligence that you did not have before. Now, I can accept that drinking the waters of the Rideau might affect one’s intelligence but I am not convinced that it would be positive.

I think that we have to recognize, Mr. Chairman, that Canada will succeed if we allow the flexibility which is inherent in federalism, if we allow Canadians in various parts of the country to have their own regional identities and to maintain their own traditions, their own values within the context of a strong and broad Canadian identity which we have today and which we can strengthen.

Mr. Chairman, unity does not mean uniformity and I think that is a point that must be recognized here by all members of the Committee. Uniformity does not give unity and it is not a prerequisite of unity that you have uniformity. You can find unity, national unity in diversity; that is the Canadian experience, that is the Canadian way of life and that is what should be maintained here.

Finally, Mr. Chairman, let me relate it to my own constituency. I come from a rural area where the population is relatively low. Mr. Crombie referred to rural differences from one part of the country to another. One of the things that causes a great deal of dislocation for people in areas like mine, small town and farm areas, is the feeling that somehow the power to control their own lives has been taken away from them and centralized either in the big cities or in the hands of big overweening government today.

I come from an area, Mr. Chairman, where people are proud of their traditions and of their heritage and for their independence, where they have a fierce pride in their ability to maintain their way of life, where they have a recognition of their own history. No one, Mr. Chairman, who comes from a constituency like mine where people still maintain that sense of independence, their pride in their roots and in their history, would want to be part of Ottawa imposing a central vision upon the rest of the country in terms of trying to level the rest of the country to meet one standard and one standard alone imposed by Ottawa.

That is not desirable in a country such as this, it would not be desirable in my constituency and it is not desirable in Canada.

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Mr. Chairman, as Mr. Crombie pointed out, what we are talking about when we talk about checkerboarding, we are talking about the Canada in which we grew up. We are talking about the traditions and history of this country and I think, Mr. Chairman, that any of us, any of us who have a pride in this country, any of us who understands our history, would have to recognize that the only way in which this country can remain strong is if we have the strength to allow diversity, if we allow people to live their own lives, if we do not impose a rigid conformity from the centre. That is what the Victoria formula does and that is why I believe, Mr. Chairman, that Canadians would be best served by the Vancouver consensus.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Perrin Beatty.

I see that honourable Senator Austin has a point of order and I have Mr. Robinson, I think, who would like to ask a question.

So I would like to invite first Mr. Robinson to put a question.

Mr. Robinson: Thank you, Mr. Chairman.

I listened with interest to my good friend Mr. Beatty on the Vancouver consensus and if I may I just have two questions for Mr. Beatty.

My first question is this, Mr. Beatty, with respect to the question of the Quebec veto your colleague from Vancouver south has indicated, and I certainly share his concern, that there should be some way of recognizing what he referred to as the special and particular concerns of Quebec in the proposed amending formula.

How do you suggest that your amending formula, the Vancouver consensus, in any way recognizes the special and particular concerns of the Province of Quebec.

Mr. Beatty: Well, Mr. Robinson, the most obvious way that it recognizes it is it says that the other nine provinces will not impose standards upon Quebec that they will be forced into, and this is precisely the advantage in the opting in provision that there is in the Vancouver consensus. It says that you can have flexibility, that you need not have sort of rigid conformity applying to people in all parts of the country.

I would argue, though, that just as the people in Quebec have a special relationship to Canada, they have their own culture, their own traditions and their own way of life to maintain, that we in Ontario also have a special culture, a special relationship with the rest of the country and a right not to have other people’s wills forced upon us, that we also have the right within the context, within the broad context of a strong Canada, we have the right in Ontario to maintain our own identity and to choose where it is desirable for people in our province to go their own way, to have standards and legislation which are different from those in other parts of the country.

So I am not asking that Quebec should have some special right that other people do not have, what I am saying is that it is wrong, whether it be Quebec or anyone else, to have

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outsiders wills forced or imposed upon them through using the mechanism of Ottawa. It is not desirable in those areas which the fathers of confederation in their wisdom gave to the provinces because they felt those were areas best handled by the level of government closest to the people.

Mr. Robinson: Thank you, Mr. Beatty.

Of course you recognize that in pointing to the opting out provisions as they affect Quebec that is exactly the same as the opting out provisions as they affect all of the other provinces, so Quebec is just a province like all the rest in the Vancouver formula.

Mr. Beatty: No, the argument that is being made by most of your friends on the government side has been that you would get a checkerboard, consequently in any particular area you would find a different pattern developing, so that their whole argument is not that there was a rigid standardization in the Vancouver consensus, but rather that it allowed the checkerboard pattern, that it allowed the different pattern on different issues of provinces choosing either to participate or not to participate.

Mr. Robinson: That is my final question if I may, Mr. Chairman, with respect to this question of checkerboard, and it is this:

You have talked, Mr. Beatty, about the traditions and history of Canada. Mr. Crombie also spoke very eloquently about the traditions and history of Canada in a number of respects, that there were differences unquestionably province to province, but we are talking about a break with tradition in the history of Canada when we talk about an entrenched charter of rights.

I suggest to you, Mr. Beatty, and also to Mr. Crombie, that one cannot go back to tradition and history in talking about a checkerboard effect with the bill of rights.

Now, are you aware, can you point, Mr. Beatty, to any precedent anywhere in the world of a jurisdiction in which there is a bill of rights which may conceivably only apply to one state or one jurisdiction within that overall federal state, because I suggest, Mr. Beatty, that in all jurisdictions which have a bill of rights, all federal jurisdictions which have a bill of rights affecting all of the people, that those apply right across the country so I would ask you whether you are aware of any jurisdiction which permits this and then, secondly, in a follow-up question on that, how can you defend a position in which certain of these rights are held by the people of one province and not another if these rights are supposed to be fundamental and basic rights of all Canadians?

The Joint Chairman (Mr. Joyal): That would be your last question, Mr. Robinson.

Mr. Beatty: I was rather enjoying it and I would be glad to take another round, but I would refer Mr. Robinson to Section 92 and Section 94 of the British North America Act.

Now, Mr. Robinson believes that we must make a break with tradition in Canada but there is a provision in Section 94 for the creation of uniformity of laws in Ontario and New Brunswick and Nova Scotia, and it lets out, of course, Quebec.

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So look at the British North America Act if you are concerned about this.

I am perplexed by the argument, Mr. Chairman, that Mr. Robinson made that because you are breaking with tradition in one aspect that you are doing away with the concept of the supremacy of Parliament with regard to some rights which will be included in the charter, that you must dispense in all instances with history and tradition, because I think, Mr. Chairman, that it simply does not accord with the Canadian experience.

Our experience has been one of evolution, there has always been change in Canada. There has been constitutional change. MacDonald never meant that the British North America Act should be cast in stone or should be incapable of reform or improvement, but he expected that change would be made on the basis of an evolution. That is what we are talking about here, that evolution should take place, but that we should not deny our roots, we should not deny our traditions, our heritage, we should not deny our identity as a people.

This is why I say that it is essential that we recognize the Canadian experience, Mr. Chairman, has been different from those in other jurisdictions, most notably in the United States. We need only look at our treatment of minorities in Canada where we have deliberately consciously opted for a mosaic pattern as opposed to the so-called melting pot which tried to standardize or to homogenize society in the United States.

We believe that it is essential that there should be diversity in our country.

And Mr. Robinson’s final second question, if I remember it his second question, had to do with how can we defend having different standards as they relate to a charter. Well, Mr. Chairman, I simply refer Mr. Robinson to the fact that under the British North America Act the Fathers of Confederation said that in these areas the provinces should have the right to legislate. Section 92, (13), property and civil rights in the province belong to the province.

What we are saying is that yes, there are certain goals that we should be setting for Canadians, that we believe in Ottawa are desirable and should be included in the constitution. We hope that other jurisdictions will agree with us but that we do not believe, we are not so arrogant that we believe because we support a particular principle that we have either the right or the responsibility to impose it on other people against their will. It is a denial of federalism if we choose to do that and I believe the federal system has served Canada well.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Perrin Beatty.

Before I invite Mr. Hawkes, with unanimous consent I would like to invite honourable Senator Austin on a point of order.

Senator Austin: Mr. Chairman, I would like to speak to the question of unanimous consent and say that I recall the

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argument that Mr. Epp or Mr. McGrath made with respect to the number of speakers that the New Democratic Party were seeking to have or might be seeking to have by replacing speakers. They have two members and they are entitled to talk twice. The Conservative party has spoken fully in terms of their membership, or so I have had it reported to me. I have no objection to extending the courtesy to Mr. Hawkes of speaking for a few minutes but there have been very long and extensive speeches on this subject all day and I would hope that the understanding is correct that Mr. Hawkes could proceed for five or six or seven minutes and then Mr. Epp would conclude on the amendment.

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

Mr. Epp: I believe Senator Austin is very fair in that proposal. I just wanted to mention just for the record, I believe there are two of our members who have not spoken but that is fine, and as to the offer that Senator Austin has made, that is made graciously and we accept it.

The Joint Chairman (Mr. Joyal): So with that provision, then, I would like to invite Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Chairman, and I will attempt to keep it less than five if I can.

In the Minister of Justice’s opening remarks he mentioned the Province of Alberta and it has been mentioned a couple of times since and I think because it has eight per cent of the population and because its feelings run so deep it is perhaps important that someone from that province speak at least for five minutes in this debate.

Part of the debate has centred on checkerboard and nobody has talked about the checkerboard effect of the Victoria formula itself. It is a checkerboard of rights, and for provinces that want a particular amendment under Victoria we have first-class provinces in the sense of Quebec and Ontario, we have second-class provinces in terms of British Columbia and the four in the Atlantic region, third-class in terms of Alberta, and fourth-class in terms of Saskatchewan and Manitoba which the New Democratic Party has half the membership.

If you want to talk about a province or provinces that would like to block an amendment, then again you have first-class provinces in Ontario and Quebec, you have a second-class province, only one this time, in terms of British Columbia, you have a third-class province in terms of Alberta, you have two fourth-class provinces in terms of Saskatchewan and Manitoba, and you have four fifth-class provinces in terms of the four provinces in the Atlantic region.

There is a checkerboard built into Victoria, that checkerboard in terms of future amendments is absent from the Vancouver consensus. All provinces are essentially treated equally in the Vancouver consensus and right there, Mr. Chairman, right there, I think you will find the nub of the philosophical issue which is of importance to a very large majority of the people that live in the Province of Alberta.

When you not only consider the rights of provincial governments but think in terms of the way in which the federal

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government is constituted, you sec that that first-class status which accrues to Ontario and Quebec extended and reified in the composition of the House of Commons itself, the institution in which I serve, because of population is dominated by representatives from those same two first-class provinces.

If, as has been said on many occasions in this forum, the purpose of the constitution is at least in large measure to protect the weak against the excesses of the strong, then what Victoria does is run exactly counter to that basic philosophical underpinning.

We have talked today about two years to reach a belter formula but nobody has said clearly that during that two years those first-class provinces in this same Parliament, without an election, constituted with its same membership, will have a complete and utter veto in that two year period.

I was particularly gratified I think for the first time today to hear Senator Austin with some sense of emotion talk about the future of Canada and the need for some change in the institutional arrangements, and I concur; in the province in which I reside put forward a paper as early as 1978 and it is part of an appended record to our proceedings from December, that paper was entitled “Harmony and Diversity’’ and it spoke to at least one province’s very deep perception of the strengthening of this nation was involved in some change in its institutional arrangements that would reify and strengthen the legitimacy of the federal system, and through that mechanism provide the legitimacy which gives strength to a central government.

And Senator Austin said that in stage two, we will get to that and we must hurry up and we must get to that but if this Committee puts forward to the Parliament of Canada and the Senate of Canada the Victoria amending formula that provides those vetoes which are inherent in it, then I ask Senator Austin across this table what there is that is going on in his mind that makes him believe that those provinces which have first-class status can go to their electorate and give up part of that power which will be required to provide us with a changed set of institutional arrangements which will provide the legitimacy to this federation.

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Maybe at some point he will give me a quick answer. But let me conclude so that I get my five minutes’ worth.

I have had the pattern of a public meeting once a month since I was elected some 19 or 20 months ago. Since this constitutional proposal was laid on the table, followed by the budget, the atmosphere in those public meetings has so changed that it is almost unrecognizable.

Each month, about 80 per cent of the people would come out and exchange ideas and are new and different. The one characteristic that they have which was totally absent prior to October is a deep sense of anger and a deep sense of resolve.

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I am afraid, Mr. Chairman—and I have expressed it to the Minister of Justice before—that if the government and members opposite proceed with this particular amending formula, that the people in my province, and I suspect of my region, will ultimately be backed to the wall to the point where they just say “no”. I am not sure what “no” means; but I am sure that they are determined not to be part of a partnership in which the deck is loaded in this fashion.

I would urge the government members to seriously consider the damage they would do to our will to survive as a nation when they put forward and insist on a proposal which has so little acceptance, when in fact, one with a great deal of acceptance is available and could serve just as well on an interim basis.

I thank members of the Committee for giving me this opportunity.

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

I would like, then, to invite the honourable Jake Epp to conclude on the proposed amendment.

The honourable Jake Epp.

Mr. Epp: Mr. Chairman, we have had a very full debate on the amending formula that our party has put forward today.

There is a matter I should like to deal with, before I go into the points which have been raised. Obviously, I will not respond to every point which was made during the course of the day.

But you will recall, Mr. Chairman, that we circulated amendments to the British bill. There are a number of members around the table who are possibly not aware of the effect of that amendment or even of the British bill itself and what form it would take and what effect it would have.

Our draft to the British bill is related—and I would like to point out very clearly—to our proposal that the constitutional act that we are going to have or later will be passed by this Committee, I take it; that it would be affected by the process before the amending formula comes into effect.

In other words, what we are referring to only is the amending process, not every clause.

There are some people who felt that there were various clauses which could be affected by the British bill. That is not the case.

I wanted to make that point very clearly that what we are talking about when we present that to the British bill is that it is relating directly to the manner in which an amending formula could in fact find agreement across the country.

Now, Mr. Chairman, in respect to what has been said today, let us look first of all, very briefly, at the Victoria proposal.

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I asked the Minister how many provinces today, right now, are absolutely opposed to Vancouver and absolutely committed to Victoria?

If he looks at that proposition he would come up with very few allies.

In fact, the only ally he will come up with—the only unequivocal ally is the Prime Minister!

He must also recognize that the Victoria formula, quoting a gentleman in the House of Commons, is a formula “that has been and is no more.” It is not a formula which enjoys support today.

Additionally, it would be interesting, Mr. Minister, to follow up on the proposal that was made by Mr. Mackasey, and I am willing to accept the proposal; and Mr. Mackasey, coming from where he does, has given us I think a proposal with a certain amount of risk on both sides. But I accept the risk.

His proposal, as I understood it, was this, and I am willing to accept it; that is, after the Committee has finished its report and before the report is debated in Parliament, that the two projects—the government’s amending formula known as the Victoria, or our amending formula known as the Vancouver, that the Committee Chairman respond to the provinces and ask them to respond to the Committee as to which formula they want.

I believe that was the gist of Mr. Mackasey’s proposal.

Mr. Mackasey: You believe wrongly, but I will interrupt in a minute or two.

Mr. Epp: Do not tell me you are changing your mind!

I am saying to Mr. Mackasey that Victoria does not enjoy the support that he feels it does.

Mr. Chairman, the only way you will avoid a checkerboard country, if in fact you want to avoid it, if in fact you feel it is wrong to have some variations between the regions and the provinces—and I have never been one to feel that variation is detrimental to the country; because then you could have had a unitary state, and then you would not need provinces.

But the only way in which you can avoid a checkerboard country in a federal state is unanimity. It is the only formula which will avoid the checkerboard approach.

The government has said unanimity does not work. It seems to me some place in my mind I have heard something like 53 years by someone on that side, saying that for 53 years we have tried unanimity and it has not worked. And we say unanimity is a formula that cannot work.

The only way you will avoid the checkerboard approach is through unanimity.

Mr. Chairman, Mr. Robinson speaks of the charter; the problems of opting out. Well, I would like to remind Mr. Robinson and members of the government of 1978 when there was a bill known as Bill C-60 at the time, a bill which had a charter of rights, a bill presented by the government with an opting in in the charter. Two years ago!

Mr. Robinson: Shame!

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Mr. Epp: Mr. Robinson says shame. Has he checked how they voted on Bill C-60?

Mr. Chairman, the only reason Bill C-60 was challenged was not because of the checkerboard; not because of the charter; but because of the Senate, and that the federal government did not have the ability unilaterally to change that federal institution.

It was not the Charter. It was not opting in. It was the Senate.

So, when you talk about the checkerboard approach, you gentlemen of the Liberal party or you, the honourable Mr. Robinson of the new Democratic Party, your memories are very short—very short indeed! When you start defending your great proposal, that is like a dinosaur, it is dead a long time and yet you are trying to revive it now!

I say to you that if you do not allow for that diversity in the country, then you will have some of the effects of which Mr. Hawkes has spoken.

I will quote this telegram which I picked out at random—and I will not read the whole thing, and it is from a citizen. Speaking of the federal government she said:

This action is very divisive and has potentially very long lasting effects on our federation.

An hon. Member: And that is from your mother!

Mr. Epp: If it was from my mother I would have told you so.

What I am saying, Mr. Chairman, is this: there are many Canadians—what we may call ordinary Canadians who may not know everything about the constitution, who may not have had the opportunity to spend the time we have had on this; but who know that what is happening is divisive to their country, and they do not like it.

Mr. Chairman, what about the different classes of provinces? Mr. Chairman, you will never convince a Manitoban who has studied the proposal or a person from Saskatchewan that they are even equal—even equal—within western Canada in terms of the amending formula; because they are not.

And if they are not even regarded as equal within the region that they live, how are they to be regarded as equals in the country in which they form a part?

Because the whole Victoria formula is based on an inequitable position, and no matter how you try to change it you cannot change the inequity on which it is based.

Mr. Mackasey speaks about the two year illusion. I have heard Mr. Mackasey speak about two years; it has almost taken him two years to say it!

But the fact remains that Mr. Mackasey, with all respect, that is more an illusion than a fact, because what you do not know about those two years is the controversy which would be underlying it and starting out with those two years; the dissension, the legal battles which might be joined and started.

You know of none of that; nor do I.

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But what you and I do know is that the federal government is intending to hold a hammer over the provinces during those two years, and that hammer is this: “Gentlemen, you had better come up with an amending formula that enjoys 80 per cent or we are going to have our amending formula or some other amending formula that has not even seen the light of day.”

You have so many options, so many ins and outs, nobody can trust it! Absolutely nobody can trust it!

But you have the hammer as a federal government and you totally deny and reject and ignore the fact that it is a federation.

You say you have these two years. Mr. Mackasey, that is an illusion.

Mr. Chairman, in a federation—if you study the federations of the world and their amending formulae, one thing becomes absolutely clear very quickly, and that is this: in an amending formula you have to respect two components: that is population and political entities.

If you take a look at those amending formulas, you will find a balance between those two.

Let me use the American example because we are most familiar with that one.

In the Congress and the House of Representatives the weight and power of population is addressed and recognized.

But after that stage it is the political entity, the legitimate entity of the federation that are observed; because you then need the support of the Senate to which every state, large or small, large populations or small populations, send the same number of Senators; and a vote from Rhode Island is equal to a vote from California; because Rhode Island has the same legal entity as does California.

And the last stage: the support of the states—the three quarters of the state.

You would, again, use the argument that if the federation is to survive, the partners of the federation must be asked. Now what is the formula that the government asks? At every stage you use population in the House of Commons which we could compare to the House of Representatives; in the Senate, and I think honourable gentlemen and ladies from the other place would agree with me that while we use the “area” representation, even that has been muddied to a great degree, because it is based to some degree on population as well, rather than the pure area representation using it in the purely definitive terms.

Then you go to the provinces. And what do you do? You again weight it on population and at no stage in your amending formula do you regard and recognize the partnership.

And you are now saying to me, “Look we will not regard the partnership, but the partnership should accept the formula—unilaterally imposed!” It would never have happened in 1867

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with the Fathers of Confederation! Never! And it will not be accepted in 1981, I would suggest.

And not only from the premiers—and I know some of you like to put forward the premiers as bogeymen, ogres; but it is not the premiers; the legislatures, or parties opposed that kind of system.

Mr. Chairman, if the government insists on giving certain provinces, writing in a veto—I am not opposed to where the support of a province is needed because they have a certain population. That is fine. I have no difficulty with that. But I have difficulty, if you are going to write into a constitution that a province that once has enjoyed 25 per cent population of a country and no matter what its population becomes shall forever have that veto—I repeat shall forever have that veto—and other provinces, who could even be more populous—I take British Columbia for example, and who could continue their rate of growth for the next 100 years, all other demographic factors being the same, would still not enjoy that kind of veto. I ask Senator Austin, how can you accept that, from British Columbia? As a British Columbian, that you say to your people in British Columbia, “That is fine, that is good, that is all right”; and in fact you could have to be forced to have a population twice the size of another province and not enjoy the veto, or the approval needed.

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So I say to you, Mr. Chairman, there are so many arguments one can make on the Victoria formula that for anyone to think and agree that it would help the federation, that it would strengthen and bind together what people feel for the country, the facts and realities in Canada do not bear it out. That is why I say to you that a formula which at least, although having flaws, a formula which recognizes the equality of the partnership in itself, has sufficient merit to warrant its approval.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Jake Epp. I understand that there will be a recorded vote on that proposed amendment to Clause 41.

Amendment negatived. Yeas, 8; Nays, 15.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to take the next amendment in relation with Clause 41. It is the amendment that is numbered G-38, Clause 41, page 12.

I repeat the number, G-38, Clause 41, page 12.

I would like to invite Mr. Ron Irwin to move the amendment. If some honourable members do not have a copy of the amendment, we will make sure that the Clerk will extend one to them.

Mr. Irwin: Thank you, Mr. Chairman. I wish to move that Clause 41 of the proposed constitution act, 1980 be amended by striking out lines 21 to 31 on page 12 and substituting the following:

(ii) two or more of the Atlantic provinces, and

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(iii) two or more of the Western provinces that have in the aggregate, according to the then latest general census, a population of at least 50 per cent of the population of all of the western provinces.

[French]

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

Mr. Corbin: I move:

that Clause 41 of the proposed constitution act, 1980 be amended by striking out lines 21 to 31 on page 12 and substituting the following:

(ii) two or more of the Atlantic provinces, and

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

[English]

The Honourable Jake Epp.

Mr. Epp: Mr. Chairman, just one statement. We accept the government amendment on removing the 50 per cent aggregate in Atlantic Canada. That puts Prince Edward Island back into Confederation, of which they were taken out originally.

The second part, and by that vote supporting it, Mr. Chairman, I want to indicate to you the second part as a Western Canadian as I have said earlier today and I will not belabour the point, there is just no way that I can see in any way that you are giving equity to Western Canada. We will support the view of (ii); (iii) is one that to me is absolutely abhorrent, but it is on that basis that we will base our vote.

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

Mr. Mackasey: One question to the Minister to follow up on the statement he made here about a month ago when we were discussing the difference between (ii) and (iii), the formula in the Atlantic provinces and the formula in the western provinces.

I think, Mr. Minister, at the time that you said that if a request came in from the four western provinces to remove the 50 per cent population, you would agree to that amendment. Was such a request made by one or more of the western premiers.

[Page 110]

Mr. Chrétien: Not one communication from any premier of the western provinces.

Mr. Mackasey: Am I right to presume then that the four western premiers are satisfied with this formula and do not…

Some hon. Members: Oh, oh.

Mr. Mackasey: Mr. Chairman, my question is to the Minister. I would like to make my question. Mr. Chairman, I would like to finish my question to the Minister, if I am allowed. Am I right in saying that you have had no request from one or more of the western premiers to amend this to make it conform with the request that came in from the Atlantic provinces.

Mr. Chrétien: In fact, for the change that we are accepting tonight on the Atlantic provinces, this change has been approved by the four premiers of the Atlantic provinces. I made the same offer to the western provinces to change if they wanted and I have not received any request.

Mr. Mackasey: Am I wrong in presuming that they are satisfied with it, since they did not ask to amend it.

Mr. Chrétien: I do not pass a judgment on their views. I just say that they have not communicated with me to make any change; but we call this amendment the “Henderson Amendment” because the member for Egmont, George Henderson, is not here tonight, he apologized, but he was busy in his provincial riding that the Liberals won by 300 votes, tonight. I would like to congratulate Mr. Henderson for his good work.

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

Mr. Nystrom: I was going to speak in favour of the amendment. Mr. Minister, was that the purpose of the amendment?

Mr. Chrétien: The judgment of Mr. Henderson has been approved by the four premiers of his area.

Mr. Nystrom: That was not a serious question.

Mr. Chrétien: I had hoped that your views would have had the same effect in Western Canada, but they did not.

Mr. Nystrom: To get serious for a second, Mr. Chairman, I certainly support the amendment that makes Prince Edward Island a province once again. I do not know of any state in any federation in the world where one of its entities is not a part of the amending formula. It was pointed out earlier that of course Rhode Island counts in United States like New York counts when it comes to the Senators and the Senate. Rhode Island counts like California counts, and one of the great injustices of the amending formula as proposed by the government back on October 2 was that Prince Edward Island did not count; and no matter what combination was used they did not count. Of course they counted in the referendum if you went to a referendum under Clause 42; but again the population is so tiny that their weight there was not that much, and I would hope that…

[Page 111]

Mr. Chrétien: I hope you will not give away that right in the amendment which you are planning to propose. It is exactly what you will achieve.

Mr. Nystrom: I think we will debate that when we get to our amendment, Mr. Chairman. What I am saying is we endorse this, that Prince Edward Island becomes a province again.

The Joint Chairman (Mr. Joyal): Honourable James McGrath, followed by Mr. Robinson.

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

Mr. Chairman, on behalf of the members of my caucus, and Prince Edward Island, and indeed on behalf of the government and people of Prince Edward Island, I want to thank the government for its wisdom in accepting this amendment. It is all very well, and I do not want in any way to detract from the fact that Mr. Henderson who is not here tonight was the mover of the amendment, but I should point out to the Committee and for the record, Mr. Chairman, that it was Mr. Gass and Mr. McMillan from Prince Edward Island who brought this very forcibly to the attention of the government during debate stage on the resolution; and whilst Mr. Henderson can get some satisfaction from having the government accepting his amendment, I do not want in any way to suggest that he should get all the credit because it was my two colleagues from Prince Edward Island and indeed, the Premier of Prince Edward Island, appearing before this Committee who first brought this to the attention of the Committee and the House.

Mr. Chairman, having said that, I just want to re-echo the dilemma we find ourselves in because while we are supporting the so-called Henderson or Prince Edward Island amendment, the provisions of Part I still remain reprehensible, unacceptable, because now what you are doing by correcting the injustice that was originally intended in terms of the disadvantage that Prince Edward Island was being placed at, you are now of course creating three levels of provinces in terms of the two central provinces having the veto with the population formula being eliminated in the four Atlantic provinces and of course the population formula remaining in the four western provinces; so now we have three classes of provinces and it is a kind of a Catch 22 for us because the amendment, while we welcome it on behalf of Prince Edward Island, makes the section even more unacceptable.

Having said that, Mr. Chairman, we have a responsibility to the people and the government of Prince Edward Island, who made the case very well here, to accept the amendment.

Mr. Epp: Mr. Chairman, I would ask that for calling of the vote that you divide the vote on the basis as it is determined in the government’s subamendment and call the vote separately.

The Joint Chairman (Mr. Joyal): I do not see any opposition around the table on that request, as was agreed earlier on some other amendments I remember, some amendments by some other honourable members, and I remember especially Clause 15 there have been many divisions of different para-

[Page 112]

graphs. In that respect unless I have a clear indication from honourable members…

Mr. Mackasey: I would like to know why, Mr. Chairman, frankly, because in voting for one you are automatically voting for two.

Senator Roblin: I would be glad to give some brief reply, if the Committee would allow me to do so.

The situation that we are confronted with now is that we are providing that two provinces in the Atlantic sector can exercise the veto, if you want to put it that way. I have no objection to the justice that has been done to Prince Edward Island, that is fine, but what it turns out to mean is that 2.9 per cent of the population of Canada located in that part of the country can have a veto on the constitution; but when you come to western Canada which has more population in one province of western Canada than all the people in the Maritime provinces then a completely different set of rules apply; and it takes many, many more Canadians in western Canada to have their voice heard in the centre of our country on matters of this kind than it does in the Atlantic provinces.

I am in favour of what is being done for the Atlantic provinces. I am not being a dog in a manger about that, because I am glad that Prince Edward Island has had this recognition; it deserves it. I am merely pointing out the fundamental inequity of the situation which is now being presented to the people of western Canada and that seems to me a good reason to have a vote, and I am prepared to vote separately, I am prepared to vote separately in favour of Prince Edward Island, but I am certainly not prepared to vote in favour of what is being done to western Canada because there is not a western Canadian that will put up with it.

The Joint Chairman (Mr. Joyal): Mr. Robinson followed by honourable John Fraser. Mr. Robinson. Order, please. Mr. Robinson.

Mr. Robinson: Mr. Chairman…

The Joint Chairman (Mr. Joyal): The Chair has already called Mr. Robinson. I am sorry, honourable Senator Roblin. I recognized you earlier. I can take your name down for another round but at this point I have called Mr. Robinson.

Senator Roblin: You are very fair, I have no complaints.

Mr. Robinson: Mr. Chairman, thank you very much. I must say I am somewhat confused by the position that my friends in the Conservative Party have just taken. I recall earlier that there was to be an amendment moved, Mr. Epp had indicated that there was to be an amendment moved which would make the position of the western provinces the same as that of the Atlantic provinces and certainly as a British Columbia member, Mr. Chairman, I would be very interested to hear the rationale for this. I know that some of my colleagues from the British Columbia Conservative Party expressed some concerns at the time it was suggested that this amendment would be moved.

Mr. Epp, you have indicated that you have found subparagraph (iii) in your words abhorrent. I wonder whether you are prepared to go further and to move an amendment which

[Page 113]

would translate your concerns about this particular provision into legislative form.

Mr. Epp: Mr. Robinson, I would be glad to answer that. I am always surprised at your surprise.

I said I believe at three different times today that because the Victoria formula as proposed by the government is based on a principle of inequity, no matter how you change it the principle of inequity remains, and if I remove the 50 per cent for the provinces of Saskatchewan and Manitoba we would on the same equal footing as the Atlantic provinces, true; but by the very action of that amendment then I would be denigrating the additional populations of either British Columbia or Alberta, that is why. It just is not right from them and I am not going to be party to an amending formula or an amendment which is unfair to one group of people to the advantage of another.

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

Mr. Robinson: If I can just get clarification then, Mr. Chairman, Mr. Epp is saying then that the proposal would be even more inequitable if the 50 per cent requirement were to be removed from the western provinces.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson. I have honourable John Fraser on my list. Honourable John Fraser.

Mr. Fraser: Just a very brief comment, Mr. Chairman. There is no way in the world I can vote for subparagraph (iii). To answer Mr. Robinson, we have already moved an amendment which would have corrected the inequity of which we are speaking, and if Mr. Robinson wants to vote to place the western provinces in a position where they have to have an aggregate of population as opposed to the situation in the maritimes, let him do so and let him explain it back home in his backyard and mine.

I of course support the amendment which brings Prince Edward Island back into the community of Canadian provinces.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable John Fraser. The Chair understands that honourable members are ready for the question on subparagraph (ii) and (iii) but provided that they are different votes. Mr. Irwin.

Mr. Irwin: Mr. Chairman, we have a technical problem that l would ask the Deputy Minister to explain to the Chair, on the wording.

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The Joint Chairman (Mr. Joyal): After consultation with the Deputy Minister for Justice there is a correction to be made to the French text or the French version so I would like to invite honourable members to take the French version.

[French]

The honourable members may have noticed that the French text contains a sub-paragraph (iii) in paragraph b).

[Page 114]

This subparagraph should have been preceded by subparagraph (ii) which has its counterpart in the English version and if honourable members look at the English version they will see that there are two subparagraphs.

So, I would like to add in the French version a subparagraph (ii) which would read as follows: “au moins deux des provinces de l’Atlantique”. So we would have a perfect counterpart for the two paragraphs.

Also, as the honourable members of the committee did agree to have different votes for each of the subparagraphs we should then amend the lines on which there are amendments.

[English]

I would like then to invite honourable members to correct the description of the lines on which each of those two subparagraphs appear.

So I will read the correction in each of the official languages text, the first one, the English one should read, and the Chair will call the vote on that very amendment:

That Clause 41 of the proposed constitution act, 1980 be amended by striking out lines 21 to 25 on page 12 and substituting the following:

(ii) two or more of the Atlantic provinces and,

[French]

The French text should read:

Que l’article 41 du projet de Loi constitutionnelle de 1980 soit modifié par

a) substitution, à la ligne 9, page 12, de ce qui suit: «autorisée à la fois:»
b) substitution, aux lignes 21 à 26, page 12, de ce qui suit: (ii) au moins deux des provinces de l’Atlantique.»

[English]

Amendment agreed to.

Mr. Epp: Can we have a recorded vote on the second part?

The Joint Chairman (Mr. Joyal): Yes, so far as the second part is concerned a recorded vote is requested.

Amendment agreed to: yeas, 13; nays, 8.

Mr. Nystrom: Mr. Chairman, on a point of order, did you say eight nays?

The Joint Chairman (Mr. Joyal): Yes.

Mr. Nystrom: I think there are eight Conservative members here and if the Clerk would recalculate his numbers I think there would be nine nays. I voted nay as well.

The Joint Chairman (Mr. Joyal): Yes, the Chairman has consulted with both Clerks on that and both Clerks have advised the Chair that they did not hear the answer to the call from Mr. McGrath.

Mr. McGrath: I am sorry, Mr. Chairman, I did say no quite clearly.

The Joint Chairman (Mr. Joyal): So then if it is with the consent of honourable members the record will be corrected.

[French]

Some hon. Members: Agreed.

[Page 115]

Amendment agreed to: yeas, 13; nays, 9.

Clause 41 as amended agreed to.

On Clause 42—Amendment authorized by referendum.

The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to move on Clause 42. And on Clause 42 there has been a certain number of amendments. The first one is an amendment that calls for the deletion of that very clause and the Chair will deal with that amendment as usual by inviting honourable members who support such amendment to vote yeas when the Chair calls a vote on that clause.

So the next amendment in relation to that clause is the amendment identified N-36, Clause 42, page 13.

[French]

The next amendment is identified as N-36, Clause 42, page 13.

[English]

If some of the honourable members do not have a copy of the proposed amendment the Chair will make sure they get a copy from our Clerk.

I repeat the number, N-36, Clause 42, page 13, and it is an amendment moved on behalf of the New Democratic Party and I would like to invite Mr. Nystrom to move the amendment in the usual way.

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

I move that Clause 42 of the proposed constitution act, 1980 be amended by striking out line 12 on page 13 and substituting the following:

Clause 41(1), and

[French]

Motion. Il est proposé

Que le projet de Loi constitutionnelle de 1980 soit modifié par

a) substitution, à la ligne 11, page 13, de ce qui suit:

«41(1);

c) à la majorité des votants de l’Ontario, du Québec, des provinces de l’Atlantique et des provinces de l’Ouest.»

b) par suppression, corrélativement, à la ligne 4, des mots «d’une part» et, à la ligne 5, des mots «d’autre part».

Mr. Chairman,

[English]

if I can just say a few words in motivating the amendment, this is a discussion we have had a few times before at the Committee and I think it is an important one because the way the present Clause 42 is written, if we indeed have a national referendum on the constitution, we need two things: the first thing we need is a national majority of Canadians, in other words 50 per cent plus one of Canadians as a whole; we also need what is called a regional majority of Canadians but when you look very closely at it, it is a regional majority only in Ontario and Quebec and not necessarily a regional majority in the Atlantic provinces and the western provinces.

[Page 116]

For example, if you look at the Atlantic provinces we find that in order for a vote to carry in a referendum we need a majority in only two of the four Atlantic provinces and it is quite conceivable that you could have the referendum carry by a small margin in two of the provinces and be defeated by a large margin in the other two provinces and have more people voting no than yes and the yes still carries.

This is particularly the case if the people in Prince Edward Island and Newfoundland vote yes because their combined population is only about 700 thousand.

Senator Roblin: 2.95 per cent.

Mr. Nystrom: 2.95 per cent, Senator Roblin tells me.

Well, the combined population of New Brunswick and Nova Scotia is roughly twice that of Prince Edward Island and Newfoundland, and the referendum can carry very marginally or even substantially in Prince Edward Island and Newfoundland and therefore it is carried in two of the four Atlantic provinces, but it can be defeated substantially in Nova Scotia and New Brunswick, which means that you add up the yesses and noes in Atlantic Canada you could have twice as many people voting no as voting yes, but the yes still wins; while in Ontario you have to have a majority before the yes wins.

So I think there is a blatant discrimination here, Mr. Chairman, and the same thing is true but to a less extreme extent in Western Canada because in Western Canada, if you read Clause 42, you find out that you need a majority in two or more of the western provinces that have in the aggregate, according to the latest census, at least 50 per cent of the population of all of the West.

And if you look at the western population now, you find that in order to carry, an amendment through referendum would have to carry in British Columbia plus one of the prairie provinces, or in all three of the prairie provinces, and it is very conceivable, again to use the arithmetic and I will not go into details but these have been worked out by a number of people and presented before in this Committee, that you could have a referendum carry marginally in the province of British Columbia and Manitoba, for example, and be defeated overwhelmingly in Saskatchewan and Alberta.

Let us say, hypothetically, the question is some constitutional change in oil and gas in this country, or oil, let us say oil. And there is a lot of oil in Saskatchewan and Alberta and the

[Page 117]

people in those two provinces could say “no” overwhelmingly, while in British Columbia and Manitoba they could say “yes” by a narrow margin, and once again we could have the majority of people in Western Canada saying no, but the yes will still win.

You may say to me that this probably will not happen, but I want to point out to the Committee that if it does happen, if it ever happens in the west, then we are in serious trouble because it will set off a big explosion in this country and will be a real threat to the unity of Canada.

The other thing that I find very, very dangerous is when you have these basic inequities in a constitution, enshrined in the constitution, if people in the west will sit back and they will say: look, you have to have a majority in Quebec, you have to have a majority in Ontario, but in the west we can still vote “no” and we still lose, that is a basic inequity and it is that type of thing that would probably never happen, probably never happen but if you have it in the constitution people say: aha, that is discrimination against us, it is wrong, it treats us differently than Quebec, treats us differently than Ontario, and I think that seeds disunity in our country instead of bringing Canada together.

Now, what the Minister of Justice is going to say to me is that: Well, I recognize the provinces in the west and in the east, that we need to have it carried in at least two provinces in the west and in the east, but what my amendment does not do, Mr. Chairman, it does not take away the necessity of having two provinces, it says, in addition to having two Atlantic provinces, in addition to having two western provinces, we have a regional majority in the west and a regional majority in the east; so that in Quebec, all Québécois have to approve, it is only one province so all the region approves; in Ontario all the Ontarioians have to approve, it is one region so all Ontarioians have to approve; and in the Atlantic region we have four provinces, well, at least the residents of two provinces have to approve, but with my amendment the whole region has to approve; and in the west at least two provinces have to approve, though in my amendment the over all region has to approve as well.

Now, I want to in closing say that I think it is a very fair amendment. It does not change anything radically in the constitution but it says to Canadians that if there is a referendum then all Canadians will be treated the same, will be treated fairly, and my perception after being in politics and the House of Commons for almost thirteen years is that the things that divide this country are often not real things, but they are symbols and perceptions that people have, and by enshrining something like this in the constitution, you are going to have people that are very destructive in Canada, like the western separatists, that can go an awful long ways to making people lose faith in their country and it is a small thing, perhaps, but I think symbolically can be very, very large and very, very dangerous.

[Page 118]

So I really plead with the Minister to give serious consideration to accepting this amendment. If he wants more time to think about it then I would suggest that we stand it, but please do not just dismiss it out of hand. Give some thought to it and give some thought to what may happen if this is in and how some people could make very destructive use of this for the future of our country, and if we do have a referendum and, indeed, westerners vote “no” and the “yes” carries or easterners vote “no” and the “yes” carries, then what does that do to the future unity of our country and to the land that we all love so much?

I suggest, Mr. Chairman, it could be very, very dangerous indeed.

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

The honourable Minister of Justice, followed by the honourable James McGrath.

Mr. Chrétien: Mr. Nystrom is asking me to give great consideration to that and I have to tell him it is a problem that I have struggled with for a long time, and again it is the problem of what is the status in all that process of the provinces as institutions?

Of course I realize the mathematics of what you say and that gives me some problem, too, but you just approved a minute ago an amendment that gave to provinces, you said now you recognize Prince Edward Island as a province, at last; you have dropped them from the map and now they have come back on the map. Fine, but what you are proposing is exactly to drop them again in the referendum off the map.

Mr. Nystrom: But they still count.

Mr. Chrétien: Yes, but it is not that, as an institution they will not count any more. What will happen with that type of referendum that we are proposing is if in one area one premier expresses the view in this amending formula, suppose that you have the case of Prince Edward Island because we have decided to restore the situation of Prince Edward Island, but if there is a referendum they will not exist because the numbers are not there at all and they will just disappear again.

Having your argument, that is what led to having Prince Edward Island out in the first proposition, and you convinced me that we have to restore Prince Edward Island as a province with that status as an entity and so on, so now what you are proposing again, if the referendum comes, forget about Prince Edward Island, that is the dilemma; and when we bought your argument we thought that is too bad but let us look at the population and 50 per cent of the Atlantic provinces will do it, but now we drop Prince Edward Island, so we decided to restore it and this majority of the region does not prevail any more because two provinces of the Atlantic provinces. Prince Edward Island and Newfoundland can join now and say no, but that is it.

An hon. Member: They could say yes.

Mr. Chrétien: Yes, but the population is not there, and we say that suppose that they say no and they block everything

[Page 119]

and everyone else agreed in Canada, and it is Prince Edward Island and Newfoundland who disagree, if we accept your amendments we will be over-ruled by the majority so Prince Edward Island can always say that they can never combine with any province in the referendum and win because they are so small in population. So you cannot have it both ways. Either you restore the idea that Prince Edward Island, even if it is a very small population, has to keep their existence, and some have argued that earlier, they say look at the United States, the State of California with 23 million people has exactly the same votes in the Senate as Utah or Rhode Island and whatnot who are very small.

So you are faced with the same problem.

Mr. Nystrom: I wonder, Mr. Minister, maybe you misunderstood the amendment. It does not get rid of the fact that we need two provinces in the Atlantic region; it says in addition to needing two provinces we also need the regional majority, so it does not eliminate Prince Edward Island at all from the referendum amending formula.

Mr. Tobin: It would constitutionalize that Prince Edward Island and Newfoundland could never say yes. What you are saying is they could only be a vehicle to join with somebody else in saying no, but in themselves as two separate provinces they could never say yes.

Mr. Nystrom: No, no.

Mr. Tobin: Of course they could not.

Mr. Nystrom: Sure, they could.

Mr. Tobin: In themselves?

Mr. Nystrom: What I am saying is that there has to be an overall regional majority. Now, if the no is very small in Nova Scotia and New Brunswick…

Mr. Tobin: But you are saying…

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

I am sorry to interrupt you, Mr. Nystrom, but that debate cannot go on because at this end of the table honourable members are entitled to know what is happening at the other end of the table and if that debate continues in that way those honourable members will not have an opportunity to listen to and make up their mind when they have to vote on that amendment, so if you want to intervene on that very motion I will keep your name down on the list, Mr. Tobin, but I had already the honourable James McGrath and the Chair is ready, of course, to invite you in a proper way.

Honourable James McGrath.

Mr. McGrath: Thank you very much, Mr. Chairman, and perhaps I can pick up where the discussion left off because it does seem to me that what the New Democratic Party proposes by this amendment would negate the effects of the last amendment which was accepted by the government. In other words, it would put the two smallest Atlantic provinces in the same disadvantage that Prince Edward Island was in before we accepted the last amendment.

Consequently, Mr. Chairman, I do not know if Mr. Nystrom had a chance to think this thing out or not but it does seem to me that given the fact they do have some constituency

[Page 120]

to look after in the Atlantic provinces, that if they were thinking, I do not know what they were thinking about, perhaps they were thinking about the cool breezes that are blowing in here today from Honolulu, perhaps that is what got them all upset, or the Honolulu formula.

But certainly, Mr. Chairman, this amendment, without reflecting in any way on the principle of Clause 42 which we will address in our own amendment, and we will give the reasons why we cannot support Clause 42, but now we are addressing ourselves to this amendment and this amendment, it seems to me is, from the Atlantic provinces perspective, totally unacceptable.

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I would submit to you from a western perspective as well, that if you consider the testimony that was given before the Committee by Premier Blakeney—and I would have expected Mr. Nystrom to reflect the legitimate concerns expressed here by Premier Blakeney when he said—and I quote from our Proceedings, Issue No. 30:

There must be some measure of reciprocity as between Parliament and the provincial legislatures in their power to initiate a referendum.

The proposed process permits a referendum where provinces fail to agree to a proposal for constitutional change. It does not provide for a referendum in a reverse case.

Now, that to me is a legitimate concern and one which Premier Blakeney rightly brought to the attention of the Committee, and I would have expected that would have been reflected in Mr. Nystrom’s amendment rather than coming forward with one that is totally and absolutely unacceptable to the Atlantic provinces in every way, shape or form.

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

The honourable Mr. Tobin.

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

Mr. Chairman, I accept that Mr. Nystrom is a gentleman who generally around this table has meant well in some of the suggestions he has put forward.

But I would like to suggest to him that he has not thought his own resolution through.

I entirely agree with the remarks of Mr. McGrath. You are saying to us on the one hand that we should accept your amendment because, while, in your words, it would probably never happen that if two provinces voted “yes” in a referendum, that there would not also be a majority vote “yes” anyway.

You say, consider the hypothetical case, where maybe it is possible that Newfoundland and Prince Edward Island would vote “yes” and the other two provinces, Nova Scotia and New Brunswick would vote by a massive majority “no”. You are saying there you would have two provinces voting “yes” and in fact a majority of the people in the region voting “no”.

[Page 121]

Well, if you arc willing to make that hypothetical case, then make the other hypothetical case. If you arc going to deal in hypotheses make the case that it could happen, that the reverse could be true in your motion; that you would deny forever to Newfoundland and Prince Edward Island a say, any kind of significant and real say in the referendum process, because it could also happen that Newfoundland and Prince Edward Island—again being hypothetical, would be voting “yes” to something all the time in great numbers, but the other two provinces would be voting “yes” in even greater numbers; Prince Edward island and Nova Scotia entrenched in the constitution would never have a say in the referendum. You would eliminate it.

I hark back to the point that Mr. Chrétien made; on the one hand, you vote for a resolution which gives to Prince Edward Island an opportunity to participate in the amending procedure of the constitution. You say that is important because of the small population in that area.

On the other hand, you introduce an amendment which, particularly in the case of Prince Edward Island, not so much for Newfoundland, because Newfoundland could possibly join with Nova Scotia in opposition to Prince Edward Island and New Brunswick and still carry the day.

But certainly in Nova Scotia’s case, you would forever entrench in the constitution that they would be irrelevant, totally and completely to the referendum process.

So, it is not acceptable, Mr. Nystrom. I really say to you that I do not believe you have thought this matter through. It would be interesting to hear your further comments. But I certainly cannot vote for it.

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

Before I invite Mr. Nystrom to conclude, I would like to invite the honourable Senator Roblin.

Senator Roblin: Mr. Chairman, Mr. Tobin has just made Manitoba’s case, because now you know how we feel. That is exactly the position in which our province has been placed by this iniquitous referendum solution.

It is something which Manitoba will really find very difficult to accept.

I heard somebody say that no western premier had accepted the offer. But I have to remind you that the Premier of Saskatchewan did when he was here.

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

Mr. Nystrom: Mr. Chairman, I would like to respond in a logical way to what Mr. Tobin was asking. I hope you would take me seriously on this Brian.

Clause 41 would still be different from Clause 42. And Clause 42, without the amendment being passed, Prince Edward Island did not count. Any combination of population that one used, they just did not count because they are so tiny; you have to have two of the Atlantic provinces combining to make up 50 per cent of the population. So they are absolutely and totally out.

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Under my amendment for Clause 42, Prince Edward Island counts in three ways. You used the words that they were totally irrelevant. I suspect, with great respect, that they are not totally irrelevant, because they count in three ways.

First of all, if you look at the referendum rules in Clause 41, as it is written, the over all national majority. So Prince Edward Islanders vote and are counted in the over all national majority.

Now, there are not very many people in the national majority. They are tiny; but at least they count at least a little bit. But in Clause 41 they did not count at all.

The second point is that they also, under my amendment, count in the regional majority. Again, they are tiny, but in the region they are a lot bigger; but they still count. You said they were totally irrelevant; but they also count in the regional majority in my amendment; and Prince Edward Island is not large, but in terms of the Atlantic region, it is significant. But you said they were totally irrelevant.

Mr. Mackasey: And your amendment.

Mr. Tobin: A point of privilege, Mr. Chairman.

The Joint Chairman (Mr. Joyal): I am sorry, you do not have a point of privilege when the Chair is about to offer some advice to the honourable member.

The Chair has listened to you very carefully. I have told you very politely that at this end of the table honourable members are entitled to know and to understand what is going on at the other end of the table.

I have so invited you very politely and gently twice. Now you come back a third time and the procedure is that when a mover is to conclude there is not more or any further intervention.

That has been the rule around this table, and we have dealt that way with a great number of amendments and subamendments and main clauses of the proposed motion.

If we are to go on, then we must abide by this kind of procedure which has served us well in the past.

I would like to invite at this point Mr. Nystrom to conclude.

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

I am talking about my amendment here, Mr. Tobin, that they would count in a regional majority.

They also count in a third way, Mr. Chairman. I am not eliminating any reference to any two provinces. It will still stay.

You say Prince Edward Island is very small; that they would not really count.

But you can have quite easily Prince Edward Island and Newfoundland voting overwhelmingly “yes” on, say, fisheries, and you have a “no” vote in Nova Scotia, and New Brunswick and that is a small “no”; when you add them all together you get “yes”. You still have “yes” in two provinces—Prince Edward Island is one of those two provinces, and you have an over all “yes” majority in the region.

[Page 123]

I would like to say in summary, Mr. Chairman, that Clause 41, without the amendment. Prince Edward Island does not count at all. There is no way where they count at all—any kind of combination eliminates them, absolutely and totally.

But in Clause 42, under the Minister’s proposal, they count in the over all, national majority and in the Minister’s proposition they count as one of the two provinces. I have not eliminated that. I have not eliminated the national majority.

I am adding a third thing, which is the regional majority—and they also count in that.

So they are relevant in all three cases, whereas in Clause 41 they were not.

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

I see honourable members are ready for the question.

Amendment negatived.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to take the next amendment, identified as G-39, Clause 42, page 13…

[French]

The next amendment is identified as G-39, clause 42, page 13; it is moved by the government party

[English]

and I would like to invite Mr. Irwin to mote the amendment in the usual way.

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

I wish to move that Clause 42 of the proposed constitution act, 1980 be amended by striking out lines 18 to 20 on page 13 and substituting the following:

Under the Great Seal of Canada which proclamation may issued where

(a) amendment to the constitution of Canada has been authorized under paragraph 41(1 )(a) by resolutions of the Senate and House of Commons;

(b) the requirements of paragraph 41(1 )(b) with respect to the proposed amendment have not been satisfied within 12 months after the passage of the resolutions of the Senate and House of Commons and

(3) A proclamation issued under Subsection 2 in respect of a referendum shall provide for a referendum to be held within two years after the expiration of the twelve-month period referred to in paragraph (b) of that subsection.

Mr. Corbin.

[French]

Mr. Corbin: Mr. Chairman, I move:

That Clause 42 of the proposed constitution act, 1980 be amended by striking out line 18 to 20 on page 13 and substituting the following:

Under the Great Seal of Canada which proclamation issued where

(a) Amendment to the Constitution of Canada has been authorized under paragraph 41(1)(a) by resolutions of the Senate and the House of Commons;

[Page 124]

(b) The requirements of paragraph 41(1)(b) with respect to the proposed amendment have not been satisfied within 12 months after the passage of the resolutions of the Senate and the House of Commons, and

(3) A proclamation issued under subsection (2) in respect of a referendum shall provide for a referendum to be held within two years after the expiration of the twelve-month period referred to in paragraph (b) of that subsection.

Thank you.

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

[English]

Mr. Irwin: I see it is almost 10:30 p.m., Mr. Chairman.

The Joint Chairman (Mr. Joyal): Yes, and I wish to say to honourable members that in fact, through consultation the Chair has noticed that there is a subamendment to that main amendment.

I think in all fairness, if we were to have a debate in an orderly and intelligent way, we should reserve that amendment and subamendment for further discussion tomorrow.

Amendment stood.

Subamendment stood.

The Joint Chairman (Mr. Joyal): The meeting is adjourned until 9:30 tomorrow morning.

[French]

The meeting is adjourned until 9:30 tomorrow morning.

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

Committees, Government Documents, Votes and Proceedings

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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 51 (2 February 1981)

Constitution of Canada

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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 51 (2 February 1981)

Constitution of Canada

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