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 52 (3 February 1981)

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Date: 1981-02-03
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 52 (3 February 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 52

Monday, February 3, 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

[Page 2]

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

Joint Chairmen:

Senator Harry Hays, P. C.
Serge Joyal, M. P.

Representing the Senate:

Senators:

Austin
Donahoe
Lapointe
Lucier
Molgat
Petten
Roblin
Rousseau
Tremblay–10

Representing the House of Commons:

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Epp
Friesen
Hawkes
Hnatyshyn
Irwin
Lapierre
Mackasey
Nystrom
Robinson (Burnaby)
Tobin
Wright–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 Tuesday, February 3, 1981:

Miss Campbell (South West Nova) replaced Mrs. Côté;
Mr. Hnatyshyn replaced Mr. McGrath;
Mr. McGrath replaced Mr. Epp;
Mr. Epp replaced Mr. Hnatyshyn;
Mr. Hawkes replaced Mr. Beatty;
Mr. Hnatyshyn replaced Mr. Fraser;
Mr. Friesen replaced Mr. Hnatyshyn;
Mr. Hnatyshyn replaced Mr. Fraser;
Mr. Friesen replaced Mr. Hnatyshyn;
Mr. Hnatyshyn replaced Mr. McGrath;
Mr. Wright replaced Mr. Crombie.

[Page 3]

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

On Tuesday, February 3, 1981:

Senator Connolly replaced Senator Cottreau;
Senator Wood replaced Senator Connolly;
Senator Donahoe replaced Senator Asselin;
Senator Molgat replaced Senator Wood.

[Page 4]

MINUTES OF PROCEEDINGS

TUESDAY, FEBRUARY 3, 1981

(96)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 9:45 o’clock a.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 Steuart.

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

In attendance: From the Research Branch of the Library of Parliament: Mr. John McDonough, 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.

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

The Committee resumed consideration of the motion of Mr. Irwin,—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

(a) 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(I)(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 (b) of that subsection.”

Mr. Robinson (Burnaby) moved,—That the amendment be amended by striking out paragraph (c) to subsection (2) and substituting the following:

[Page 5]

“(c) the issue of the proclamation has been authorized by resolutions of the Senate and House of Commons after the expiration of the twelve months referred to in paragraph (b); and

(d) the issue of the proclamation has been authorized by resolutions of the legislative assemblies of at least four provinces after the expiration of the twelve months referred to in paragraph (b).”

After debate, the question being put on the subamendment, it was negatived on the following show of hands: YEAS: 7; NAYS: 13.

After further debate on the amendment, at 12:31 o’clock p.m., the Committee adjourned to the call of the Chair.

AFTERNOON SITTING

(97)

The Special Joint Committee on the Constitution of Canada met this day at 3:50 o’clock p.m., the Joint Chairman, Senator Hays, presiding.

Members of the Committee present:

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

Other Senator present: The Honourable Senator Steuart.

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

Other Member present: Mr. Friesen.

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

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.

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

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

(b) the requirements of paragraph 41(!)(6) in respect of the proposed amendment have not been satisfied within

[Page 6]

twelve months after the passage of the resolutions of the Senate and House of Commons; and

After debate the question being put on the amendment, it was agreed to on the following show of hands: YEAS: 14; NAYS: 8.

Clause 42, as amended, carried, on division.

Clause 43 carried.

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

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

“21. (1) The legislative assembly of each province to which subsection 16(2). 17(2), 18(2), 19(2) or 20(2) does not expressly apply may, by resolution, authorize the issuance by the Governor General of a proclamation under the Great Seal of Canada declaring that any of those provisions

(a) has application in the province; or

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

(2) Where the legislative assembly of a province authorizes the issuance of a proclamation declaring that a subsection referred to in subsection (1) has application in the province, the proclamation may be issued notwithstanding any other provision of this Act respecting the procedures for amending the Constitution of Canada and shall

(а) if the subsection is to apply in the province without any limitations or conditions, amend the subsection to include the province as a province named in the subsection; or

(b) if the subsection is to apply in the province to the extent or under conditions stated in the resolution authorizing the issue of the proclamation, subject to section 22 so apply in the province and, for all purposes, including the purpose of amendment, be deemed to be a provision of this Charter.”; and

(b) renumbering the subsequent clauses accordingly.

By unanimous consent, the motion was withdrawn.

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

(a) adding immediately after line 29 on page 13 the following:

“44. (1) Notwithstanding section 50, an amendment to the Constitution of Canada

(a) adding a province as a province named in subsection 16(2), 17(2), 18(2), 19(2) or 20(2), or

[Page 7]

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 the province to which the amendment applies.

(2) The procedure for amendment described in subsection (I) may be initiated only by the legislative assembly of the province to which the amendment relates.’’; and

(b) renumbering the subsequent clauses accordingly.

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

On Clause 44 of the proposed Constitution Act, 1980

And debate arisen thereon, at 5:46 o’clock p.m., the Committee adjourned to the call of the Chair.

EVENING SITTING

(98)

The Special Joint Committee on the Constitution of Canada met this day at 8:12 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Epp, Friesen, Hawkes, Hnatyshyn, Irwin, Joyal, Lapierre, Mackasey, Nystrom, Robinson (Burnaby), Tobin and Wright.

In attendance: From the Research Branch of the Library of Parliament: Mr. John McDonough, 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.

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

(A)—That the Joint Committee meet on:

Wednesday, February 4, 1981

3:30 p.m. to 6:00 p.m.

8:00 p.m. to 10:30 p.m.

[Page 8]

(B)—That the Sub-committee on Agenda and Procedure meet at 10:30 o’clock p.m. on Wednesday, February 4, 1981.

(C)—That, subject to confirmation at the Steering Committee meeting of Wednesday, February 4, 1981, the schedule of meetings for Thursday, February 5, 1981 be as follows:

9:30 a.m. to 12:30 a.m.

3:30 p.m. to 6:00 p.m.

8:00 p.m. to 10:30 p.m.

By unanimous consent, the Ninth Report of the Sub-committee was concurred in.

After debate, the question being put on Clause 44, it was negatived on the following division:

YEAS:

Messrs.

Lapierre
Nystrom
Robinson (Burnaby)—3

NAYS:

The Honourable Senators

Austin
Donahoe
Hays
Lapointe
Lucier
Molgat
Petten
Roblin
Rousseau

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Epp
Friesen
Hawkes
Hnatyshyn
Irwin
Mackasey
Wright—19

Clause 45 carried.

Clauses 33 and 34 carried, on division.

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

(a) adding immediately after line 12 on page 10 the following:

“35. (1) Notwithstanding section 36, an amendment to the Constitution of Canada

(a) adding a province as a province named in subsection 16(2), 17(2), 18(2), 19(2) or 20(2), or

[Page 9]

(2) The procedure for amendment described in subsection (1) may be initiated only by the legislative assembly of the province to which the amendment relates.” ; and

(b) renumbering the subsequent clauses accordingly.

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

Clause 35 carried, on division.

On Clause 36 of the proposed Constitution Act, 1980

Mr. Irwin moved,—That Clause 36 of the proposed Constitution Act, 1980 be amended by striking out lines 30 to 32 on page 10 and substituting the following:

“section.”

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

Clause 36, as amended, carried, on division.

Clause 37 carried, on division.

On Clause 38 of the proposed Constitution Act, 1980

Mr. Irwin moved,—That Clause 38 of the proposed Constitution Act, 1980 be amended by

(a) striking out lines 45 and 46 on page 10 and substituting the following:

“38. (1) The legislative assemblies of seven or more provinces that”; and

(b) striking out lines 14 to 33 on page 11 and substituting the following:

“(3) Where copies of an alternative have been deposited as provided by subsection (2) and, on the day that is two years after this Act, except Part V, comes into force, at least seven copies remain deposited by provinces that have, according to the then latest general census, combined populations of at least eighty per cent of the population of all the provinces, the government of Canada shall cause a referendum to be held within two years after that day to determine whether

(a) paragraph 41(1)(6) or any alternative thereto approved by Parliament and deposited with the Chief Electoral Officer at least ninety days prior to the day on which the referendum is held, or

(b) the alternative proposed by the provinces, shall be adopted.”

After debate, at 10:34 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

[Page 10]

EVIDENCE

(Recorded by Electronic Apparatus)

Tuesday, February 3, 1981

0946

[Text]

The Joint Chairman (Mr. Joyal): Order, please. May I invite the honourable members to take their seats so that we can resume consideration of the proposed motion on Clause 42.

On Clause 42—Amendment authorized by referendum

The Joint Chairman (Mr. Joyal): Last night when we adjourned the Chair had called the main amendment, moved by the government party and I drew the attention of the honourable members at that point that there was a subamendment to that main amendment, and that subamendment was to be moved by the NDP Party.

I would like to repeat the number of the proposed amendment and subamendment so that all honourable members have in their hands copy of the proposed motion.

The main amendment is identified G-39, Clause 42, page 13. The number of the subamendment is N-37, Claude 42, page 13.

[French]

The sub-amendment that we will study first is number N-37, section 42, page 13.

[English]

That clause of the proposed motion is in relation with the authorization of a referendum and if some of the honourable members do not have a copy of the amendment I will make sure that the Clerk extends one to them.

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

Mr. Robinson: Thank you, Mr. Chairman. This is an amendment to Clause 42 on the referendum provisions, providing additional safeguards for provincial interests and I would move that Clause 42 of the proposed constitution act, 1980 be amended by striking out paragraph (c) of the amendment to subclause (2) and substituting the following:

(c) the issue of the proclamation has been authorized by resolutions of the Senate and House of Commons after the expiration of the twelve months referred to in paragraph (b); and

(d) the issue of the proclamation has been authorized by resolutions of the legislative assemblies of at least four provinces after the expiration of the twelve months referred to in paragraph (b).

[French]

And in French, it is moved that:

Clause 42 of the proposed constitution act, 1980 be amended by striking out paragraph (c) of the amendment to subclause (2) and substituting the following:

(c) the issue of the proclamation has been authorized by resolutions of the Senate and House of Commons after the expiration of the twelve months referred to in paragraph (6); and

[Page 11]

(d) the issue of the proclamation has been authorized by resolutions of the legislative assemblies of at least four provinces after the expiration of the twelve months referred to in paragraph (b).

Mr. Chairman, Mr. Nystrom will explain the purpose of this important amendment.

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

Mr. Nystrom: Thank you very much, Mr. Chairman. Very simply, what our amendment does is the following, that if a national referendum is to be held under the Minister’s amendment it can only be held one year after a deadlock.

Now, our amendment adds one very simple thing. It says that a national referendum may not be held unless at least four legislatures pass resolutions saying that they agree that a referendum should be held. That is very simply what our amendment does. We cannot have a referendum solely on the wishes of the national Parliament of Canada but at least four legislatures must consent. That is very simply what it says.

One of the reasons for that, there are a number of reasons, but the first and foremost reason of course is that we are a federal state and in a federal state there is a division of power, and in a federal state there is a partnership between the two orders of power, and both those orders of power, in my opinion, are sovereign within their own jurisdiction, supreme within their own jurisdiction, and a national referendum can be held on any powers in the constitution of Canada.

It can be held solely on provincial power, taking away provincial powers, expanding provincial powers. It can be held of course on federal powers. It can be held on federal powers. It can be held on a mixture of the two. What I suggest and suggest very strongly to this Committee, is that if we are going to have a referendum respecting the division of powers in this country then both sides of the partnership, both orders of government in this country, should be involved in igniting the referendum and springing the referendum or starting the referendum, and what we are saying here is, in my opinion, something that is very, very reasonable. We are not saying that the provinces must unanimously agree. We are not saying that the six provinces, according to the Victoria Charter, should agree. We are not even saying that the four provinces must be in two or three or four of the geographical areas of this country. We are saying any four provinces.

It could for example, Mr. Tobin, be the four Atlantic provinces. They can be any four provinces. They could represent a very tiny minority of the Canadian population, that is four provinces representing not even 50 per cent of the population.

I think that the amendment that I am putting before this Committee this morning is one that is super reasonable; very, very reasonable. It does not have too many strings attached to it at all.

In fact, Senator Roblin said perhaps it is much too weak, but we have argued with the Minister and the government for a long time on the referendum procedure being very unfair. I have in the past called it a “loaded dice”; and there have been one or two improvements. We no longer have the instant referendum, and that is an improvement.

[Page 12]

That is really about all. I think this would be another minor step forward and I personally would like to make it a lot stronger, but I want it to be super-reasonable in the hope, in the aspiration that the government could at least meet us part of the way and show some good faith that indeed we live in a federation in this country, that we do not live in an unitary state. That if unilateralism is justified this time around and is accepted this time around then we must make it more difficult to happen again. I do not think it should ever happen again, and this amendment would make sure that even though the federal powers are the only one that can initiate a referendum, they cannot do so, they cannot exercise a referendum unless there is at least some provincial consent.

I do not think there can be any argument, Mr. Chairman, that this would make a referendum impossible, that it would nullify the whole purpose of a referendum procedure. It does not do any of those things. All it says is let us respect at least some of the federative aspects of our federation and realize that people feel close, not only to their federal Parliament but people also feel close to their provincial legislatures, and that the people of Canada are federalists and we are proud to be federalists and when we say we are federalists we are.

So I recommend this amendment to the Committee and hope that the Minister, as a gesture of good faith to the regions and to the provinces and to the people of Canada, to the nation of Canada, will accept this reasonable amendment.

An hon. Member: Hear, hear.

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

Honourable Senator Austin.

Senator Austin: Thank you, Mr. Chairman. I want, at this point, to just put a question to Mr. Nystrom, rather than to participate by way of debate which I might do later.

I notice, Mr. Nystrom, that in your paragraph (c) you are suggesting that there be a second debate on the proposed referendum in both the Senate and House of Commons. That is the first amendment you are making. There would already of course, have been one debate in the Senate and the House on the referendum under paragraph (b), so time has elapsed, and then you provide for another debate.

Then in paragraph (b) is it the case that you are not seeking, and this strikes me as a puzzle, you are not seeking debates in the legislatures of the provinces except those who take affirmative action. Would you consider in paragraph (d) the issue of the proclamation provided that to reverse it, provided that it has not been negative by the resolutions of a number of legislatures. I am not wanting to get into the number at this moment, but it seems to me at least for logical completeness and fairness in your proposal, you would want to make a suggestion that premiers take their responsibility with their legislatures to put forward their arguments and indeed meet

[Page 13]

their opposition in their legislatures before they could try to negative a referendum.

In other words, the onus would be on the premiers to justify their position. That is my question Mr. Chairman.

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

Mr. Nystrom: I think it is a reasonable question and it has been suggested by people before that there should automatically be a debate and that it should be negatived, by seven in this case, to deny a national referendum.

The reason I chose not to go that route is that I really believe that if we have a referendum we have to respect the federation and we have no provision, and I am not by the way moving an amendment where we have complete reciprocity, where the provinces can initiate a national referendum.

Therefore, Mr. Chairman, if this referendum is initiated by the national Parliament and if we accept Mr. Austin’s suggestion, then what would be doing is really forcing all the legislatures to introduce resolutions and if provinces did not want the referendum they would have to defeat it, in other words, they would have to express something that is negative, but there is no reciprocal arrangement. In other words, if the provinces want a national referendum there is no way that they can initiate it, even though the provinces, by the way, under Clause 43 can initiate constitution amendments.

There is no way that the provinces can initiate a national referendum and there is no mechanism here where Parliament has to negatively say, “We do not want a referendum”.

I just thought it would be consistent, Senator Austin, to leave everything in the affirmative, in the positive. Parliament can pronounce in the positive, and if we should have a national referendum it would only happen if four provinces pronounced in the positive. I think if you go the other route you also run the risk of having more negativeness in the country and a bit more disunity in the country, because you are having needless debates in some of the legislatures.

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

The honourable Minister of Justice.

[French]

The Honourable Jean Chrétien (Minister of Justice): Mr. Chairman, we cannot accept this amendment because we think that the mechanism that we have provided is already quite complicated and, to my mind, it gives justice to each and everyone.

Why? First, with the proposed changes, there will be a one-year period between the federal government proposal and the possibility of a referendum and, during that year, the provinces will be in a position to give their opinion. There will be debates, first, in the national parliament and then in the legislatures of all the provinces.

Then, the people will know perfectly well what the nature of the problem is and what the nature of the changes are that could be brought through an amendment proposed by the Canadian government.

[Page 14]

Following the debate in the national parliament and then in the various legislative assemblies, the opinion of the public will be quite well known and the government, at the end of that one-year period, will have to take the responsibility of holding or not holding the referendum.

Of course, a referendum is nothing easy. It is not without any dangers for those who propose it. Just think of the referendum in Quebec, though that did not have a one-year period for debates and comments between the time when it was proposed and the time when it was adopted.

In fact, the opposition was highly limited as far as its freedom of organization was concerned, and even though, the referendum was lost.

Let us refer to the Australian experience where they have had a referendum mechanism for many, many years; that experience has been negative. If my memory serves me right, there has been 33 referendums and only five were won and those five concerned only minor changes to the constitution.

Consequently, I think that the mechanisms that we have provided in this particular case give all the necessary assurance that there will be a long debate during which everybody will have the opportunity to give his or her opinion, both in the Canadian Parliament and in the legislative assemblies, and the government in power will then have to take its responsibilities.

Sometimes we hear that the government should not be allowed to take any measures; but the government is responsible before the voters and if it makes mistakes, it has to pay for them. That is why the government is elected, so that it can make decisions, and if it makes the wrong one, the voters can throw it out on the next occasion.

Just imagine the situation of a government that would initiate a referendum for nothing, and would then lose it; it would be in a ridiculous situation vis-à-vis the voters for the next election.

Consequently, I think that the present mechanism is sufficient and I do not think it is necessary to add the consent of three or four provinces, whether from the East, from the Center or from the West; what would that represent as far as the population is concerned it is like many of the amendments that the NDP has proposed to the charter of rights. You cannot enshrine everything, you cannot put all the details.

I think that with this mechanism, with first a vote in the House of Commons, the government will be in a position to appreciate whether or not it is on the right track. Then, there will be one year during which the legislative assemblies will have to give their opinion and, after that period, and only then, the government will have to take its responsibilities, namely to hold or not to hold a referendum.

The governments have to take their responsibilities and I do not think that, in a constitution, you can deprive the national government that represent all Canadians, in all circumstances, of the possibility of taking its responsibilities after a one year

[Page 15]

period during which everyone will have had time to express his or her opinion both in the Parliament of Canada and in the legislative assemblies; and if the government was wrong, it will lose the referendum, as it happened 27 times out of 33 for the central government of Australia.

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

[English]

1005

Mr. Nystrom, to conclude on the proposed subamendment.

Mr. Nystrom: Mr. Chairman, just a word to appeal to Committee members to look seriously at the amendment.

All it says is that four legislatures must approve before referendum is held.

Now, I think that is reasonable and respects the fact that we are a federation and that we have to respect that; that if we do we will be adding to the unity of this country.

I am not asking the government for something which is a gigantic and revolutionary amendment. It is a progressive step forward towards realizing the fact of what we are—a federation in this country.

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

Subamendment negatived.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to come back on the main amendment.

The honourable Senator Roblin.

Senator Roblin: Mr. Chairman, if this is the amendment that we are now about to deal with on the principle of referenda, then I have a few words to say on the subject.

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

Senator Roblin: I am distressed that this proposition of a referendum is being presented as a unifying device in organizing the future affairs of Canada.

A more grotesque distortion of what is likely to be the result of this measure if we accept it could hardly be devised.

I submit to you that far from being a unifying device, it will be a highly divisi exercise which we will live to regret; because we must be quite clear what this means in the future.

This is not a single deadlock breaking exercise with which we are dealing. We are dealing with the proposition of submitting into the permanent constitution of Canada for ever a mechanism by which the federal government can consult the people of Canada on any issue it chooses that affects the federation without the participation of the other members of that federation in the proposition.

We are enshrining in our constitution something that will be there for ever and which will have its effect on all our activities, its influence in the way we do business from now on in, and, in my opinion, it substantially subverts the principle of federalism as we have known it is this country up to now.

[Page 16]

It moves decisively in the direction of a unitary state. That has never really been considered sound in the development of Canadian history.

I have a number of witnesses I would like to bring to bear on this question. I thought of including Mr. Nystrom. He might not object if I were to say that he is perhaps not my best witness, but certainly a very good one. In his remarks in the House of Commons on October 7, which I did not have the pleasure of listening to, but which I have had the opportunity to read—and by his remarks this morning—he has exposed some of the weaknesses of this problem.

But you can go to some of the witnesses the government itself produced on this vital issue, and I refer to Professor Maxwell Cohen to begin with.

Professor Cohen made it perfectly clear that, in his opinion, a referendum did not fit the Canadian system in dealing with constitutional affairs.

Professor Cohen said:

If you have proper rules for amending the constitution and sometimes fail to get agreement, that is the nature of the game.

How directly Professor Cohen has put his finger on the principle of federalism; that if one party cannot get its way it cannot proceed roughshod over the others.

I quote the newspaper clipping which I have checked to be accurate in its summary. He said that one government should not be able to bypass those rules by going to the people, unless the same avenue is open to the other governments involved.

Mr. Chairman, that is certainly not the case in this issue here.

I do not know whether anybody in the Liberal party pays any attention to Claude Ryan these days; certainly on the federal level I rather think not, although I see some members nod their heads.

An hon. Member: We would vote for him.

Senator Roblin: Well he would not vote for you, because he does not approve of the use of referenda in Canada. His position is very clear on that.

I do not know if anybody pays any attention to David Lewis these days, and I sometimes think it is a mistake if they do not. He has his reservations about it.

If you want to talk to Premier Blakeney he will tell you a referendum is certainly no choice for him, and I would suspect that if you were to go over the list of all the premiers of Canada you might find a very substantial proportion of them have very little good to say about the question of referenda.

One interesting event took place two or three weeks ago in which the concept of a referendum was discussed before a relatively nonpolitical and impartial body which met in this city.

The person who led the discussion was Mr. Gordon Robertson. His name is not unfamiliar to most people around this

[Page 17]

table, because he has been the most important and influential, in my opinion, let me say, constitutional advisor of the government that we have had over these last ten or twelve years. More is the pity that he is not advising them today, because if he was he would certainly have advised them not to proceed with this referendum idea that they have here.

I have his speech in front of me, and I wish I could quote it all, because it is so cogent to our discussion, but that is impossible.

I can excerpt for the Committee some of his main points.

He said that in no way can a referendum be considered to respect the federation—words that Mr. Nystrom used; I think they are good words—to respect the federation and it does not do that. It respects the will of the federal government; it does not respect the will of the provinces who are part of that federation.

He says that it breaches the sovereignty that the British North America Act has placed in the hands of the legislatures and the governments of the provinces. That is where it is placed—in the hands of the legislatures.

Yet, by referendum in which they have no say that can be removed from them. It is not consistent with Canadian federalism.

Indeed, as he pointed out in his paper, no legislative body in any one of the provinces need have considered or expressed an opinion on the matter before the federal government makes a decision to hold a referendum.

Premier Blakeney, when he was here, amply pointed out the proposition of the provinces that if we are going to have this thing, they should have some input into it. I do not propose to deal with the arguments because they are before the Committee.

But Mr. Robertson made another point which interests me very much, and it has to do with the question of responsible government.

If you have a proposal or a referendum by the federal government and it is a year or whatever before the vote is to be taken, what do you suppose is going to happen in that interval? Are people going to be standing still? By no means!

Those in the provincial governments who oppose the amendment will go running active campaigns to mobilize the opinion in their electorate. There will be a confrontation of the same kind that we have seen in other referenda in Canada, and I am thinking particularly of the one during World War I.

We will see that the end product of this may very well be that some government—and it might well be the federal government, for all I know, who has agitated and supported a particular referendum before the Canadian people, could find itself rejected by the vote. You might find that any provincial government that takes a stand on this matter on one side or the other might find itself rejected by its electorate after the votes are counted.

What then becomes of their legitimacy as governments? It would seem to me that their recourse would be to appeal to the people and have another election.

[Page 18]

We are introducing factors into our constitution—ideas of constitutional propriety that we have not fully examined. It seems to me that this is a matter which must be considered in conjunction with the referendum.

It is said to us that this permanent entrenchment of the referendum in our system is a tie breaker. How do we know that? What kind of a tie are you going to break? All you know is that it will give the federal government an opportunity to express its will, and appeal to the people on that basis.

It seems to me that, in that case it is clear that this is not a measure that is easily reconciled to the principles of federalism that we have known up to the present time.

Mr. Chairman, if you were to ignore all of these warnings from experienced public servants, from experienced politicians, from political leaders, particularly in a province like Quebec which is important on this aspect of the matter; if you decide to go ahead in spite of it, well, let me express to the Committee some of the peculiar situations in which you will find yourself with respect to the classes of provinces that we will have in this country under this arrangement.

We have gone over this before. But I think it is important to go over it again because we are now up against the crunch.

If we were to introduce this referendum system, we will have forever in our constitution, unless by a referendum or something else it is changed—which I do not think is very probable; we have entrenched the domination of central Canada in perpetuity by providing a veto for the electors of Ontario or Quebec.

I am sorry to have to put it that way, because no one who is interested in the future of the country wants to refer in such absolute terms to the relationship between central Canada and the rest; but the fact is there and it cannot be overlooked.

It will provide Ontario and Quebec with a permanent veto over what is being done.

Now, what powers does it give to the rest? Are they given equal powers? Well, certainly not by provinces. You might say by regions they are; but even that is not entirely accurate, as we found out last night when we were examining the position in the Maritimes.

The position still is that the Maritimes are in a class by themselves; because, as we have pointed out last night, 2.95 per cent of the Canadian population or about less than one third of the population of the maritimes can control the vote in that area one way or another. So that puts them in a class by themselves.

British Columbia is in a class by itself, because its vote together with any western province can, under the terms of this arrangement, have effect.

But the other western provinces are in another category, because Saskatchewan and Alberta and Manitoba—no two combinations of those at the present time are able to control the vote in Western Canada.

British Columbia is an essential to any success of any one other province.

[Page 19]

But Saskatchewan, Alberta and Manitoba are left in this peculiar limbo of not having the same constitutional weight and effect as would be given to other provinces in the country. That only points out, to my mind, the inadequacies of any system of final decision-making in the constitution that rests on the Victoria formula as its basis.

But I do not propose to leave my argument at that point; because I am really not interested fundamentally in whether or not the mechanical terms of a referendum can be justified. I do not think they can.

But what I am basically interested in is the concept of a referendum itself. It is presented to us in this clause in our bill as a permanent item in our constitution to be invoked by the federal government any time it likes, and to use Mr. Nystrom’s statement in the House of Commons, where federal money and federal timing and federal wording will be absolute in this matter; where no prior consultation with the provinces is expected or required under this bill; where it is done as a unilateral action against the very basis of a federal state such as ours, and has no place in our constitution at all.

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If you cannot get agreement from the provinces of Canada by a rational amending formula, and there has been several of them suggested, then surely that is a warning sign if ever there was one that you should not proceed.

In a federation you need consensus; if you do not get consensus, you should not go ahead, and to force the issue to the point of a referendum in my opinion, in the long run, will not prove to have been a sound measure in Canadian constitutional building.

So my conclusion, Mr. Chairman, is that this clause ought to be rejected.

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

Mr. Robinson followed by Mr. Irwin.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, thank you very much. I have a concern with respect to the proposed referendum beyond the concerns which were expressed earlier by Mr. Nystrom and some others, and that is one which, in the course of questioning various witnesses, I have raised, it is this: as the referendum would apply to the charter of rights, it is possible for a simple majority, 51 per cent of Canadians throughout Canada to support an alteration to the Charter of Rights.

Now, I have referred in the past to taking away rights from what is supposed to be a floor of minimum rights, but the argument has been made: well there are certain rights that perhaps can be added under the referendum provisions. Well, Mr. Chairman, whether these rights are added or subtracted, the reality remains that to permit a bare majority of 51 per cent of Canadians to alter what is supposed to be a fundamental statement of Canadian rights and freedoms negates the purpose and effect of that charter of rights.

Now, some may say: but just a minute, it is not just a majority across the country, it also requires a regional majori-

[Page 20]

ty in each of the four regions. Well, Mr. Chairman, that safeguard is all well and good when one is dealing with matters of regional concern, but in the case of the charter of rights, as the Minister has pointed out on many occasions and as the Prime Minister has pointed out on many occasions, we are not dealing with regional concerns. That is precisely the point of a charter of rights, these are concerns which transcend regional boundaries, these are supposed to be fundamental rights and freedoms of all persons in Canada wherever they may live.

So to suggest that because there is a requirement for a regional majority, 51 per cent in a region in addition to the overall 51 per cent majority, is surely inadequate.

Mr. Chairman, I am not going to create any great hypothetical scenarios of what my happen because, hopefully, the use of the referendum would be very limited; but we are here in this committee attempting to draft the best possible charter of rights and the best possible amending formula, and if we have an amending formula which negates to a large extent the impact of the charter of rights, even though the opportunities for that abuse may be very rare, then I suggest we are not performing our function in attempting to create an effective and meaningful charter of rights to protect minorities; because, Mr. Chairman, surely that is the other great purpose of the charter of rights, that in times of unpopularity, perhaps, towards a particular minority group in Canadian society, in a time when there might be a massive majority throughout the country, in each of the regions and in the country as a whole, a mood of unpopularity against a particular minority, that the referendum would permit that kind of process to take place.

Again, the argument may be made: well, just a minute, this requires the consent of the Senate and the House of Commons. Well, Mr. Chairman, with respect, we have seen too often the Senate and House of Commons and provincial legislatures in this country bowing to the prevailing winds which may be blowing in the direction against unpopular minorities.

We saw, for example, in the case of the War Measures Act sweeping abuses of fundamental civil liberties and there it can certainly not be argued that the Senate and House of Commons provided any safeguard whatsoever against the abuse of those fundamental rights.

So, Mr. Chairman, I suggest that there is a fundamental principle here that a charter of rights is supposed to protect minorities, and that that principle is completely negated by allowing, through the device of the referendum, a bare majority to take away those rights.

Now, some may say: well, can you give some examples? I mean, this is all very well to talk hypothetically about this but, Mr. Chairman, there are a couple of possibilities and I suggest that perhaps one of the most plausible possibilities, and I say this very openly, is the danger that on the question of abortion there may be the possibility of a right to life amendment, what has been called by some a right to life amendment. There has been a very powerful lobby in the House of Commons and in the Senate and elsewhere in this country on this question. We have seen some evidence of that in the working of this Committee.

[Page 21]

These are well financed lobbies and, Mr. Chairman, I suggest that it is not beyond the realm of possibility at all that Parliament, the House of Commons and Senate, in an attempt to avoid dealing directly with this issue, this very controversial issue, may decide to take the easy way out in many respects and to say: well, we will leave that up to the people of Canada to decide.

Well, Mr. Chairman, if that is the case there is a very real danger that this explosive and very controversial question could be put to the people of Canada under the guise of an amendment to the constitution, the so-called right to life amendment to the constitution, which certainly I would very strongly oppose but which, Mr. Chairman, could cause very great regional, and not only regional, concerns across a wide spectrum, that if there is to be that fundamental change it should only take place through the regular amending formula.

Mr. Chairman, there are other possible amendments, other possible scenarios which are certainly not purely hypothetical. Were a court, for example, to interpret Clause 15, the equality rights clause of the proposed charter of rights, in a liberal way, in a small liberal way, expanding that to include certain minority groups which perhaps may not be particularly popular at a given time, it is not beyond the realm of possibility, Mr. Chairman, that Parliament, the House of Commons and the Senate, may say: well, we are prepared to let the people decide on whether or not that is an acceptable interpretation, and, Mr. Chairman, to subject that particular minority to the 51 per cent of Canadians who may decide that they are to be denied fundamental rights.

So, Mr. Chairman, I conclude, then, by saying that although not in Clause 42 but under the proposed Clause 50 we are proposing an amendment which would remove the opportunity for the referendum mechanism to be applied to the charter of rights. I do hope and I would ask the Minister that there would be some flexibility—well, that is our referendum as it stands now, that it is inappropriate for the charter of rights to be affected by the referendum but I am asking whether the Minister, if he is not prepared to consider that, if at the very least he is prepared to consider, and I say “consider” because we have not yet arrived at Clause 50, the possibility of some additional safeguards, some recognition, Mr. Chairman, that these are fundamental rights and freedoms and should not be removed by a bare majority of 51 per cent. There should be some larger threshold, in other words, whether we are talking about adding or subtracting from these very fundamental rights, some two thirds majority or something of that nature.

So, Mr. Chairman, I would hope that the Minister would at least indicate an openness to examine this. This was a point raised by a number of witnesses and which certainly we in this party feel very strongly on.

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

I would like to invite Mr. Ron Irwin followed by Honourable Senator Tremblay.

Mr. Irwin.

[Page 22]

Mr. Irwin: Mr. Chairman, there has been so much discussion over the fact that we have been at this for 53 years and I do not think that needs to be covered again. There has been some discussion on the Quebec experience, that it was not the politicians that kept Canada together, it was the people in the referendum.

We have had ample discussion on the deadlock provision through the House and in here, that this should only be used as a deadlock provision and I think that is what it is clearly meant to be.

We have had little discussion on the fact that Ontario, with 36 per cent of the population, has the same right as two of the Atlantic provinces with three per cent. If anybody has a right to complain it is the Premier of Ontario and the people of Ontario, and the proposals are supported by the Premier of Ontario.

We have had some discussion on the War Measures Act but I would venture to say if at that time a decision had been made in my particular area of the country on whether to invoke the War Measures Act, it would have been overwhelmingly approved because there was a threat of anarchy and it could be said that politicians did the wrong thing and the public would have done differently but I doubt it.

What I want to deal with is the perception that bothers me, of the many witnesses we have heard here there were three groups that were opposed to referendum. The first were the politicians, I did not hear the ordinary people that came here talking about rights, it was the politicians. They did not really trust the public who put them in the position they were, once they were elected they lost this trust.

And the second were the intelligentsia, and I do not know why they do not trust the public, it is a reflection of perhaps they have not reached them.

And the third group were some of the senior civil servants, none of them who came here but were outside the public who were maybe concerned about the erosion of their power base. The politicians, intelligentsia and the civil servants.

Mr. Corbin: Retired civil servants.

Mr. Irwin: Retired civil servants.

Senator Roblin: Tired civil servants.

Mr. Irwin: That is a sad reflection on our whole democratic system, that there is so little faith in the public, and it is my feeling that if the public is to be left out of this system then there is something wrong with that system and we all have a part of the blame, the media, the politicians and the public themselves. I would prefer to see a better system involving the public but to say you are not to be involved because you have no sense, you do not understand the issues or we can get you or we can pervert the system, is a denunciation of everything we stand for here.

So basically I still he faith in the ordinary person on the street to make up his mind on how he wants this country to be run. I really do. After all this is the person that we represent, millions of them, and if we can not trust them to make up their

[Page 23]

mind on the rights they want, in the final analysis, then we are wrong.

So what do we do? First we let the politicians try to decide; if they cannot, there is a deadlock provision, there is a cooling off period and ultimately the people in the regions of Canada will decide how they want to be governed. There is nothing wrong with that, I think it is a good system of many and I think it should be supported.

Thank you, Mr. Chairman.

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

Mr. Nystrom: Just on a point of order, Mr. Chairman, if I can pose one quick question to Mr. Irwin I would appreciate it.

He made the statement that if anybody had the right to complain about the amending formula it should be the people of Ontario and Mr. Davis. Well, under the amending formula and the referendum Ontario has a veto. I am just wondering what recommendation Mr. Irwin has to make Ontario happier with the amending formula than it is? They already have the veto.

Mr. Irwin: I am satisfied with it, I just do not like the idea of the complaints from some of the members here that Ontario is unfair to the rest of the country because Ontario could approve an amendment yet the amendment would fail because two Western provinces could vote it down or two Atlantic Provinces could vote it down or Quebec with 26 percent of the population could vote it down.

So I think in this whole process the fairest province has been Ontario and I do not think it is fair to Ontario to suggest that they are perverting the wishes of the rest of the country.

Ontario has given up more of their rights than any other region of this country, because they have the largest population, in hopes of getting a regional and fair constitution, at least according to the premier, a fair and regional constitution based on the concepts of confederation and regionalism.

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

[French]

The honourable Senator Tremblay.

Senator Tremblay: Mr. Chairman, I must first stress that Section 42, whether it is amended according to the government proposal, or left in its initial version, is certainly one of the most important provisions under consideration.

The reason for this is quite simple and has been emphasized often: it constitutes a major change in our federative system. The very fact that one of the two levels of government could, in case of a deadlock, be able to refer to the people in order to overcome the reluctance or the rejection by the other level of government of a proposed constitutional amendment, constitutes in itself a radical change to our federative system.

I want to make a few comments on the real consequences on the very unity of the country of the principles which underlie Section 42.

[Page 24]

Hypothetically, and the Prime Minister and the Minister, et cetera, have explained this over and over, this process will be used only in case of deadlock.

The deadlock then might consist of the following: the central government, during negotiations provided for in Section 41, might not obtain the agreement of the provinces. That is the sort of deadlock foreseen in Section 42.

To break the deadlock, the Parliament decides to go to the people. If it were on a minor issue, the problem might not be very serious, but we could suppose that the Parliament would hardly hold a referendum on a minor issue. Therefore it would have to be a major issue.

Let us imagine what would happen. The Parliament and the central government call a referendum on a major issue over which the provinces are not agreed, and in such circumstances the referendum campaign is launched.

Logically, the premiers and the provincial governments opposing the amendment proposal would campaign against it. The federal government would campaign for the amendment.

Can you visualize the psychological predicament of the country? Whatever the outcome, whether the federal government lose or whether the provinces win, we have created in any case systematic confrontation and opposition. Around a negotiating table, opposition and confrontation are a matter of course. A discussion is carried out along what I might call the normal rules of discussion between responsible people, but in a referendum campaign, inevitably the process will raise certain factors which may not always be rational in the effort to convince the population to accept one side or the other.

I believe the Quebec referendum has taught us some extremely important lessons in this respect. I will not go into details, but we should recall the style of argumentation used by either side during that referendum, where the divisions touched even the very heart of families. The government is now proposing to institutionalize such a situation. Such a proposal is almost tragic for it would permanently establish confrontation among the people, not only around the negotiating table.

In my mind, this concept will not only upset the balance between the two levels of government, but using the referendum in order to settle deadlocks, will inevitably split the country.

Whatever the importance of the amendment leading to a deadlock, the price to pay to give the satisfaction of the advantage of one level of government over the other, is much too high a price to pay. You cannot split the country in such a way even if the issue is great.

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Personally, Mr. Chairman, I cannot stress this point enough, that the very principle of such a process must be categorically rejected.

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

Would the Senator answer a question?

Senator Tremblay: Very gladly.

Mr. Lapierre: You seem to reject the whole referendum process, as well as its principle. Through experience, in a referendum in which I participated, you say that it would lead us directly to division in the country.

Do you feel, following the Quebec Referendum, that Quebec is divided today?

Senator Tremblay: Mr. Chairman, if Mr. Lapierre is willing to face reality, the Quebec population has not yet gotten over the division created by the referendum.

I have noted that in many areas, wounds of the referendum are still just healing.

Mr. Lapierre: Should we avoid all direct appeals to the people? Even an election may create division in families. Should we than reject all direct appeals to the people? According to what you say, everything that divides is essentially evil.

Senator Tremblay: Well, no.

Within the democratic system, the appeal to the people to choose their representatives in one level or the other of government, is already institutionalized and it is the normal process, but, in this circumstance, the difference is that we are compelling Canadians to choose between two orders of government, each legitimate in itself, in order to settle an issue which will constitute a disagreement by definition between the two bodies. The process of democratic elections, which seems perfectly normal within each level of government, totally upsets the system, and one’s conscience, when it creates confrontation between two orders of government.

Mr. Lapierre: Practice will prove the point.

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

The Honourable Senator Asselin.

Senator Asselin: Mr. Chairman, of course the referendum process is extremely difficult to accept within our political tradition, and I must point out to Mr. Lapierre, right now, that the older members of this committee, who lived through the conscription referendum of the forties, can tell you how badly the results divided this country.

There was even a political crisis, if my colleague will just re-read our history. Certain French-Canadian ministers resigned in protest; certain French-speaking members from Quebec rejected the party line, crossed the floor of the House to sit as independents, and Canada seemed split right down the middle.

[Page 26]

Quebec had rejected conscription, while the rest of the country had accepted it. I do not believe that Canada has ever gotten over that split. That was one of the results of holding a referendum in the forties, and if my colleague will follow closely my line of thought, he will admit that the referendum held by the Government of Quebec in May of 1979 was hardly a step toward unity.

In family meetings, we still see division among the members over the issue of the referendum, and especially on its result.

In any case, I just wanted to point out to my colleague that the use of a referendum is an extraordinary measure, for which there must be a major issue.

During consideration of this constitutional proposal, Mr. Chairman, our main objection basically has been that the referendum process would change the very essence of our federalism, and if there is a single measure which might change deeply our federation, it is certainly the referendum process under consideration.

God knows, Mr. Chairman, how those members of Parliament during Mr. Pearson’s term as Prime Minister of Canada appreciated his patience in negotiation, and the depth of his representations to the provinces in order to come to some agreement, and we all know the results that Mr. Pearson, in the short time he was Prime Minister, obtained excellent results in regard to federal-provincial relations.

So people like myself, who sat in the House while Mr. Pearson was Prime Minister, would certainly appreciate his help in the important negotiations that will be taking place between the provinces and the federal government.

Mr. Chairman, the referendum is to serve only in the case of a constitutional deadlock, and yet we have not defined or qualified the parameters of such a deadlock.

What would constitute this deadlock? Would it be the mere fact that the federal government does not agree with one or two provinces on an important issue? Does it mean that only the federal government might decide of the conditions which might constitute a deadlock?

Will the provinces themselves have equal opportunity to determine that a given constitutional situation constitutes a deadlock?

The government, Mr. Chairman, has yet to define the criteria on which it will base its decision that there exists a constitutional deadlock, and if we are still talking essentially of a federation, we should, for the understanding of the partners which are still part of that federation, define those criteria, qualify them, and establish what situation the federal govern-

[Page 27]

ment might consider a deadlock allowing it to resort to a referendum.

Indeed, Mr. Chairman, such a process, as others which we have also been opposed during these deliberations, more often makes the provinces subordinate to the federal government. That is not what constitutes a federation.

Mr. Pratte, a former Justice of the Supreme Court of Canada who is leading a team of jurists in Quebec, stated last month:

The provinces are not subordinate to the federal government any more than the federal government is subordinate to the provinces, and we cannot imagine that one or the other could proceed unilaterally to modify the legislative sovereignty of the other, since such a process would negate the very concept of a federal state.

I am sure nobody will question the juridical competence of Mr. Pratte, who, in my opinion, is one of the greatest jurists French Canada has ever produced.

So in resorting to a referendum process, the federal government is again subordinating the sovereignty of the provinces. It means that the federal government does not accept that the provinces have equal legislative sovereignty as itself, which I repeat strikes at the very nature of our federation.

Mr. Lapierre, in a pathetic intervention, has reminded me from time to time that the government more or less caters to the provinces, because the Senate really does not amount to very much. I had chided you for that at the time. You said that you did not concern yourself with the Senate, and you even added that in your mind the provinces were not your greatest concern. If you want to correct me, you can look it up in the proceedings.

If that is what my young friend thinks of the Canadian federation, what are we doing here, Mr. Chairman?

The injustice created by the referendum process is that it does not give the provinces the opportunity to equally determine what constitutes a deadlock, so that they might also resort to a referendum.

Mr. Chairman, I agreed of course with my colleagues Senator Roblin and Senator Tremblay. I do not want to prolong the debate with further argument, but I must say, before it destroys the very fabric of the Canadian federation through a referendum process which overrides the sovereignty of the provinces, by going directly to the people, the government, in my opinion, should establish the parameters constituting a deadlock, and through those, we could perhaps define the problem created by the federal government, by allowing that if such an impasse exists, we could immediately resort to a referendum.

[Page 28]

That aspect is not clear in my mind, Mr. Chairman, and that is why I cannot accept the government amendment, and that I shall vote against it.

Mr. Lapierre: Will the senator allow questions? Yes? I willingly accept the wisdom and the experience of my learned colleague and in order to make me understand the danger of referenda, he has given me the example of the referendum on conscription.

Perhaps I did not quite understand the formula, or the example you gave, but under this particular formula Senator, if Quebecers were to vote massively against conscription, say next year, it would never be accepted because Quebec has a veto which you and your colleagues wish to throw away.

Senator Asselin: But it would not change in any way the effects produced on the population.

Mr. Lapierre: Well, if that is how you take it!

Senator Asselin: You must not consider only the matter theoretically, but also look at the facts, at its application.

Mr. Lapierre: But that is just it, it would not work, because Quebec would turn it down.

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

[English]

I would like to invite the honourable Perrin Beatty.

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Senator Connolly: May I ask the Senator a question. He is concerned, as I understand it, about a definition of the term deadlock or the criteria which must obtain before a deadlock is in existence. Could I just ask him this, would that not be covered by paragraph (b) of the proposed amendment which in effect brings into play Clause 41(1 )(b), and would the deadlock not have occurred if the number of provinces required to approve the resolution that is passed by the two houses of Parliament have not approved it.

Once that approval by provincial legislature has not been achieved within a twelve month period would he not agree that on that occasion there was a deadlock?

[French]

Senator Asselin: In terms of a deadlock, senator Connolly, of course I think that is one of the numerical conditions. It is not a substantive qualification of a deadlock. What are the major constitutional issues which the federal government might consider so important that, if there were not agreement by the majority of the provinces, they would constitute a constitutional deadlock, forcing it to resort to a referendum? Those are the qualifications, in addition to those that you have described, of parameters which might bring about a constitutional deadlock as you say in English.

[English]

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Connolly. The honourable Perrin Beatty followed by the honourable James McGrath. Mr. Beatty.

[Page 29]

Mr. Beatty: Thank you very much, Mr. Chairman. Mr. Chairman, I listened to Mr. Irwin’s stirring defence of the right of the public to be consulted on issues relating to constitutional change. I believe that I would correctly quote him as saying that he felt that opposition to this particular provision was a sad reflection on our democratic system, that there was so little faith in the public.

Mr. Chairman, those of us who oppose the concept of using this referendum weapon in the constitution as part of the amending formula are being cast in the position of being opposed to the right of the public to be heard on issues related to this constitution.

Mr. Chairman, surely it would be fair for those of us on this side of the table to ask the government’s supporters if they indeed feel that the public has a right, a responsibility to be heard on pressing issues of the day, why then are they not providing in this resolution for citizen initiatives as exist in many countries where citizens who are concerned about specific aspects of constitutional reform would be able to initiate changes either on the constitution or on other areas of public policy. The answer is that they believe that the public should be consulted but the public should be consulted at a time of the federal government’s choosing and not when the public itself would like to be heard.

I would be fair to ask the government why are the provinces not allowed to initiate referenda if the federal government is the dog in the manger, Ottawa, which has lead to an impasse being developed which prevents change from being made to our constitution, which prevents reform from being made. The answer is that far as the government is concerned the public should be consulted when Ottawa deems it as being in Ottawa’s interest to do so, not when it is against Ottawa’s interest to do so; so the right to trigger the referendum should be reserved to Ottawa and not to the other level of government.

Surely, Mr. Chairman, in a system of government such as ours, a federal system such as ours, which is based on the principle of equilibrium, of division of authority between two levels of government, surely if the federal government is to arm itself with a new weapon, it is fair for Canadians to ask why should the scales be tipped in this way to the advantage of one level of government to the disfavour of another.

It is fair to ask the government members when they talk about the need and the right of the public to be consulted, why does the government systematically refuse to have referenda on pressing issues where the public would like to have a voice, such as capital punishment or such as abortion? Against the government has singled out the constitution as the sole area; and only when the federal government authorizes it, will the public be consulted.

Finally, Mr. Chairman, it is fair to ask the government supporters if indeed they feel that the voice of the public on constitutional reform is essential and should be heard. Why do they not listen now to the public of Canada, when the Gallup poll shows that by majorities of two to one Canadians are saying that they want the constitution brought home and they want all substantive changes to the constitution made here in

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Canada and not made in Great Britain; so we find that the principle here is public participation if necessary but not necessarily public participation; that there will be participation by the public when it is to the convenience of the federal government but not when the public may choose to have it, not when the provinces may feel that the federal government is blocking an essential reform.

Mr. Chairman, if the government is serious about wanting to involve the public, if they are serious about their defence of the right of the public to play a role in changing its constitution and in setting the national agenda, then surely they should have been prepared to go more than just part of the way. Surely they should have done more than to simply reserve to themselves a weapon which they would deny to everyone else.

Mr. Chairman, it is obvious that under the provisions of this resolution as it relates to the referendum it is the federal government that would be setting the rules. Is that a fair way to do it when the federal government is clearly the plaintiff in the case that is being taken to the public. It is said, Mr. Chairman, that this will be fairly done because there will be a referendum commission set up which will try to police the activities of both levels of government but, Mr. Chairman, anyone who saw the unscrupulous use of the taxpayer’s money by both Ottawa and the government of Quebec during the Quebec referendum where there was a referendum commission designed to ensure that the rules would be fairly enforced can have little confidence that in fact the way in which the rules are being set up will indeed protect the public from this sort of abuse taking place.

Mr. Chairman, I was the Minister in 1979 who had the responsibility for federal government advertising and one of the first things that I learned was that the Canadian Unity Information Office had bought up every spare bit of space and time in the Quebec media for the fall of 1979, when they thought that the referendum would be. There is no consultation here with the referendum commission. The federal government unilaterally, in some instances using other departments of government as their proxies for CUIO, was moving in to grab all the space and time to ensure that they could have the sort of federal presence which ultimately they had in the spring referendum of 1980. I think it is fair to ask ourselves if this is the attitude of the federal government when it comes to referenda being run, that they are prepared to use taxpayers’ dollars in this way to subliminally influence the results of referenda, do we have cause to believe that a referendum would be fairly run, as proposed by the federal government in this resolution. Surely Canadians are entitled to some assurance that massive amounts of tax dollars would not be used to distort what would otherwise have been the results of the public being heard.

Mr. Chairman, I am not opposed to referenda as part of our system of government. I believe that they are necessary in many instances and I have proposed them myself in a number of instances which I feel are desired by the Canadian people, but one thing is clear about the formula being proposed by the government and that is that by its very nature the only time in which the referendum can be used is when it is going to be

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used in a divisive way. It can only be used as a weapon when some parts of the country disagree with something that Ottawa wants; and then Ottawa says, then we will reserve the right to use this weapon against these provinces who have withheld their consent.

Mr. Chairman, by its very nature then, the referendum weapon being used in this way is divisive, it will pit Canadian against Canadian. Our experience with referenda in this country on two occasions at the national level is that we have isolated one portion of the country, we have pitted Canadian against Canadian; we have divided Canadians instead of bringing them together. The experience in the Quebec referendum is that family members were pitted against other members of the family and that the society was torn down the center by the use of the referendum to try to settle a very contentious issue.

It will be more divisive yet, though, Mr. Chairman, when we find that by its very nature this referendum can be triggered only when there is regional disagreement, only when the divisions in the country are sectional as opposed to cutting across broad spectrums of Canadians.

Mr. Chairman, surely if we are concerned about trying to build a constitution to foster a sense of unity in Canada, to give a sense that we are moving forward together, that we are building together for the future, surely we should not be incorporating in that constitution a device which by its very nature is divisive and which pits Canadians against Canadians; and which is used only exclusively as a weapon by one level of government, by Ottawa, against another government which has sovereignty in its own area.

Surely if there is one thing that we have learned from the various presentations made before this Committee, what we should be looking for if we engage in constitutional reform is proposals that will bring Canadians together, that will bind the wounds, that will convince Canadians in all parts of the country that their concerns are being fairly heard, fairly dealt with, and they had had a chance to participate fully; we should not be incorporating in our constitution a device which guarantees alienation, which guarantees that one portion of the country will be polarized against the rest. Surely that is not in the interest of Canadians.

Mr. Chairman, in summing up, let me say that I believe there is even a role for referenda as a means of consulting the people in constitutional change. If, for example, the federal government had been able to go to the provinces and to reach agreement for substantive constitutional change, it would be entirely appropriate to go to the people and say, do you approve of this agreement which has been reached between the federal government and the provinces. But the government is not proposing to do that.

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What they are proposing to do is reserve the referendum as a weapon to use against a particular section of the country.

I say to you, Mr. Chairman, that the use of a referendum in this way does not serve Canadians, and will serve only to

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deepen the divisions in our country which have torn our national fabric and which needs so desperately to be healed at this time.

Thank you, Mr. Chairman.

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

I have a certain number of speakers who would like to intervene this morning on that important amendment.

I would like to remind them, however, that the same kind of rules we have followed in the past few days should be kept in mind.

The honourable James McGrath.

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

I fully appreciate your concern as to how we use up our time here, given the time constraints imposed upon us by the Order of the House which we all hope can be changed somewhat, albeit moderately.

But I believe, Mr. Chairman, that this is probably in my view, at any rate, one of the most important, if not the most important of the clauses of this bill in terms of its impact on the federal nature of Canada.

I believe we can live, and the federation can survive the unilateral entrenchment of a Bill of Rights, notwithstanding that the Bill of Rights that we have been discussing in this Committee transgresses provincial jurisdiction and upsets the balance of the federation.

But I do not believe—and here, I run the risk of being accused of gross exaggeration or getting overly excited, or getting carried away. Notwithstanding that risk. I do not believe that the federation can survive this kind of referendum device built into the constitution. I mean that.

It is not without significance; Mr. Chairman, that all of the premiers who have appeared before this Committee, without exception, all expressed in one way or another their concern and objection to Clause 42.

Even Premier Hatfield, the most enthusiastic supporter of the government’s proposals, the government’s constitutional package, came before this Committee and said that he does not like the referendum. Premier Hatfield said he will use the two-year period that Mr. Mackasey likes to talk about it to change it.

Nobody likes the referendum procedure, not even the government’s own witnesses. Professor Maxwell Cohen, one of the five witnesses called by the government, as late as last night on national television again expressed his concern and said that the second stage referendum procedure—the referendum procedure being discussed in this clause, should be dropped. It has no place in a federal parliamentary system.

What chance would the provinces have in dealing with a government that has a parliamentary majority, in terms of the power they would have to trigger off this referendum device, this one-sided referendum device.

It makes the federal nature of the country meaningless. Because this referendum device, Mr. Chairman, can be and I

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suspect will be—used to circumvent or do an end-run around the legislatures; the legislature of my province and of every province in the country!

I have listened to Senator Tremblay and my good friend Senator Asselin talk about the divisive nature of the referendum technique.

Senator Tremblay expressed concern that we would be institutionalizing this technique, which by its very nature, is so divisive.

Mr. Chairman, I am the only one at this table who can claim that I became a Canadian by referendum, because ours is the only province that came in federation by way of a referendum; not a referendum decided on by the people of Newfoundland through their legislature, but one unilaterally imposed upon the people of Newfoundland by the Imperial British government.

They did this, of course, rather than run the risk of restoring our legislative constitution. But before they imposed they imposed a referendum on the people of Newfoundland, they first of all convened a constituent assembly, by universal franchise; and that national convention decided what questions should be placed to the people in the referendum.

I can talk about how divisive those referenda were because it took two. It took two to decide the day; and even the second and decisive referendum was by less than 52 per cent. It took years, and years, and years to heal the divisions in families, neighborhoods, villages, towns and cities.

We saw that, and we see it happening in Quebec.

That is what we want to place in our constitution in a federal state, in a parliamentary system?

That, Mr. Chairman, to me poses the greatest threat to this country than any other provision in this bill before us!

Mr. Tobin would be interested in knowing that as late as yesterday, Premier Peckford in a press conference expressed his satisfaction over what we had done in this Committee in addressing the concerns of the people of Newfoundland with respect to the denominational, educational system. But he said there is still another loophole. That loophole is the amending formula, specifically the referendum mechanism. That is a major loophole. Nothing is sacred.

If you take into account the referendum powers of the federal government and couple that with the amending formula whereby we have three levels of provinces, whereby the province of Quebec and the province of Ontario will have veto powers, a small province like Newfoundland does not have a chance—not a prayer!

There is not a premier in this country who will accept the right of the federal government unilaterally to trigger a referendum. The five that appeared before this Committee said so.

It defies the very nature of the federal system in the country—the two levels of legislative authority and competence.

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You cannot continue to have two levels of government and two levels of legislative authority and competence if one of the partners has the right to do an end-run around the legislatures of the other partners.

The legislatures of the country will be nothing but municipal councils. They will be, to the federal government, what a municipal is to a provincial government—creatures of the federal Parliament in terms of rights the federal government would have, given their majority in Parliament to trigger this referendum mechanism. They would never feel secure.

Mr. Chairman, I am going to be moving an amendment which is going to express a concern of mine with respect to the integrity of provincial boundaries; because what is to stop the province of Quebec somewhere down the road, from using their veto power to force a reopening of the Labrador boundary question, which they have never accepted—the boundary between Newfoundland and Quebec?

What is to stop them from using their veto power?

I suppose you can carry it a little further, though it might be stretching the point a little. What is to stop the federal government from using their referendum power to challenge the boundary of any province; to take back Canada lands transferred to the provinces in 1912? That could be the subject of a referendum.

There is no end to what they can do. There is no end to the power they have.

Mr. Chairman, it destroys the very federal nature of the country. And if I have a concern, it is that. Because if we, as a province, had realized in 1949 that our political institutions, the integrity of our legislature would be threatened by a subsequent federal government unilaterally, I submit to you history would have been a little bit different. It may have taken a little bit longer, if indeed it happened at all. That is all it needed.

You have heard witnesses before the Committee telling the Committee why it was necessary to address the concerns of denominational education, because without that the last chapter of confederation would not have been completed in 1949.

That is why the government had to swallow itself whole on the education question—in public: because they knew we were right.

I submit to you, Mr. Chairman, that before we are finished, they may have to swallow themselves whole on this provision as well.

Oh, I can hear the Minister of Justice—wherever he is— saying: “Oh, what about Australia? They have a referendum in their constitution for years—the same kind of referendum procedure we are talking about here: a one-sided kind of referendum which cannot be triggered by the states.”

Mr. Chairman, that may be so, but the Minister forgets to address himself to Clause 9 of the Statute of Westminster. That states that nothing…

…in this Act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on

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any matter within the authority of the states of Australia, not being a matter within the authority of the government of the Commonwealth of Australia.

We will have no such protection, because not only has Clause 7 been violated, if I may put it that way, but it has been repealed.

So much for the Australian argument.

What did Premier Blakeney say?

He said that the instant referendum has all the charm of instant mashed potatoes and must be changed.

He went on to say that it had to be changed to give the provinces concomitant or equal powers if it is to remain at all. All the provinces have addressed themselves to that.

And what about Mr. Gordon Robertson—the dean of the mandarins, the most respected of the mandarins, a man who has been an adviser to successive federal governments on federal-provincial negotiations for more than a generation, the former Clerk of the Privy Council, what does he say?

Just a few weeks ago in this very building while we were meeting here, this is what he said:

Section 42 proposes a system of amendment that would not, it seems to me, have regard for this equality between the legislatures because it is an option that is available only to the federal side. To put it another way, it is possible under Section 42 for the federal authority to propose an amendment that would attack or limit, or reduce the powers of the provincial legislatures.

And I thought I was exaggerating!

Mr. Chairman, how can we ignore this? I am sorry Mr. Nystrom is not here—oh, I see Mr. Nystrom.

What had Mr. Nystrom to say about Clause 42 when the resolution was before the House? Nothing has changed since that time, Mr. Chairman. Indeed, if you look at the news out of Honolulu yesterday, Mr. Nystrom’s concerns on Clause 42 in this whole package should have been reinforced.

Here is what Mr. Nystrom said on October 7 at page 3343:

I hope members will study Section 42 very closely and will listen to my remarks very carefully. Under that section the federal government has the power to go over the heads of any legislature and conduct a national referendum by itself on any constitutional question whatsoever.

And then he goes on to say:

I think that is very dangerous in a federation where there are two powers, federal and provincial powers that are partners which should be sharing.

And he goes on to say:

I say to the Prime Minister and the Minister of Justice that under Sections 42 and 46(1) indeed the government of Canada has the power to go against the wishes of all the legislatures and all provincial parties of this country

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and appeal directly in a referendum where it controls timing, the money, the funding proposals and the wording of the question. It will write the question.

And he goes on:

In other words, it sets the rules. It is a loaded dice. That is not right. And that is not proper.

And I say to Mr. Nystrom, amen! That is not right; that is not proper.

I hope Mr. Nystrom will put his money where his mouth is and vote against Clause 42 and vote to support our amendment to delete this reprehensible federal-destroying section of the constitution which has no place in a federal parliamentary democracy.

Some hon. Members: Hear, hear!

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

I would like to say that the Chair is very open to any intervention on the merits of that proposed amendment, and of course, on the main significance of Clause 42.

I would not like my words to be interpreted, though as an invitation to honourable members not to speak on that very clause, because as you have said properly it certainly is one of major issues that this Committee has to report upon to the House of Commons and to the honourable Senate.

I would like at this point to invite the honourable Bryce Mackasey, followed by the honourable Ray Hnatyshyn.

Mr. Mackasey: Thank you, Mr. Chairman.

My intervention is a result of some of the remarks specifically of Mr. Beatty.

I would like to say that I understand the importance and significance of the referendum. I can understand the vehemence of members opposite or anybody who for reasons of principle do not approve of our referendum.

I do not question Mr. McGrath’s version of history. It is his freedom. He debates in his own style. Sometimes I listen to him with amazement; and more often I am deeply impressed by his wisdom. I appreciate debate.

I resent, however, Mr. Beatty’s disported analysis of the participation of the federal government in a referendum in the province of Quebec. There is a fundamental difference.

It seems to me one of the things which has been creeping up in recent weeks, not only around the table, but outside, listening to the hot-line on Sunday, that somehow the federal government and the Prime Minister of Canada and members of the Liberal party should apologize for endorsing, one, the concept not only of federalism with strong regions, but the federal system with a strong federal government.

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I never thought the day would come when we would be apologizing for our views that most Canadians want to see an effective, efficient, strong federal government.

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I find myself appalled listening to radio hotline shows that suddenly the Prime Minister of Canada is the enemy of the federal system, that somehow through referenda, the amending formula, through amendments to the constitution, that Pierre Elliott Trudeau is dedicated to creating a republic. I heard that the other day, Mr. Chairman, as much in order as some of the things that I have heard recently here in the last half hour.

I am appalled, for instance, at people who are not satisfied it is not only going to be a republic, it is going to be a French republic. Memories are short, Mr. Chairman. This is the same Prime Minister whose personal intervention on the side of the federal forces in the last referendum tilted the balance of that referendum. Hardly the action of a gentleman who is not firmly committed to what I think all of us around this table view as a great country and we want to see it remain that way.

Now, what is Mr. Beatty talking about in a referendum? He is saying in effect that the federal government cannot be trusted, and he is entitled to that opinion, but what are his reasons for saying we cannot be trusted? He is saying we cannot be trusted because of our actions in the last referendum. He talks about the mass of millions that the federal government spent on billboards, newspaper advertising, radio and television, as if the federal government did not have a very fundamental role to play in that referendum.

Mr. Chairman, this was not a referendum to change a zoning law, this was not a referendum to abolish outmoded regional liquor laws which we have in this country periodically, this was a referendum the purpose of which was to destroy the federal system as we know it, to get the endorsation of the majority of the people of Quebec to a concept of opting out of Confederation, independence, or, more precisely, separation.

That was the purpose of that referendum and to suggest the federal government had no role to play in defending federalism as we understand it is rather naive on the part of Mr. Beatty. It does show at best a woeful lack of understanding…

Mr. Beatty: Mr. Chairman, on a point of privilege.

Mr. Mackasey: Of the rules of the game that the Quebec Parliament pronounced on.

The Joint Chairman (Mr. Joyal): I am sorry to interrupt the honourable Bryce Mackasey. The honourable Perrin Beatty has a point of order.

Mr. Beatty: Mr. Chairman, as Mr. Mackasey will know, unlike him I have tried to refrain in the past from interrupting him while he is speaking.

Now, Mr. Chairman, Mr. Mackasey has a right to disagree with anything I said, but all members of this Committee have a responsibility to not misrepresent what another member has said. I did not at any point say that the federal government did not have a role to play in defending federalism or did not have a role to play in the referendum in Quebec. Mr. Mackasey just said that that is what I had stated and I would invite him to take a look at the record, I would invite him to withdraw those comments once he has done that.

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My statement, Mr. Chairman, related to what I felt was a totally improper use of federal advertising money outside of the referendum rules in Quebec which were not authorized by the referendum commission in Quebec. I did not, and I repeat, I did not suggest the federal government did not have a fundamental role to play in defending the federal system.

The Joint Chairman (Mr. Joyal): Well, if the honourable members want to involve themselves in such a discussion I will refer them to a decision that was rendered by that very commission and that might be a good point to look into if they want to deal with that very question because when there is such a very important issue and there is already a decision that was rendered by that very commission and that might be a good point to look into if they want to deal with that very question because when there is such a very important issue and there is already a decision that has been given by that very commission on which expenses should be allowed and which expenses should be prohibited, there have been some rules and there has been sections of the proposed referendum act and there has been decisions made public by that commission and I think if one wants to comment very specifically and help other honourable members to make up their mind on that very point, you have to be very precise on that aspect and that of course is just what I suggest to the honourable members very humbly; but I think that is in all fairness for the debate that we have and for those honourable members who have not had an opportunity to go into that problem as deeply as some honourable members have had an opportunity in the past.

Honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, I have great respect for Mr. Beatty and I was left with the impression that he said we had no role at all, and I gladly withdraw that, because I am sure he did not say that. He questioned the role we did play, however, and I am questioning his naivety on that role, to suggest for a minute that the federal government should not have anticipated the need for communications in that province to advance the cause of federalism, to give the federal message in a referendum that was not limited in its impact to Quebec but had dire consequences for all of Canada I suspect would have been highly criticized by the Canadian people and the so-called Gallup poll, which Mr. Beatty paid such credence to.

What would the Gallup poll reaction have been, Mr. Chairman, had we remained aloof, entirely aloof, had the Minister of Justice not formed part of the…

Mr. Fraser: Point of order, Mr. Chairman.

Mr. Mackasey: Mr. Chairman, on a point of privilege.

Mr. Crombie: On a point of sanity.

Mr. Fraser: On a point of common sense, Mr. Chairman.

Senator Austin: Mr. Fraser has an argument, not a point of order.

Mr. Fraser: I just want to ask a question. What has what the federal government did or did not do in the Quebec referendum in terms of the points Mr. Mackasey is making

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and the fact that he says they were justified in taking part, what has that got to do with whether or not a referendum system of changing the constitution of Canada—where is the relevance?

The Joint Chairman (Mr. Joyal): On the very point of order as raised by the honourable John Fraser, the Chair would like to remind honourable members that when there is a proposed amendment on the table, that the Chair has always invited in the past days the honourable members to take part in the debate, to restrict their comments to that very amendment and when they refer to other authorities or other acts of Parliament or other acts of legislatures or other comments, that it be in the proper context of voting yes or no to a proposed amendment.

The Chair of course is not opposed to receiving arguments as put through by honourable members in support of their ideas or views or comments, but they should do it in a moderate way and the Chair cannot allow complete new debate on what should have been the role of the federal government on one issue or the other or if some decision of the government is questionable or not on another issue.

That is what I said just a moment ago when the honourable members wanted to open a discussion or debate on what role the federal government has played in the past referendum. They should do it in the way of what should be changed in that proposed amendment and if there is no relationship between that amendment and some other decisions of the federal government, well then, the Chair has to intervene and raise the issue.

However, at this point I think that the honourable Bryce Mackasey wanted to pursue in the proper context those issues that are at stake in the proposed amendment.

Honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, I resent points of order that are not. They are at the best an argument. And I might point out to the Chair and to the members that I am pursuing a point raised in this debate by Mr. Beatty, who used the participation of the federal government in, specifically, for instance, advertising last fall as an example to the Canadian people that the federal government could not be trusted to act objectively and honestly and impartially when and if they felt that a referendum was needed.

One of the arguments advanced by Mr. Beatty, I do not question his right to raise that argument, against the referendum was that the federal government could not be trusted to act impartially because of its position in the federal government. That was the point of Mr. Beatty.

To substantiate the strength in his argument he uses an example a federal participation in the Quebec referendum. That is the point I am reputing. I am saying, and I repeat, to Mr. Fraser or anyone else who is not here to hear the answer but whose purpose was to intervene and break my train of thought, he has not, he has reinforced it, it would have been naive and silly and stupid of the federal government, knowing the rules that embraced that referendum, not to have taken the necessary precautions to make certain that if needed mediums

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of communication would be at his disposal. It did so, it had the wisdom to do so, had the initiative to do so and had the foresight to do so, and quite conceivably could have been the difference in the outcome of the referendum which I stated, for Mr. Fraser’s benefit, was not something dealing with liquor laws or zoning but with the very nature of our country.

As a Liberal I resent having to be on the defensive now that the federal government spent money to offset the propaganda of the Parti Québécois.

As I recall those rules, Mr. Chairman, I am sure the Minister of Justice would want to talk on it later, Mr. Chairman, the rules were such or attempted to be such by the Quebec government that there would be no federal participation per se in that Quebec referendum and we respected those rules meticulously to the point that the federal participation in that referendum had to be and was within the umbrella set up under that legislation.

Mr. Clark’s valuable participation in Quebec, the Minister of Justice’s valuable participation in Quebec. Our advertising as a form of participation in Quebec. All was done within the rules, the legality, the umbrella, the package which was clearly designed and effectively designed to remove any federal presence from that particular debate. Indeed, Mr. Chairman, if those rules had not been meticulously respected by the Prime Minister of Canada, by the Minister of Justice, by members around this table, our participation would have been a hundred fold. We respected those rules and the advertising budget that Mr. Beatty resented was better spent, as far as I am concerned, in that referendum than some of the things done through their paid hirelings in Ontario later on when they set up their umbrella organization to dispense their political advertising package.

Mr. Chairman, we do not have to apologize to the Canadian people or to Mr. Beatty for the role which we played in that referendum. The role played by Mr. Trudeau, and Mr. Chrétien particularly, as our representative, was a valued one, was a noble one, was one in the best tradition of a party that is dedicated to federalism as we understand it with a strong central government and strong provincial parliaments.

Some hon. Members: Hear, hear.

Mr. Mackasey: Mr. Fraser’s rudeness is something that has been heartily appreciated around here, heartily, I suggest, the same Mr. Fraser that I have known for a couple of years. In those days he had the decency and courtesy to remain silent, and if he had a question or observation to raise it after an honourable gentleman had completed his contribution. I do not know whether he is picking up his bad habits from the gentleman to the right of him.

Mr. Fraser: I am just picking up the bad habits because I have had enough of it.

Mr. Mackasey: Well, maybe you have. I understand, if you share Mr. Beatty’s views, that you have had enough of them to suggest that we should apologize for participation in the

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Quebec referendum by leasing television time, radio time, newspaper time, billboard time in a referendum which, I must repeat, the effects of which were not limited to the Province of Quebec, which affected Canadians right across this great country of ours.

Now, Mr. Chairman, I will end on that note. Yes, and I would imagine if I were sitting where the opposition is I would be very happy because they must be very uncomfortable spreading continuously through those types of interventions the impression with the Canadian public that somehow the federal government cannot be trusted to act decently and above board with the Canadian public in any referendum coming out of Ottawa and using as an example of the mistrust and distrust which Canadians should feel, our participation in the Quebec referendum.

If anything, I wish we had worked a little harder.

Thank you, Mr. Chairman.

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

I want to be clear on that because I think as I said earlier in answer to Honourable James McGrath, it is a very important issue and when references are made to some decision taken by provincial authority or federal authority or government authority in terms of government spending or spending public funds, I think when there is an opportunity to relate to specific decisions as was said earlier in this debate, I think the Chair should welcome such an opportunity because it makes our discussion much easier when we can refer to specific, as I mentioned, decisions as there were some in the referendum issue in Quebec around what was admissible or not admissible in terms of spending of public funds. There has been specific legislation and decisions by the proper authority in that respect and one can always of course question the discretion of the use of those funds, I think it is proper for all honourable members who have to vote those funds to do so, but they have to do so in the context of the legislation and the bylaws and regulations that are adopted to rule on that point.

I want to say in all simplicity to all honourable members, because it will make our decision and discussion much easier when the time to vote is called.

The Honourable Ray Hnatyshyn.

Mr. Hnatyshyn: Thank you, Mr. Chairman.

I fully concur in the remarks and direction that you have given to the Committee because I think Mr. Mackasey’s remarks have willy nilly really underlined some of the points that I wanted to make, and I did want to raise certain points that I think have not been covered with respect to the question before us, that is the discussion of the general principles of referenda and the application in a parliamentary system, but more particularly the provisions of the package that the government has put forward in the amendment of our constitution.

Now, Mr. Mackasey has gone to some length to put up a heroic defense of Mr. Trudeau, and I understand that, it is an understandable reaction, and that somehow there have been

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some suggestions outside of this Committee that Mr. Trudeau cannot be trusted. I do not think that is the question here at all. I think we are looking at the principle of the matter and I accept Mr. Trudeau’s firm, firm promise that he is going to resign shortly so that I do not think we should be dealing with the fact that we are going to have to deal with Mr. Trudeau, we should be looking at in principle exactly what is involved with the federal government, whether or not this particular provision in fact does, as I suggest, constitute a very substantial change from what we now have in our country.

I want to simply make the point that our experience in Canada, and I think we have a right to look at the historical background of referenda in Canada, has been less than exemplary.

The instances with which we have dealt in national referenda in this country have involved a couple of issues, one is conscription that has already been alluded to; and the other, just before the turn of the century, dealt with the whole question of prohibition. The strange result of our experience in those particular instances, unfortunately, has been that it did in fact isolate one part or one region of the country, and Mr. Mackasey looks at his cup and I know that it is coffee, but the fact is that that is one of the problems I see in terms of referenda in principle which are dealing with issues, some more important than others, or some less important than others, is that they in fact do have repercussions.

Our recent experience with respect to the Quebec referendum is another example. I hear now support for the concept of referenda but I remember only a short time ago that members on the government side expressed concern, members from Quebec and people in Quebec had expressed concern over the whole question of the fairness of the referenda. And we remember, I can remember very clearly the long discussions and great concerns that were expressed about the wording, the mere wording of the referenda that took place in the Province of Quebec, because I think that when we talk about referenda it is very easy to slide into the defense of referenda to say that anyone who has any questions with respect to that form of action is against dealing with the people or allowing the people to have a say.

However, of course, the other extension of that is that there should be a referendum on almost every issue that goes forward to make sure that the people in parliament and our parliamentary system are accurately reflecting the majority point of view.

What we have in Canada today, we have a situation where we have a constitution of the British North America Act, we have now developed over a course of years firm conventions with respect to the amendment of that constitution and those conventions are very simply stated: where any amendment involving the rights of a province or provinces generally is being proposed the convention has been developed, we have this from independent evidence before us, we have it from judicial and constitutional experts, the convention is very clear that where those proposals are going forward now there must be the consent of either the province involved or, indeed, of all

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provinces if we in fact are going to make amendments which will affect all provinces.

What we have now in this proposal, we have I suggest to you a very substantial departure from that fundamental principle that now exists in Canada, and I do not think we should delude ourselves, we should not try to hide behind the argument that somehow a referendum is only for the purpose of breaking deadlocks. I reject that absolutely, there is absolutely no deadlock breaking aspect to this particular proposal, absolutely none.

What I suggest to this Committee is that we look at it, it is clearly part of an arsenal that is available to a federal government of whatever stripe or colour, that they know that notwithstanding all the negotiation and all the discussion that is going to take place with the provinces with respect to any proposal, that indeed will change the balance of powers, that could indeed change the very method of amendment of our constitution, that could change the fundamental principles of our country, any federal government knows that eventually they have the ability and power to implement unilaterally, and without any reference to any of the provinces, a nationwide referendum on a particular issue.

Well, what is wrong with that? One may ask the question rhetorically. I will tell you what is wrong with it and this is one of the points that I think has to be reinforced in terms of our consideration. When we are dealing with a referendum we are dealing with a kind of device which asks people in Canada to answer yes or no. Essentially that is it. It is possible, I suppose, to have a referendum, going into a ballot booth and pulling a lever and marking off or checking off certain options; but that is not the normal process as far as a referendum is concerned. What normally happens is that people are asked yes or no to a particular proposition or indeed, which I think is more likely, to a series of proposals or to a package which is presented by the federal government.

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We know, having sat on this Committee over the course of the last weeks, how complicated and devious the implications of some of these proposals may be, in fact. We have been enlightened by expert evidence and witnesses with respect to particular proposals and have come to appreciate the implications of some of the measures that we are now bringing forward.

So let us put ourselves ahead and say that if this passes in the way that is now being proposed by the federal government and a proposition or a package is put forward with respect to amending certain aspects of our constitution, let us assume that it is deemed in the national interest, Mr. Chairman, that the federal government considers that there should be a change in the powers between the federal government and the provincial governments with respect to the ownership of resources. In other words, that the federal government for the national good should acquire more rights with respect to ownership of resources across the country regardless of provincial interest at the present time. At the same time another

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matter under discussion may be the whole question of a review of this particular amending provision.

In other words, the question may be dealing with a simple question with respect to ownership of resources; another issue under discussion may deal with whether this amending formula is too difficult, too time consuming, maybe the federal government in its wisdom decides that they have a responsibility to carry it out and therefore we should shorten the time limit and in fact allow for arbitrary reference to the people at any time by the federal government without any time lapse or preliminary opportunity for discussion or consensus by the provinces.

These two or three items could be put on a ballot and the people would be asked the question, are you in favour of the federal government’s constitutional amendment proposal, yes or no.

Now I ask you, Mr. Chairman, it may be that some of us may be very much opposed to the proposition with respect to the ownership of resources, in my example. On the other hand it may be that I would support some proposal that would allow a less cumbersome, expensive method of dealing with the referendum. How am I to deal with that particular matter? How am I to deal with that issue in a simple yes or no vote? Is not the person who is proposing the package in a definite position of advantage? They want to get passage of both those propositions. If there happens to be a particularly emotional debate taking place at the time with respect to ownership of resources or the availability of those resources for all of Canada, we know the argument.

What I am saying is, you take any issue that you want whether it is capital punishment, the right to life, and you ask people by way of referendum whether the constitution should be changed with respect to those issues, because the proposals that we put forward leaving it to parliamentary consideration were defeated, but let us assume that there is a proposal with respect to capital punishment. The persons voting in favour of capital punishment, are they voting in favour of capital punishment for any number of offences from mere theft to a capital offence such as murder. The complexity of that particular issue alone demonstrates the point that I am making, why we should be very careful with respect to the rules and the ability of any government to initiate a referendum.

I say my feeling is that if we have this proposal going forward what we are going to see in the future in the provinces, particularly the provinces such as my own in Saskatchewan, the prospect, because we alone are not of any consequence in the total referendum proposition or the proposal for amendment by consensus before a referendum comes forward.

In my province, any provincial Premier worth his salt if he thinks he is going to get left out of this picture is going to set up his own competing referendum; I can guarantee it; and we are going to have a series of referenda in this country that will make the number of elections we have had in the last past couple of years look like mere child’s play.

What kind of expense is that going to put to the Canadian people? What kind of expense are we involved in, in a referendum. I think that that is an important issue for us to consider

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in general principle, when we start to decide how easily it will be available to any government. Some assessments have been made with respect to the cost of a general election, in the vicinity of 65 million dollars being the current price for a federal election. We are going to have the same cost involved every time a referendum is triggered in this country.

I think the point has been well taken. We have had absolute opposition to the concept here as proposed by the government by a substantial if not majority number of witnesses coming forward, particularly, I think this is most significant, by the Premiers who appeared, as Mr. McGrath has pointed out so well, before this Committee. If you look down at the position this issue of referendum was not discussed at the First Ministers’ meeting, it was not an item under consideration, and as a result there was not an opportunity for the fullest discussions by the provinces at that time. But if you look down the list at the positions that have been taken in response to this proposal, there is absolute unequivocable opposition by all of the provinces, Saskatchewan, Ontario—Ontario, I think we slide over Ontario’s position vis-à-vis this particular issue. Ontario very much supports the proposition in its response that it should be only available provided you have certain minimum number of provinces who agree to that particular proposal going forward. The same theme runs through the opposition from every province that has voiced its opinion with respect to this provision. Prince Edward Island, we know about; Nova Scotia, we know about; New Brunswick, we know about. Every province, I venture to say, is opposed to this particular proposal.

So what I say to you, Mr. Chairman, trying to make some points that I think have not been touched on yet, and that is really the reason for my intervention, is the referendum is a very particular device in democracy. Constitutional experts have pointed out that in terms of constitutional amendment a referendum is not useful; in fact it is counter-productive in most instances because it tends to bring forward divisions when a country rather than develop a consensus upon which a constitution must be based. Certainly it seems to be common sense that a referendum’s only reasonable use is by way of garnering an affirmation of a consensus that has already been developed between different levels of government.

That is a time when I can understand having a referendum to go out and say your federal government and your provinces or the vast majority have come to this conclusion, and want to put it before the people. That is an opportunity for people to come together at the ballot box and affirm a consensus that has developed.

As I said at the outset, our experience with referenda in the past with respect to the conscription issue, with respect to the less important matter of prohibition, simple propositions such as prohibition have caused to underline some of the differences we have in this country as opposed to bringing us together; and that is I think my concern and the concern of members of my party, particularly those of us in western Canada.

Again, I do not want to belabour this particular point, but there is a feeling in Western Canada, Mr. Bockstael will know from Manitoba, a sense that we are being left out of things, and that is one of the concerns that I have in dealing with the

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whole question of the formula that was going to be available to us in Western Canada with respect to some of the provinces not quite as popular; but I tell you that a combination of the fact that we in Saskatchewan and those in Manitoba and those in Alberta are not going to be crucial players in terms of constitutional amendments; together with a proposition whereby, even on a referendum provision, means that we are really out of the picture is not going to sit well with my constituents or people in my province because we want to feel in Saskatchewan and other parts of Western Canada that we are part of this federation, that there is in fact a place for us, that we can in fact initiate or be consulted or be involved in the process. I ask each of you to canvass your own thoughts and hearts about what your position might be if the province of Quebec was not given a veto power, not given an ability to participate in it; if the Province of Ontario was not involved in the whole process of amendment of the constitution.

I think that you understand then some of the feelings on Western Canada that we want to participate, we want to be involved. We think there should be a rule that will allow us to participate because we get it every way. We do not have the clout in terms of the number of seats in Western Canada. That is part of the frustration. There has been a lot of discussion about proportional representation, how that would somehow deal with the matter. The possibility of an elected Senate or equal representation in a second chamber has also been put forward. These proposals go the other way. They diminish and lessen in terms of Western Canada the rights that every citizen in that part of our country is going to have with respect to the foundation of our country.

I want to put out that caveat and warning and that is why I am in personal opposition to the proposals put forward here because I do not think it serves my province, I do not think it serves my constituents. I think it is not the kind of fair provision that I would like to see in this package, and that is why we have been trying to support amendments that will in fact allow reasonable equality for all citizens regardless of geographic location.

Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Ray Hnatyshyn. I would like to invite Mr. Brian Tobin.

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

Mr. Chairman, I just want to comment briefly on remarks made by my colleague from Newfoundland, Mr. McGrath, in talking about the referendum. He particularly stressed that he believed it to be a divisive mechanism and referred to the referendum in Newfoundland. I was not around in 1949 to comment personally on the referendum in Newfoundland and I do not doubt for a second the great passion expressed by Mr. McGrath in his strong personal conviction that it was a divisive question and a divisive battle. I know he speaks from his heart when he says that.

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What I want to do is to offer a different perspective of referendum and it is because I was not around in 1949, because I was born I suppose a Canadian. I sit today in the House of Commons as the only M.P. sitting now today in the House of Commons from Newfoundland who was born a Canadian. All other M.P.’s from our province were born previous to 1949. So I want to offer a perspective perhaps if I can that may be representative of my generation and my age group with respect to referendums and the question of whether or not a referendum is divisive and if it is divisive how long is it divisive. I do not doubt, Mr. McGrath, it was a great battle. It has often been called the great battle of Confederation, and I know there are probably still some people today in Newfoundland who find it difficult, not many, but some people who still find it difficult to accept the results of 1949 after two referendums, very close referendums.

Nevertheless at that point in our history, a crucial time in our history, the referendum answered a very important question and more importantly, Mr. Chairman, through you to Mr. McGrath, the referendum and the voters on that question in 1949 answered and gave to my generation who did not participate, who were yet unborn, a degree of stability. You answered that question; years and years Newfoundland had I suppose perched on the edge of disaster.

I am talking about Newfoundland, Mr. Fraser, that is where I come from.

The Joint Chairman (Mr. Joyal): Order. As the Chair has said earlier, the Chair is really open to invite any honourable members who want to participate in the debate and I would be certainly very happy to invite the Honourable John Fraser to take a part in this debate after Mr. Tobin has completed his speech but I think at this point I will have to ask honourable members to listen to what Mr. Tobin has to propose to us.

Mr. Tobin.

Mr. Tobin: Mr. Chairman, I am simply trying to comment on this question about divisiveness. The point I make is that, yes, a referendum is divisive, there is no question of it. What I am saying is that a referendum oftentimes puts an end to a malignant kind of destructive debate that, if it is not brought to a satisfactory and a final conclusion, can in fact even more than referendum in itself, for years, perhaps for generations, turn brother against brother, sister against sister and turns society on itself. That is a worse cancer, not resolving the question that brings out the deepest emotions of people, whatever the question may be, and I submit that a referendum should only be used in the most important kind of questions.

Mr. Chairman, what I am saying is I was not there in 1949 and in my province today there are thousands and thousands and thousands of us who were not there in 1949. That very difficult period was resolved by our parents and by our forefathers, by those who went before us, by those now living, and I thank them for that. I know it was a difficult time but because that question was resolved and because for the first time in Newfoundland’s history, in 1949, in many years, we had some sense of stability; some sense of being a part of a country; some sense that we knew where we were going to be five years down

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the road or ten years down the road; some sense of we will have a democratically elected government; we will be able to participate in a democratic system; we will not have governors or commissioners appointed from London to run our affairs; we will or we will not be bankrupt we do not know; we will have a level of service comparable to what any citizen in North America in a resource rich part of the world can expect, to depend on that, for the first time.

I say to you, Mr. Chairman, I was thinking as Mr. McGrath was speaking and it struck me, being my first year as an M.P., being a new M.P., because I have been attending this constitutional committee in these deliberations, on many occasions and just weekends past, recently, I have been to my riding and to public events, I always feel very proud that it is traditional at the end of the evening to sing “O Canada” and I notice because I look that not only people my age, born since 1949 are singing “O Canada, our home and native land” but those born before 1949, those who participated before, those who participated in the referendum question in 1949, whether they voted yes or no, sing with pride and with their chests stuck out “O Canada, my home and native land”.

Mr. Chairman, what I submit to you is that while it is easy to reflect on the past and find examples when at a particular point in time in history a referendum was divisive, that may be true. It is important for all of us to remember that when we write a constitution, when we talk about referendums, we not only prepare a package and prepare the way for ourselves, in our lifetimes, but for generations yet unborn.

I say to you, Mr. Chairman, in Newfoundland today those of my generation in particular but certainly the massive majority of Newfoundlanders in retrospect are united not in their commitment to any particular party or any particular idea but certainly in their commitment, as I know Mr. McGrath himself is, as Mr. Jamieson is who fought against Confederation in 1949, are united in their commitment to their country and it is called Canada.

Mr. Chairman, that kind of commitment, that kind of stability, that kind of unity exists today because of the tough, hard and difficult decision and the divisive decision made by Newfoundlanders in 1949 as a result of a referendum.

Thank you, Mr. Chairman.

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

Do I understand that honourable John Fraser would like to participate in the debate.

Mr. Fraser: Mr. Chairman, I will be very calm and quiet and reasoned. I want to say this, Mr. Chairman, there is probably no single part of the constitutional package that is more divisive than this particular referendum formula.

An hon. Member: Hear, hear.

Mr. Fraser: I have listened to people talking about the Quebec referendum; I have heard reference to the referendum during the war on conscription; I have heard reference to the Newfoundland referendum and I have to say to you, Mr. Chairman, and I say this very calmly and quietly because I do

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not want to invite any sort of outburst that I probably deserve because occasionally I have lost my patience this morning and for that, Mr. Chairman, I apologize and I apologize to the honourable members.

But I have to say this, all of that is utterly irrelevant to what we are discussing. We are not discussing a Quebec referendum; we are not discussing the foolish notion that some part of this country can separate from the other; we are not discussing the question, which was not foolish, as to whether or not the sovereign and independent Newfoundland would become part of Canada; and we are not discussing the question of whether or not while our troops were getting massacred in Europe because they did not have sufficient reinforcement, the Liberal Government of the day should be allowed to be relieved of its promise not to send conscripted troops overseas. That is not what we are discussing.

It is not for me to go back into those debates. Those debates, so far as Newfoundland is concerned, are very happily over. Even though I know the tensions were very high in that debate I am very glad that Newfoundland came into Canada and I am very glad that Newfoudlanders are here with us as Canadians.

An hon. Member: Hear, hear.

Mr. Fraser: So far as the referendum debate in the Province of Quebec, I choose my words very carefully because I have not any doubt how that debate divided people. I, of course, believe very strongly that it was necessary for the country that the outcome be what it was. I do not want to go into that and I do not want to hurt people who are on either side of that debate. I certainly do not want to hurt people who are on the losing side of it, but comments of any sort except to say that I hope from now on that they will not feel it is necessary to go through that again—I certainly am not going to go back into the conscription debate because people of courage and strong views took very different positions especially in the Province of Quebec. What I am going to say is that those are three debates that we had under a referendum which did create terrible tension, very divided opinions; but having said that and no matter how you want to go back and look at them and say the results were right or wrong, what I say is that it is irrelevant to what we are now debating because, Mr. Chairman, what we are debating now is whether or not it is appropriate, given the federal system that we live under, for the federal government to take into itself by unilateral action and without the agreement of the provinces, a formula by which the federal government can initiate a referendum and conduct that referendum against the will of the provinces, to go over the heads of the provinces and legislatures of the provinces and camouflage the whole exercise by saying: “Why should you complain? We are going to the people.” That is what we are talking about.

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I have listened for a long time, Mr. Chairman, and albeit I confess not with the patience I should have exercised and with the patience which you would have had me exercise—and you have correctly chastised me for that, and I agree with that, but it has been extraordinarily difficult to maintain my patience;

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because I am a Westerner. I am also a Canadian citizen, and I am a strong believer in a strong federal government, a firm believer in strong provinces.

But what I have to say—and what honourable members are missing in this debate is that what is being proposed is to give to the federal government the power, when it cannot get its way by virtue of the amending formula under Clause 41, whatever form that may take after two years, to go directly to the people.

Now, that sounds very democratic.

The reason this is there is that the Prime Minister said, “We can not afford to have a deadlock. We have to break the deadlock.”

It is not just the Prime Minister who has said that, Mr. Chairman. It is all my Liberal friends. Now, that is a deadlock? A deadlock, in the words of my Liberal friends on this Committee, and in the mind of the Prime Minister, the Right Hon. Pierre Elliott Trudeau, is when nobody else agrees with the federal government. That is what a deadlock is.

The consequence of that is that no matter what happens under the ordinary amending formula in Clause 41, that I suppose it is going to be the Victoria formula; but it does not matter; it still respects the integrity of the legislatures of the provinces. What we are being asked to do here is to approve a system, a referendum system was a fair way of coming to a decision to make changes in the constitution. I do not happen to agree with the Victoria formula; nor does my party, but putting that aside for the moment, what I do not understand and what has not been answered to me here in this Committee is this; why put Clause 41 forward at all, if the federal government is not prepared to abide by it?

You know, whether you agree with the Victoria Consensus or the Vancouver Consensus, it does not matter.

But the fact of the matter is that both of them respect legislatures; both of them respect provinces; both of them respect the fact that there are provinces and that there is a federation which is based upon some kind of partnership.

Now, I dismiss the Victoria formula because it makes some provinces more equal than others, and I think that is wrong, which says that when the federal government cannot get its way under Clause 41, then it is a deadlock.

Now, Mr. Chairman, I say, through you to my honourable friends, that just is not going to go down in Western Canada, or for that matter, I do not think it will go down anywhere else.

This is the most arrant foolishness that I have ever seen since I came here in 1972; and some of my colleagues around the table who have been here longer may say they have seen a lot more foolish moments.

Well, I would not be surprised.

But this is the most foolish moment I have ever seen.

You see, if the federal government, in its wisdom dives us Clause 41, which is the Victoria formula and which says that there must be agreement in the legislatures of certain prov-

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inces under the formula that is there expressed, then surely, Mr. Chairman, they must have thought that.

But even if you take the Victoria formula, which is the basis on which Clause 41 is before us, what I am saying is that why was this put forward to us, if the federal government did not believe that was a fair way of making a change in our constitution.

Now, if it was a fair way—and as I said some days ago, Mr. Chairman, as you will remember—if that is a fair way, then why do we have to have a referendum?

Again, I come back to it. Because the Prime Minister and his colleagues around this table say: “To break a deadlock”.

Mr. Chairman, the awful tragedy of that reasoning is that it ignores the fundamental question of “What is a deadlock?” A deadlock, given what we have to face here, what we have had put in front of us, is when everybody disagrees with the federal government!

Now, if everybody disagrees with the federal government under an amending formula which surely the federal government thought was fair, then why does not the federal government accept that verdict? Why does the federal government not accept that verdict? The federal government is not prepared to accept that verdict.

The federal government says: “Oh no, we have to have something in reserve!” and what the federal government is saying is, “If we cannot get our way, if we cannot get two of the legislatures in the western provinces representing provinces that have more than 50 per cent of the population; if we cannot get Ontario and Quebec; if we cannot get the appropriate provinces representing certain populations”—no longer will it even represent certain populations in the Maritimes—“If we cannot get it that way, all those legislatures turn us down, then we will go to the people”.

Why does the federal government want this power?

The federal government wants this power because the federal government has put in front of us a proposal, which frankly, demeans the dignity of the provinces. The federal government has said, “We will go through the amending formula—Clause 41; but only as long as we can get our way. The moment we cannot get our way, then, of course, we will unilaterally move to a referendum system.”

What does that do? All of the power lies with the federal government. The partnership that has brought this country together, the partnership which brought the English-speaking provinces together with Quebec, is destroyed.

There is no sense of partnership anymore; because more than any other single issue in this whole proposal, this particular clause—Clause 42 which gives the federal government the sole right to hold a referendum—profoundly changes the balance of power between the provinces and the federal government.

It gives all the advantage to the federal government. If we go back and refer to some past debates we have heard earlier this morning about referenda, what has that to do with it? I am saying, through you, Mr. Chairman, to my colleagues,

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some of whom I am prepared to concede—especially the television audience who are paying very close attention and some of those around the government side—what we are doing here, what we are being asked to approve, is a provision which is being put to us on a phoney basis; it is being put to us because it is said we have to have a way to break a deadlock.

So if the federal government can get its way, then the federal government can, on its own initiative—and nobody else’s—then run a referendum.

How divisive such a referendum might be I leave it to others to conjecture. I am not going to spend time on that.

I am down to the narrow point that the minute you put a referendum in the constitution and the only level of government that can trigger it is the federal government, you have profoundly changed the balance of power between the federal government and the federal government’s partners in confederation—the provinces.

It is of no use talking about how we will delay it for 12 months, and we will have a cooling-off period, that is just a lot of baloney. That does not get to the nub of the problem.

The problem is this, that the provinces do not want to have the amending formula in the sole hands of the federal government. This talk about, “Well, what is more democratic than going to the people?” may sound terrific on the hustings, and it is great for selling soapsuds. But the fact of the matter is that if anybody, listening to this debate, believes some of the complexities we have been studying here for many, many weeks, can be decided by simplistic questions in a referendum, then I have to tell them—and I am quite prepared to do—that they are a pack of fools, because it is not that simple.

We change the rules under which we live. There has to be deliberate and careful study. There ought to be debate. There ought to be careful consideration, not only what the intent of those changes are, but what the words mean.

Mr. Chairman, if we are foolish enough as Canadians to think that you can start to change the constitution of Canada by referendum, by simple words put out to get people to answer “yes” or “no”, then what we have done is to abandon responsible government and we have gone to the Gallup poll, with all of the dangers that that implies!

There is not a person around this table who does realize that you can get the answer you want according to how the question is given. You can talk about setting up a Commission to have a fair question. But we are not talking about a constitutional amendment; you are not talking about the relatively simple proposition that we had in the province of Quebec, which was basically; you get out of Canada or you stay in. No matter how you worded that, that is what it was all about, and everybody knew that.

You are not talking about a relatively simple question that Newfoundland had to face, as difficult as it was for them; do you join Canada or do you stay out? You are not talking about the relatively simple question which was put to us, not as a

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matter of law, but as a matter of seeking opinion during World War II: do you put in conscription, or do you not? Those questions are profound, but they are relatively simple.

I have to ask, Mr. Chairman, and I do it rhetorically, of course, but through you to my fellow members: how in the name of heaven can you take some of the clauses we are dealing with and put them in a referendum? You cannot do it. It absolutely ridiculous to think that you can.

You are going to have an absolutely confused public. The only way you can deal with a confused public is to simplify it for them.

You put on an advertising campaign which makes them vote “yes” or “no” and they do not have a clue of what they are voting for or against.

I will back up a little bit. They might have some clue about what they are voting for or against. But if we take the problems we have been facing in this Committee for weeks now, and think you can put these things out, these clauses one at a time on a referendum basis, then anybody who thinks that is a pure blind fool; and the public that thinks they are going to have some kind of meaningful input in changing or amending the constitution on that basis is equally foolish.

Mr. Chairman, I have to say this: what this proposition does is to give to the federal government power it never had before.

I have been sitting here for weeks listening to people get up and say that for so many years they have been trying to reach a consensus, to find an amending formula; they have been trying to reach a consensus to find a new constitution; it goes back for decades—so I hear.

But the fact of the matter is that never before has a referendum been put on the table for discussion. Never before!

We have it now, because it is in the package which was delivered to the Canadian people on October 2.

Mr. Chairman, I am going to say to honourable members, both of the honourable Senate and of the House of Commons, that if you proceed and do this, do not have any illusions about what you are doing. You are going to incorporate into the Constitution of Canada built-in resentment, certainly on the part of the western provinces and probably on the part of the other provinces—in the Maritimes as well—resentment that you are going to have to cope with for decades, not for days, weeks or years; but for decades.

The whole proposition is wrong. It is wrong because it is unfair. If you say, well what is unfair about going to the people, then I will tell you this. It is unfair because only the federal government can do it.

Now I do not happen to believe in the use of a referendum to change the constitution, to change the fundamental rules under which we live, because I believe in responsible government. But if you are going to have it, it is unbelievably unfair that only the federal government can incorporate it; only the federal government can initiate it.

You could have ten provinces coming to the federal government now and saying, “We want changes. We believe this is in

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the public interest of Canada”, and the federal government can say; “Well, you lost under Clause 41.”

What is more important, even if they won under Clause 41 and the federal government did not agree with it, because they have power under Clause 41 not to pass it in the House of Commons and with a majority they can turn it down and with the amendment you have in here, the Senate could not make any changes; what could happen is that 10 provinces could come to the federal government and say: “We want to make changes”; You will go along under Clause 41—“We want to have a referendum with the people”, and the federal government will say: “No, you go chase yourself. We are not giving you any referendum. There is no way you are going to the people. Only we can go to the people, and only when we think that we know better than you do what is good for you”.

Mr. Chairman, it is a dismal proposition. It is divisive. It is right. It does not sit with our historical process, and it is anti-Canadian.

Some hon. Members: Hear, hear!

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

Thank you for your cooperation.

Seeing that it is 12.30 p.m. I would like to adjourn this meeting until 3.30 p.m. this afternoon.

[French]

The meeting is adjourned until 3.30 p.m.

[English]

AFTERNOON SESSION

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The Joint Chairman (Senator Hays): If I can call on the honourable ladies and gentlemen to return to their seats so that we can start on Clause 42 of the constitution act, and it may be…

Mr. Fraser: Point of order, Mr. Chairman.

The Joint Chairman (Senator Hays): Yes, Mr. Fraser.

Mr. Fraser: Mr. Chairman, I do not really hesitate to do this because I think it is appropriate.

I have been informed over the adjournment that my friend Mr. Mackasey had a phone call from a Conservative supporter out in the West who was deeply offended by two of my interjections this morning. I do not know whether that report is accurate or not but I think through you, Mr. Chairman, my honourable colleagues should know that even before I heard that I had spoken directly to my very good friend Mr. Mackasey, we disagree on a lot of things but we are very good friends and he has been a very kind, I was going to say senior member of the House of Commons, during my stay here but he has always been a very good friend and I spoke to Mr. Mackasey at noon and I said: Look, I exceeded the bounds of propriety, I was very angry, I am very angry over the issue but that does not excuse my interventions and I think I made an intervention to Mr. Mackasey and I think I also made an intervention or interrupted Mr. Tobin.

Mr. Chairman, through you, because I have been very fairly treated by both the Joint Chairman and yourself and by my

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fellow members, and I just want to say that I hope they will forgive the fact that I was very irritated about the issue, I do not put that forward as an excuse but I want my colleagues to accept my apology for those interventions and I certainly do not want to in any way destroy the civility of these proceedings.

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

Honourable Bryce Mackasey.

Mr. Mackasey: I want to make it very clear to anyone who is watching the proceedings that I have always considered Mr. Fraser a close friend and l hope we will always continue to be close friends. We belong to a very exclusive club in that we are both former Postmaster Generals, and anybody who has the patience to act as postmaster general for more than 48 hours has to have special qualifications, and of course that applies to me as well as to you, John.

So the incident is closed and there is no need to apologize except more important to me is that we still remain very close friends.

The Joint Chairman (Senator Hays): Well, thank you very much and thank you, Mr. Fraser. I am sure that that is what makes Parliament great, the cordiality between all of its members regardless of party stripe.

Mr. Crombie: That may be true, Mr. Chairman, but you may recall that Mr. Mackasey said Mr. Fraser was suffering from my influence and Mr. Mackasey did not apologize to me, but that is all right.

Mr. Mackasey: I must say, Mr. Chairman, I cannot recall any intervention by Mr. Crombie that had any effect on me, positive or negative.

Mr. Fraser: Well, Mr. Chairman, I sit beside Mr. Crombie and whatever influence I have on him is absolutely…

Mr. Crombie: Think of a good word, John.

Mr. Fraser: It does not have any effect whatsoever.

Mr. Crombie: How about the New Democratic Party, have you got anything to say?

An hon. Member: No, not a thing.

The Joint Chairman (Senator Hays): Miss Campbell on a point of order.

Miss Campbell: Yes, Mr. Chairman, I would like to raise a point of order, perhaps to correct misinformation concerning the proceeds of this Committee.

Last night I happened to watch the last of the Watson Report before it finished and one of the visitors on that show, or persons on the show last night, Professor Maxwell Cohen who we all know, made a statement that I think questioned the validity of a part of this Committee proceedings, an integral part, and I would just like to look at the statement and perhaps get the support of the entire Committee to correct it, but he mentioned:

Bear in mind the present Committee does not have a permanent research staff of its own at all. It has to rely upon the ad hoc research of the members, their staff, and

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the ad hoc research done by the permanent civil service. There is no staff which this Committee has been able to turn to of its own and I think that this has been a grave limitation upon the ability…

And he goes on. All I would like to point out is perhaps Professor Cohen is not aware but we, at least I myself have had a lot of assistance in this individually from the library which is attached to the House of Commons and parliament, and has been of service to this Committee.

Myself, I have used it on many occasions and I think individually or as a group we have had the use of the Library of Parliament as a Research Assistant here to this Committee and I think that went across national television last night, across Canada, which implied we did not have any independent research assistance and I feel that, I do not think anybody on this Committee would like to leave the idea that the library has not provided us with good assistance and with good research assistance.

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

Mr. Robinson.

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

Miss Campbell did indicate that she would be raising this point and I just want to echo the remarks made by Miss Campbell as one who has benefited personally a great deal from the services of the staff, the outstanding staff of the Library of Parliament Research Division. They have done a number of individual studies for me and I know that all members of the Committee would want to share in correcting the inaccurate impression which was left by, I believe Professor Cohen was a witness on behalf of the Liberal party, by Professor Cohen and that, certainly speaking for myself and for my party, we have been very pleased and would like to say that the service we have been given has been truly outstanding.

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

Mr. McGrath.

Mr. McGrath: Mr. Chairman, I had the advantage of hearing Professor Cohen last night when he made that remark and I want to join with Miss Campbell on behalf of my party in endorsing what she has said.

We have been well served by research here, by our own Library of Parliament, Research Department, by the research departments of the various parties, I am sure I speak for everybody when I say that, I know that our own research department has been here and serving us well.

I do not think that the public is generally aware that the situation in parliament is not as it used to be. We are reasonably well served in terms of research, in terms of providing us with the backup material we need to argue and debate and to argue in an informed way.

Perhaps Professor Cohen may have been alluding to the fact that the Committee is not an independent committee. We do not operate—we are a Committee of parliament, we are not a royal commission, we cannot operate independently of the

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institution of Parliament, and the institution of Parliament has within it the parliamentary library, the research department and the research branches of the various parties and of course we have Mr. Dobell’s people who serve us well, and generally speaking I think we are well served.

How we use it, of course, is another question.

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

Mr. Fraser.

Mr. Fraser: Through you, Mr. Chairman, I have been informed that last night, when our Committee’s proceedings were ending, the television coverage cut off just in the middle of my colleague Coline Campbell’s intervention. I am terribly distressed about this because she was not continued when the television coverage came on several hours later. However, I am a lot more distressed because the entire intervention that I made was completely cut out, you see, and while I am certainly prepared to go to bat for my friend, I do hope that because she was cut out that you might also look into the fact that there is a very interesting intervention there, I say this to both Joint Chairmen and to all my colleagues, and of course to anybody who is listening, and perhaps we could arrange to have it replayed because it was scintillating, it was brilliant and it was to the point, and I do not think that the Canadian public should be robbed of either what Coline Campbell said or, what is far more important, Mr. Joint Chairman, what I said.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Fraser. I am sure the Canadian public were the losers.

I think that I speak for my Joint Chairman and myself that we have also been, as honourable members have expressed, been very well served by the Library of Parliament.

And now that I have the next Prime Minister of Canada sitting beside me I will let him take over.

Mr. Fraser: Do not move to Toronto.

Mr. McGrath: You know what happened to John Turner.

Mr. Mackasey: Mr. Chairman, does that give some credence to the rumour that Senator Hays is going to provide your funds?

The Joint Chairman (Mr. Joyal): You will not believe me but I will invite the honourable members to come back on the main debate on the amendment that we were discussing this morning and we had a long list of speakers and the Chair is quite glad that each one of them has had a fair opportunity to have an input into the debate.

I still have the name of honourable Senator Austin who wanted to conclude on the proposed amendment and I would be ready, of course, to receive any show of interest on the part of the New Democratic Party or on the part of the Official Opposition to invite them to move on, on this debate.

I see that Mr. Robinson has a question before I invite honourable Senator Austin to conclude.

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Mr. Robinson.

Mr. Robinson: Mr. Chairman, I do have a question for the Minister, I do not know whether he will be returning or…

The Joint Chairman (Mr. Joyal): Yes. If I may ask the honourable Minister of Justice to come back to his seat so that Mr. Robinson can conclude with his intervention.

Mr. Robinson: Thank you, Mr. Chairman.

Through you, Mr. Chairman, to the Minister, the Minister will recall that I raised a concern with respect to the applicability of the referendum procedure to the Charter of Rights in particular and suggested that either it should be eliminated or that at the very least there should be some higher procedural safeguards in the case of the referendum applying to the Charter of Rights, and I pointed out that there was an amendment coming forward from the New Democratic Party under Clause 50 and asked the Minister whether, without perhaps committing himself at this stage, if he does not feel able to commit himself at this stage, whether he would at least be prepared to look very seriously at the possibility of either accepting the amendment in the terms in which it has been presented, or at the very least an amendment which would require two thirds majority for changes to the Charter of Rights by referendum?

Mr. Chrétien: The answer, Mr. Chairman, is no. We have looked into the problem, all the rights of Canadians are enshrined in the Canadian constitution and there is a mechanism to change all the rights or to maintain them, and the general amending formula will apply to that like other things.

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

Honourable Senator Austin.

Senator Austin: Thank you, Mr. Chairman.

In closing the debate on the government’s amendment on Clause 42 I would like to deal with what I think are the salient points which have been raised regarding the role and nature of a referendum.

The opposition has argued that this clause, Clause 42, would allow the federal government to amend the constitution over the heads of the provinces, and that is what it does. It allows going over the heads of the provinces to the people of those provinces.

A better characterization of this clause is to say that it allows constitutional issues to be placed in the hands of the people for decision.

I suppose, Mr. Chairman, that the major premise which I must articulate is that at the end of the road of all this argument it is the people of Canada and not the legislative bodies, whether they be federal or provincial, that are the best custodians of the values that Canadians hold in common. And I want also, Mr. Chairman, to make it clear that it is the people in each of our four regions who must respectively agree; two majorities are required in order to ensure acceptance of the proposed amendment in all regions, a majority of voters voting and a majority in each region.

The purpose of the clause is to place authority to consent to an amendment directly in the hands of the people as an

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alternative to amendment by agreement by Parliament and the provincial legislatures. Thus, required regional majorities parallel the consent required from provincial legislatures under Clause 41.

On this basis approval by referendum would therefore require, first, a majority of voters voting therein, that is a national majority; and secondly, a majority of voters in every province having a population exceeding 25 per cent of the Canadian population, that is currently Ontario and Quebec; and also a majority of the voters in at least two Atlantic provinces; and finally, Mr. Chairman, in at least two western provinces having the combined population of at least 50 per cent of the region. And of course it could be a majority in the three prairie provinces without British Columbia.

It may be asked, and it has been asked by many of those who have participated in this debate, why only a referendum authorized by parliament is provided, why not a referendum by the provinces. I believe, Mr. Chairman, that the appropriate rationale is that only Parliament represents all of the people of Canada and consequently the ability to go to them by way of a referendum should be vested in the national parliament.

Some of the opposition members have argued that if the ten provinces come together they should be entitled to a referendum. I believe that argument fails entirely, Mr. Chairman, on the rock that each of those provinces has a respective mandate but they do not collectively have a national mandate. Only the national Parliament, the Parliament of Canada in which we now sit, has that national mandate.

I would like to refer briefly to Mr. McGrath’s point with respect to Australia referenda. What he says, as far as it went, is correct but Mr. McGrath, if you look at the debates of Australian constitutional authorities you will feel that the preponderance of their opinion is that they, too, need a deadlock breaking mechanism, and of course we have this opportunity at this time to have in Canada a deadlock breaking mechanism.

I want to say to Mr. Nystrom, he is not here but at least I can put on the record my interest in the amendment that he brought to us earlier today, and that amendment was that before a referendum proceeded four provincial legislatures would have to approve of it. I am interested in the idea but I find it wrong in concept to provide that the provincial legislatures should have an affirmative veto over the action of the Parliament of Canada, the Senate and House of Commons, in proceeding with a referendum should it be the opinion of Parliament that a national referendum is required.

I believe the onus should be on the provincial premiers to put in place a negative veto, that is something which I hope may find interest in discussion amongst the provinces and the federal government during the period of transition, the interim arrangement period when a number of new items may

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undoubtedly be put forward. If that idea has merit I am sure the provinces will pick it up.

With respect to the Western Canadian interest in the referendum, there has been much passion on the side of the Opposition arguing that this referendum is contrary to the interests of Western Canada.

I want to make clear my opinion, which is equally passionate, that Western Canadians are given by this referendum mechanism the opportunity to defeat a national referendum where in two provinces, comprising a majority, or two or more provinces comprising a majority, the population is negative with respect to the proposed referendum; I think that is a great power on the part of Western Canadians and I believe that they share that power in a fair and equitable way with the rest of Canada.

I also believe very, very strongly that in phase two there will be a great opportunity for the western Canadian premiers to come forward and construct a Senate of Canada which will be truly representative of the economic and regional interests of western Canada, and that ought to be a senate, and I believe this view is shared around this table, not only by myself but by others, that that ought to be a senate which will have real power as a check and balance on the population of central Canada. The way it will do that is by participating as a condition precedent in the joint resolution that will be required of the House and the Senate before a referendum can be placed before the Canadian people.

So I say in conclusion, Mr. Chairman, that there will be a very substantial opportunity for Western Canadians, the premiers of Western Canada, to be heard in the position which will come after this joint resolution is in place, and I believe that that opportunity should be seized by Western Canadian premiers to ensure that Western Canada is well represented in the federal process.

I thank you, Mr. Chairman.

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

I see honourable members are ready for the question on the proposed amendment.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to come back on the main clause.

I see that the honourable David Crombie would like to make an intervention before the Chair calls the vote on Clause 42 as amended.

Mr. Crombie: Thank you, Mr. Chairman.

I could have spoken to the amendment, but I wish to speak to the idea of a referendum and in particular in relation to what I consider to be the perversion of the concept of a referendum as presented by the government’s resolution.

I am one of those, Mr. Chairman, who supports the concept of a referendum. I am one of those who thinks, whether it be

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the municipal government, the provincial government or federal governments, there is a place for referenda.

Indeed, much of the historical and political literature of this country—let me put it this way: a lot of ground has been broken by the use of referenda. That was particularly so in the early part of this century with the populace movement both in the American West and the Canadian West.

The referendum, the plebiscite, the initiative, the recall, were four instruments that people have used or in many cases have tried to use in order to make sure that government was closer to the people they pretended to represent. I think those concepts have an honourable place, not only in the history of Canada, but in the future of Canada.

I think, however, that we have been a little sloppy in the use of the words we have. I have taken to a definition out of Black’s Law Dictionary which I find a very good one.

We have tended to use the word “referendum” when, I think, we mean “plebiscite”.

As regards the meaning of “referendum”, Black’s Law Dictionary says that in modern constitutional law in Switzerland and elsewhere, it is a method of submitting an important legislative measure to a direct vote of the whole people. Mr. Chairman, I repeat: a method of submitting an important legislative measure—very different from a plebiscite.

A plebiscite—and I would like to read this definition, because it not only points out the difference between that and a referendum, because I think it is a plebiscite the government means and not a referendum, but it also points out some of the dangers.

In modern constitutional law the name plebiscite has been given to a vote for the entire people expressing their choice for or against a proposed law or enactment submitted to them and which, if adopted, will work a radical change in the constitution or which is beyond the powers of the regular legislative body. The procedure is extraordinary and is generally revolutionary in its character, an example of which may be seen in the plebiscite submitted to the French people by Louis Napoleon whereby the Second Empire was established.

I commend it to the government’s side and all Committee members—not only the definition of referendum in relation to what the government is proposing but indeed the historical analogy it offers.

Mr. Chairman, the united farmers of Ontario, the united farmers of Alberta in that whole era of Canadian politics, used the referendum, the plebiscite, the recall and the initiative in order to make new directions.

But there has never been in the history of this country the use of a referendum, the plebiscite, the initiative or the recall

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on a constitutional measure which would change the legislative balance between the provinces and the federal government.

Indeed, Mr. Chairman, this proposal is not a referendum as normally understood.

First of all, a referendum usually involves the opportunity for an initiative. And initiative is where the people are able to call for a referendum.

Senator Austin says that we should trust the people. I agree. But this resolution does not.

This resolution does not allow the people of Canada to call for a referendum for a constitutional change.

This referendum only allows the federal government to use the people of Canada for a referendum for a purpose that the federal government would like to have. That is point one.

Point two: certainly in a federal system—any federal system, at least in the western world—the referendum is always advisory and respectful of the other partners of the federation, and, therefore, you will often find procedures which allow the other partners to the federation, whether they be states or provinces or cantons as they are called in Switzerland, to participate in the triggering of a referendum or a plebiscite.

In this proposal, Mr. Chairman, the government does not only not allow people to trigger it, but it is not allowing provinces to do so either. In fact, the government, in support of the resolution just voted down the opportunity to allow the four provinces to participate in the triggering of a referendum which would change the constitution of this country.

So the first thing I would have to say is that this is not a proposal which allows people to participate. It is not a proposal which allows provinces to participate. The only time people or provinces can participate is when the federal government allows them to do so. That is a perversion of the democratic instinct upon which a referendum is based.

What makes it worse, Mr. Chairman, is when we look at the procedure by which this resolution is going to be rammed through the constitution of Canada.

I would like to remind, Mr. Chairman, that as a consequence of your own ruling—a ruling which I applauded in terms of the specific matter with which you are dealing—but the consequences of that ruling in relation to this proposal are awesome.

This proposal, which some have quite rightly called the most significant proposal before us, will give the federal government four things; one, it will give the federal government a power which it never had before; secondly, it will give them a power which was not even discussed at the First Ministers’ conference, and has never been discussed in any formal way with the provinces of this country. It is not like some of the other matters where you can fairly say that Premiers never will agree. They never talked about this. The government never proposed this to the Premiers and they turned it down. This proposal,

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Mr. Chairman, was never even submitted to the Premiers for discussion.

Thirdly, Mr. Chairman, this proposal has never been agreed to by Parliament. In your own submission, your own ruling, Mr. Chairman, when Parliament dealt with this constitutional resolution, it did not deal with the substance of the matter.

Your ruling says we only dealt with the procedure referring a document to a joint committee.

So third point, Mr. Chairman, is that this power which is now going to be given for the first time to the federal government was not discussed with the provinces or with the Premiers and was not even agreed to as a fundamental principle by the Parliament.

Fourthly, Mr. Chairman, as a consequence of your ruling, when it goes back to Parliament, when we report back to Parliament, we cannot change it. The House of Commons cannot change it.

This power, which allows the federal government, at its will, without the consent of the people, without the consent of Parliament, to trigger a referendum has never been agreed to by anybody, except the Liberal Party and has, indeed, given no opportunity for anybody else, when it goes back to Parliament, to ever change.

I once talked about the poverty of the democratic process in the constitution making of the last four months. This will go down in history as the worst attempt by any government to try and exert its power over the provinces and the people, in my view, unconstitutionally, that this country has ever seen.

They would not even submit it to the Premiers or to the provinces! They would not submit it to the people, and they would not even submit with the opportunity for change to Parliament.

Now, why do they want the power? Why would they be breaking all those traditions and all those rules? What is at stake? Let me deal with that, Mr. Chairman.

What is at stake is very important. Our system of government—indeed all democratic systems of government, Mr. Chairman—are based upon limits to power. They are always based on that premise. As most civilized people know there are always limits to power. Sometimes those limits have to be imposed internally. If people will not check themselves, they have to be imposed externally—people as well as government.

What restrains the federal Government of Canada, or the power of the Prime Minister of Canada?

The first thing that restrains the power of the Prime Minister and of the federal government of Canada is the Cabinet.

But by and large, as everyone knows, the Prime Minister controls the Cabinet; he appoints it and they hang around just about as long as he would like to have them.

The second thing which limits the power of a Prime Minister is the political party; because the Prime Minister’s power,

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after all, ultimately depends upon the ability of the party to support him in the House of Commons.

But, as we have seen, the Prime Minister in our circumstance controls the party. They pretty well do his bidding in the House of Commons.

Another two matters which have always controlled the power of a Prime Minister in our country is the British North America Act; because, try as he might, control of the Cabinet though he might; control the political party, though he might; control the Parliament though he might; indeed, control the Senate from time to time, though he might; he always ran into one bedrock: he could not control the British North America Act; in particular, he could not control those powers which were assigned to the provinces.

The only way that could be done is by either consent or by constitutional amendment. It is constitutional amendment, Mr. Chairman, that we are talking about now.

The way in which it was and has been done up until today is when the British government had to agree, after there was substantial agreement by Canadians.

Mr. Chairman, that is precisely what is being done to change in this resolution. Because what it is doing is giving an amending formula in Clause 41, which we may agree or disagree on—Vancouver or Victoria; but if that is not good enough, if the government cannot get its way out of the normal amending formula, then Clause 42 gives them an extraordinary power. That extraordinary power is no check.

That is why Mr. Nystrom, in the House of Commons, referred to it as the loaded dice. That is why Mr. Blakeney does not accept it; that is why nine of the Premiers out of 10 do not accept it. Nine Premiers out of 10! Because the extraordinary power which would be delivered, not the ordinary amending power under Clause 41, but the extraordinary power of the federal government would no longer be checked in the normal way that Canadians have always had that power to limit it.

Senator Austin says, “Ah, but that is all right, because it is going to give people a chance. It is a kind of match between the Prime Minister who up to now has been able to control the Cabinet, the party, the Parliament and the amending formula; ultimately it is going to be what the people decide.” That is good enough for Senator Austin. If that were so it would be good enough for me, too.

In fact, as I have already pointed out, Mr. Chairman, that is not so. This is a perversion of it; because what it does is not to say to people: “You can start an amendment.” It does not say to the provinces, “You can start an amendment”.

The only time this comes into play is when the federal government cannot get its way under the normal amending formula in Clause 41.

That is why the Prime Minister and the government are unwilling to allow four provinces to have to agree to an amending formula.

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If they simply want the people of Canada to be able to participate in Clause 42, then why would they not want to have the provinces of Canada participate in figuring it? Why would they even at least have some people, if not provinces, to trigger it? No!

The only people who would be able to trigger this is the federal government itself! That is the kind of government that they had in the 19th century in France. It was known as participatory democracy. We knew what it was. It meant that there were no checks against the power—no checks. This is what this means.

The reason why we are worried, the reason the NDP Party used to be worried, and the reason why at least Mr. Blakeney is still worried, and the reason—I can tell you—why my constituents are worried, is that for the first time in Canadian history, this extraordinary amending formula provides no check, except that which the federal government is willing to impose on itself.

It can be triggered only by the federal government. We must not miss that point. It is not a check by the people. If it were, I would support it. It is not. It is only used when the federal government wishes to use it.

That is not a sufficient check of the power of the Prime Minister of Canada.

Thank you, Mr. Chairman.

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

Clause 42 as amended agreed to.

On Clause 43—Amendments of provisions relating to some but not all provisions.

The Joint Chairman (Mr. Joyal): I would like, then, to move on Clause 43. The honourable David Crombie will remember that he had already moved an amendment with general consent around the table. That amendment was stood, and there was to be further discussion with the honourable Minister of Justice on the possibility of a new amendment which would be introduced after Clause 43 or to Clause 43; that that amendment would be the object of a consensus between the honourable David Crombie and the honourable the Minister of Justice and would then be called and be opened to discussion.

I said previously that I invited honourable members to move on Clause 43. On Clause 43 there was a previous amendment moved by the honourable David Crombie on behalf of the Official Opposition, the Conservative Party, that by unanimous consent that amendment was stood, and further to discussions between the honourable David Crombie and the honourable the Minister of Justice, there was a consensus which was expressed to this Committee then the government through, as usual, the Parliamentary Secretary to the honourable the Minister of Justice, will come back with an amendment which would deal with the very specific suggestion

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contained in the amendment as moved by the honourable David Crombie.

So what I would like to call now is the amendment as moved by the honourable David Crombie.

I would like to remind honourable members that it is an amendment numbered CP-8.4, new clause following Clause 20, page 8. That amendment was sent to be discussed after or on Clause 43; and the government amendment following that proposed amendment is number G-39.1, first new clause after Clause 43, page 13.

[French]

The new amendment presented by the Government party is number G-39.1, first new clause after Clause 43, page 13.

[English]

If some honourable members do not have a copy of one or the other amendment, I will make sure that the clerk provides a copy to them.

The honourable the Minister of Justice.

Mr. Chrétien: Mr. Chairman, I would like to make a suggestion. I think that as it is a new clause we should deal with Clause 43, and after that there will be a new clause, and there has been an agreement between Mr. Crombie and myself that the new clause will be acceptable to both sides.

So we can dispose of Clause 43 and there will be a new clause, a new Clause 44.

The Joint Chairman (Mr. Joyal): Before I call the vote, I would like to invite Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

I have a question with respect to the proposed Clause 43. That relates in part to the amendment passed recently confirming aboriginal and treaty rights.

I would like to ask the Minister, through you, Mr. Chairman, whether he would agree that it is possible, pursuant to the provisions of Clause 43, for the federal government, together with the consent of one of the provincial governments, to extinguish or affect the aboriginal and treaty rights which are confirmed in Clause 31?

Mr. Chrétien: I said the general amending formula will apply in the case of aboriginal rights.

If it were to be a very clear case where it would be just a local situation, it might be that a decision would be that it is possible to amend by a provincial or the national government.

Mr. Robinson: Mr. Chairman, through you to the Minister again—and this is hypothetical, perhaps; but in the case of a land claim involving aboriginal lands entirely within the jurisdiction of one province, for example, the Nishka land claims, presumably you will agree that it would be possible for an agreement to be made between the provincial government involved, the government of British Columbia, and the federal Parliament to affect or to extinguish those particular rights?

Mr. Chrétien: You are asking me to speculate about that situation. It might or might not, depending upon the nature of the settlement.

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If it were to create a situation which would affect the other aboriginal rights of the nation, it might be considered that it has to be amended by Clause 41.

As we have tried to cope and deal with clarification of those particular situations, it was agreed that the general amending formula should apply in those circumstances.

But you are speculating, and I cannot say definitely yes or no. It would depend upon the nature of the act of Parliament.

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Mr. Robinson: Mr. Chairman, again through you, Mr. Chairman to the Minister, it has been suggested by some aboriginal groups that in this particular provision and also in the broader provision with respect to amendment of the constitution that there should be at least some requirement for consent on the part of the aboriginal peoples involved. For example, in the case of Nishka claims, that they could not be bypassed by an agreement between the provincial government and the Parliament of Canada.

Have you studied the possibility of a requirement for consent and specifically have you looked at the possibility of some form of referendum of the aboriginal people involved.

Mr. Chrétien: We have the precedent that we have created in negotiations with the Quebec native claims in the James Bay area where we insisted that there be a consultation or a referendum with the natives of that area, so I presume that this precedent will be part of the federal jurisdiction in the matter because if we have insisted to have a consultation with people in one part od Canada I do not see why we cannot.

When you take the larger terms of our aboriginal people sometimes it is easy to define them. Other times it is quite more complicated when you go with the nonstatus and the Métis people and that will be probably the subject of the national legislation when Parliament will deal with it. We do not think it is possible to entrench the referendum procedures in those matters in that clause and there is no, at the request of the natives, there is no special clause dealing with the amending formula for native rights. They have agreed with us that it will be the general amending formula that will prevail.

Mr. Robinson: My final question, Mr. Chairman, if I may, is to seek some clarification of the Minister through you, Mr. Chairman, of the circumstances in which it might be argued that aboriginal rights which were being dealt with in the case of one particular province, within the jurisdiction of one particular province, when could it be argued that this might have an impact upon aboriginal rights for the nation generally. You have stated that under circumstances this might be argued. Have you received any legal opinion as to the circumstances in which a province together with the Parliament of Canada could extinguish any rights on the one hand and on the other hand when this might have some impact on aboriginal rights in the country as a whole.

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Mr. Chrétien: I have not had the time to look at all the different possible implications. As you know, this is a decision that was made by this Committee on Friday and there was some problem at the time on the negotiation about the amending formula for the entrenchment of native rights or any change of those entrenched rights. After discussion with the natives they said they would, rather than cope with this problem specifically, be satisfied to have the general application of the amending formula to apply to those rights, just like any other rights.

So you see I cannot speculate at this time and say what might be the interpretation. I just say that the national government and Parliament will have some responsibility and a decision by us will necessarily affect, if we go in one direction or the other, of the rights of the aboriginal people of Canada, and what will be the interpretation of the courts in those matters it is difficult for me to speculate on that.

Mr. Robinson: Mr. Chairman, I do hope that the Minister will look very seriously at this question during the course of the negotiations involving the first ministers who are particularly interested in constitutional matters over the next couple of years. As the Minister knows, aboriginal peoples will be involved in this discussion and I appreciate that the Minister has not had an opportunity to examine it in detail, but I would ask the Minister for his undertaking that this particular question will be carefully examined at that time.

Mr. Chrétien: It will be carefully examined and will be debated. Of course, one of the main questions will be for the natives and the constitution when it is debated, will be how firmly they are entrenched; and that will be one of the questions that we will have to look into. I am not worried not raise it.

Mr. Robinson: Thank you, Mr. Minister.

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

Clause 43 agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to then take the proposed amendment as already moved by honourable David Crombie, and with the unanimous consent of all honourable members, so that Mr. Crombie could withdraw that amendment.

Mr. Crombie: You want me to withdraw Clause 21 now in favour of the new Clause 44.

The Joint Chairman (Mr. Joyal): Yes.

Mr. Crombie: I would be happy to withdraw that.

The Joint Chairman (Mr. Joyal): So with the consent of all honourable members, the Honourable David Crombie has withdrawn his amendment.

I would like to call the new amendment, G-39.1, first new clause after Clause 43, page 13.

[French]

The amendment is identified as G-39.1, first new clause after Clause 43, page 13.

[English]

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

[Page 69]

Mr. Irwin: I move that the proposed Constitution Act, 1980 be amended by (a) adding immediately after line 29 on page 13 the following:

(1) Notwithstanding Clause 50, on amendment to the Constitution of Canada

(a) adding a province as a province named in Clauses 16(2), 17(2), 18(2), 19(2) or 20(2), or

(2) The procedure for amendment described in subsection (I) may be initiated only by the legislative assembly of the province to which the amendment relates,

and (b) renumbering the subsequent clauses accordingly.

Thank you.

[French]

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

Mr. Corbin: Mr. Chairman, I move

That the proposed Constitution Act, 1980 be amended by:

(a) adding immediately after line 29 on page 13 the following:

“44. (1) Notwithstanding section 50, an amendment to the Constitution of Canada

(a) adding a province as a province named in subsection 16(2), 17(2), 18(2), 19(2) or 20(2), or

(b) otherwise providing for any or all of the rights guaranteed or obligations imposed by any of those subsections to have application in a province to the extent and under the conditions stated in the amendment, 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 the province to which the amendment applies.’’

(2) The procedure for amendment described in subsection (1) may be initiated only by the legislative assembly of the province to which the amendment relates, and

(b) renumbering the subsequent clauses accordingly.

Thank you, Mr. Chairman, and if I may, I would like to speak to this amendment.

Mr. Chrétien: Before Mr. Corbin speaks, we discussed this problem the other day, and I believe that this compromise between Mr. Crombie’s position and mine should solve the problem to some extent. So I shall not give any explanations, we had a long debate on this matter and it is quite acceptable.

[Page 70]

This will allow a province either to opt for the solution through Sections 16 to 20 on a gradual basis, if it so desires. I wanted to make sure also that this clause was fully understood by the whole Canadian population, in view of the snowball effect it might have. Now as there is agreement between Mr. Crombie and the government on the matter, I have nothing else to add.

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

Mr. Corbin.

Mr. Corbin: Mr. Chairman, my comments will be made in the particular context of this amendment, but also to some extent in the context of the general debate concerning the insertion of linguistic rights, and educational rights in the charter, but I shall limit my remarks to the linguistic rights.

Of course, as I am a member from New Brunswick, I am most fortunate since on request, we have allowed the Province of New Brunswick to use Section 133.

However, yesterday, during our debate, my counterpart, the Honourable John Fraser quite honestly hurt me by his remarks. I am sure that he did so inadvertently. I am sure it was unintentional, since he is a most honourable member. However, as a francophone outside Quebec—I do not like to describe myself in relation to Quebec, sir, but that is the current definition—as a member of the Liberal majority on this Committee, I was deeply hurt by Mr. Fraser’s comments.

[English]

Mr. Fraser yesterday said, Mr. Chairman, and I quote him:

I might say especially to the francophone members of the Liberal party that they show and 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.

You will recall, Mr. Fraser, that you were specifically referring to the inequality of language rights on one part given to Quebec, recognized in Manitoba, chosen to be adhered to by the Province of New Brunswick on the one hand and those same rights been denied to the half million French Canadians in the Province of Ontario and I would add, among others.

I do not know if Mr. Fraser attended those sittings of the Committee where some of my colleagues and myself put forth our position and also our dilemma that in as much as we dearly want those language rights to be extended to the linguistic minorities in the provinces outside Quebec, there is no way, there is no way that we want to get down on our knees and beg for them. If it is just to extend those rights, I do not think that the majority in this country should have to have the minority get down on its knees and ask for them. I will not do that. I do not intend to do that and I think I speak for the majority of francophones outside Quebec.

[Page 71]

If you recognize the justice of our elementary request, if you feel that we are entitled to those rights in Ontario and Saskatchewan and all the other provinces who will not be getting it, by virtue of the British North America Act or this version of the constitution, for goodness sake muster all the goodwill you can in this country and give it to us. We are the minority, and I do not think, Mr. Fraser, that you meant it that way, but I repeat that I was not incensed by the comments you made yesterday because colleagues of mine like Jean-Robert Gauthier, myself and others have made pleas to the government, to the members of this Committee, for the extension of those rights to all the linguistic minorities and yet they have been refused to us.

I am not one who will vote against the government package. I think we are making substantial progress towards recognizing the just demands of the minorities; certainly in the field of education we are making substantial progress, not as much as we would all want to. We are not making all the progress we would like to in terms of equal language rights for French and English in this country, but nevertheless, I will support the government on it; but I hope you understand my position and I hope you will not fault me for being insensitive to this question.

From day one of my being in politics I have fought equality of these rights, Mr. Fraser. I have been on just about every Committee of the House of Commons and every Joint Committee of the Senate and House of Commons that dealt with these matters and I have never ceased to make those requests. I have never ceased to appeal to the reasonableness of the majority in this country.

I would certainly not want you to leave the impression that some of us are insensitive to these issues. I think the matter is in your hands, Mr. Fraser.

The Joint Chairman (Mr. Joyal): Merci, Mr. Corbin. The honourable David Crombie, maybe Mr. Fraser in reply first. The honourable John Fraser.

Mr. Fraser: I think in view of what Mr. Corbin says, I should reply very briefly, Mr. Chairman, and I reply in two ways.

First of all, I do not want Mr. Corbin or others who are francophones to take what I said yesterday as any kind of personal slight against their efforts to advance what I think are the legitimate rights of French-speaking Canadians, whether they are in the province of Quebec or outside of Quebec. I say that, and I say that Mr. Chairman, through you, with great sincerity.

My point yesterday, I do not think I overstated it, but we had been listening to a lot of comment from government members that it is all right to unilaterally impose on the provinces some things, but not other things. I say through you, Mr. Chairman, to Mr. Corbin because I think he has every right to raise this with me, my point is this, that I think that this package which is basically a unilateral imposition on the provinces of many things, is wrong because it is a unilateral

[Page 72]

imposition. That is the philosophical position that I take, and I can see Mr. Corbin appreciating that.

My only point was that if those who have that philosophy which is the government’s side and to a lesser degree, the New Democratic Party, are prepared to unilaterally impose, then there is an inconsistency in not imposing on the province of Ontario the rights that francophones ought to have under Section 133, which is the right to have their language respected and used in the courts and in the legislatures and Mr. Corbin, I only referred to that because we were receiving from your side, and I say this very gently because I do not want to get into a pejorative argument situation with you, that our amendment would have left a checkerboard in Canada and I said, “Well, your position, through you, Mr. Chairman, of course leaves a checkerboard on one of the most important rights”.

That is in the only sense I meant it and Mr. Chairman, I have to say to you and I hope that you just bear with me, that did not in any way, what I said in no way intends, nor was it intended to denigrate the efforts that Mr. Corbin and others, Jean-Robert Gauthier, les autres, the tremendous efforts that they have made to express the position of French-speaking Canadians beyond the Province of Quebec.

I just must say to Mr. Corbin that I came back on the government members and said, “When you criticize our amendment for having a checkerboard pattern to it, I just point out the fact that this matter has not been addressed for half a million francophones in the province of Ontario, is also a checkerboard”, but Mr. Corbin was, I think, within his rights in raising this with me.

I have to say through you, Mr. Chairman, that I have nothing but admiration for what Mr. Corbin and others have done and I hope that some day someone may look at the records of what I have said over the years and the positions that I have taken, from a long way away, on the rights of my fellow Canadians who speak French; and I hope that we will all come together in due time.

I want to say to you, sir, thank you for giving me this chance to return the compliment that you paid me by raising the questions that I raised yesterday and I hope that you and I, at least on this question, are on accord.

[French]

Mr. Corbin: Mr. Chairman, I know that I have used up nearly all my time.

I am pleased to accept Mr. Fraser’s explanation. I know that his remarks are most sincere but I felt that this matter had to be cleared up. I thank Mr. Fraser for his comments.

May I ask the minister a question?

The Joint Chairman (Mr. Joyal): Please do.

Mr. Corbin: It is a short question.

Mr. Minister, in the course of our study of this draft resolution, we have accomplished things which seemed unattainable to us at the outset.

For example, we succeeded in entrenching the aboriginal rights of Indians, the Inuit and the Métis, the territorial governments will participate in future negotiations and we also

[Page 73]

made concessions for the handicapped, the blind, the deaf and dumb, etc.

I will now get to my point, Mr. Minister. Since this is probably the last opportunity which the government will have to either maintain or modify its position on the amending of the proposed resolution, I would like to know if the government is still determined not to impose Section 133 on Ontario and the other provinces?

Mr. Chrétien: Mr. Corbin, our position remains unchanged. As you said yourself, we have made a great deal of headway with this charter. We have, for example, officially entrenched both official languages of Canada in the charter with all the implications this carries. It will no longer be possible to do away with this provision through a simple enactment of Parliament but rather such a step would require the amending formula. If Quebec is willing to accept the Victoria formula, it will enjoy a permanent veto in such circumstances and thus an important long and short-term guarantee. As for the use of the official languages in federal services, decisions will be made by the courts and not only by administrators.

I do not want to refer to our chairman but Mr. Joyal, at a time when there was some disagreement over this question, pointed out that one of the weaknesses of our legislation was the way in which it was applied administratively. Such legislation is now out of the political arena and, more importantly, will be applied by the courts.

You mentioned that we are entrenching the rights of all French-speaking Canadians to an education in French. We introduced the necessary amendments to make the provincial governments’ obligations in this respect as clear as possible and henceforth, French-speaking Canadians who live outside of Quebec will enjoy the same educational rights as Englishspeaking Canadians living in Quebec. There will no longer be any double standard as far as education goes and the survival of minorities hinges on education. Very often assimilation occurs when educational possibilities are not available.

We would have liked the provincial governments to have gone along with Section 16 to 20 or Section 133 in 1970 and 1978 but it was never our intention to impose this. You said yourself quite clearly that you do not want to get down on your knees and beg for this right from the provinces.

The amendment which we are now proposing, that is the possible opting in to either a part or all of Sections 16 to 20, the amendment being put forward by Mr. Crombie and myself, with the full support of the Canadian government, is probably the wisest approach. We have all made our disappointment known but the Canadian government’s policy has remained the same and we do not intend to change it at the present time.

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

Senator Asselin: Just a comment.

[Page 74]

The Joint Chairman (Mr. Joyal): Yes, Senator Asselin.

Senator Tremblay would also like to ask questions. I will recognize all the members of the Committee who would like to speak on this point but before I had invited the Honourable David Crombie to take the floor and, as you probably remember, Mr. Fraser had asked for permission to reply to Mr. Corbin.

In all fairness, I should now invite the Honourable David Crombie to speak but, in keeping with his usual courtesy, he may yield his turn to you and make his observation at some later time.

[English]

Mr. Crombie: Mr. Chairman, I wish to speak briefly to the matter but if anybody has questions for the minister, I will be happy to stand down until they have accomplished that.

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

[French]

Senator Asselin, followed by Senator Tremblay.

Senator Asselin: Mr. Minister, the question asked by our colleague, Mr. Corbin, is a very important one and you probably realize that I would like the situation to be very clearly understood by the people of Canada.

I would like to know on what grounds the government refuses to impose Section 133 on Ontario. Does the government’s stand result from a commitment it made to the Prime Minister of Ontario in order to obtain his support for the government’s constitutional package or are there any other principles involved?

The representatives of the 600,000 French Canadians in Ontario did appear to ask us to take action on their behalf.

As Mr. Corbin mentioned, we have been handing out goodies to everybody. All these social groups which appeared before the Committee got something, including the handicapped. I have nothing against this, Mr. Minister. But here is a case involving 600,000 francophones in Ontario who came to ask us for simple justice and recognition of their equality similar to that granted to English speakers in Quebec. For what reason is the government unable to accede to their request? Is it for the reason I just mentioned?

Mr. Chrétien: Let us get things straight. There was no understanding or deal with Mr. Davis on this matter. The position was the same in 1970 and 1978. We provided for mechanisms which would allow the provinces to provide for institutional bilingualism in the legislature and civil court proceedings. The government policy has always been to put some pressure on the provinces but not to impose anything.

[Page 75]

You say that we have done nothing but let me point out that in spite of all your speeches, you have not presented many motions to this Committee. One thing I consider deplorable is that although so much progress has been made during our discussions here, no mention is made of this fact. After all the battles that took place over French language education in Canada at the time of Bourassa and others and after all the fund raising campaigns in support of Maillardville or Gravelbourg, here we in this Committee have finally guaranteed in the constitution educational rights for French speakers throughout Canada and yet the day after the vote, there is not a word about it in the newspapers. That is deplorable.

The entrenchment of both official languages in the constitution, not simply through a statute of Parliament, you were in Parliament at the time and you know the difficulties we experienced—thus settling the administrative problem by bringing this issue out of the political arena and allowing the courts to establish administrative criteria represents a great deal of progress, in my opinion, which I did not consider possible and I would like to thank all of the members and senators for their cooperation.

However, we do not want to go as far as to impose 133 on the provinces; such has never been the policy of the Canadian government but, as I have said on several occasions, we would like the provincial governments to take this step voluntarily. I have made statements on this, along with other members; our policy has always been the same. There was never any agreement or deal; our policy has always been open and above board.

We discussed the matter this summer with Premier Davis but in September, he said he was not interested, contrary to Mr. Hatfield who decided to have this province opt in.

As a matter of fact, the protection of French in New Brunswick, once we have finished, will be greater than that enjoyed by the English language in Quebec.

Senator Asselin: Mr. Chairman, with your permission, one last question.

Mr. Minister, you claim that no motion to this effect was presented to the Committee. I would like to ask you a simple question; if such a motion were to be presented to the Committee, would you, as a minister of the Crown, advise your members to vote in favour of the motion?

Mr. Chrétien: I told you that many fine-sounding speeches were made from your side of the table and the government’s position has been known since the Committee started its work.

Senator Asselin: Not by all your members.

Mr. Chrétien: The Committee is master of its procedures.

Senator Asselin: Not by all your members of Parliament since there are some who see things differently.

[Page 76]

Mr. Chrétien: As I said, there have been lots of high-sounding speeches made on your side, but they have been nothing more than speeches, whereas we have entrenched both official languages in the constitution and guaranteed educational rights for French speakers outside of Quebec and English speakers in Quebec. Those are two very concrete steps.

Senator Asselin: Mr. Minister, my question is quite simple, would you accept a motion to that effect?

Mr. Chrétien: I do not vote in the Committee.

Senator Asselin: Would you advise your group to vote in favour of such a motion?

Mr. Chrétien: I am asking you whether you presented a motion.

Senator Asselin: And I am asking whether you would accept one.

Mr. Chrétien: Do you have a motion? Has your party tabled one?

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

Senator Asselin: It is easy to table a motion and to waste the time of the motion’s sponsor when all you have to do is tell your members to vote against it.

Mr. Chrétien: Where is your motion? We have heard about it for weeks.

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

[English]

Order please.

[French]

Order, please.

I would like to remind the members that we are debating an amendment and that it must be voted on before we deal with another one. Let us dispose of this one before starting on something new.

Senator Tremblay.

Senator Tremblay: Mr. Chairman, a short remark before I ask the minister a question of clarification.

I believe that this new section 44 which is being proposed today, follows upon a proposal which we made relating to Section 16 to 20. The new Section 21, which we have proposed would have allowed the provinces to opt in through a resolution which they initiated.

That particular motion, consistent with the point of view expressed in our speeches, and our contribution did not consist merely of speeches, seems to have been acceptable to the minister and it was agreed that the present amendment would be drafted in order to attain the same objective.

I feel that it is important to make this clarification in order to correct any erroneous implications about speeches which come to nought.

[Page 77]

Having said this, I would like some explanation about the way in which the principle of the amendment is to be applied, that is, the principle of opting in on the part of the provinces.

Contrary to our proposal, this amendment requires the permission of Parliament for a province to opt in. When we deal with the actual substance, we can consider the implications of this but, for the time being, I would just like some clarification. How exactly would the mechanism which you describe here work, Mr. Minister? A province, on its own initiative, would pass a resolution, as indicated in paragraph 44(2) and determine the conditions of its opting in relating to one or several of the provisions in Sections 16 to 20. The province would be free to define the conditions which best suit its particular reality. The provincial resolution would then be forwarded to Parliament and Parliament must give its approval.

What would happen should the way in which a province conceives its opting in as best suited to its particular reality not coincide with the way in which Parliament believes to be the most appropriate? With whom does the final decision rest?

Mr. Chrétien: We are talking about an amendment to the Constitution of Canada. We state that the initiative must come from the provincial government and if the Government of Canada is not satisfied, then it will not pass the resolution and the matter goes no further. I imagine that in circumstances such as you describe, the federal government would draw to the attention of the provincial one the elements which it feels to be lacking in the resolution.

Senator Tremblay: In other words, Parliament would have a sort of veto over the coming into effect of this provincial prerogative to opt in.

Mr. Chrétien: Do not forget that this provincial initiative concerns an amendment to the Constitution of Canada.

If a province wants to extend bilingualism to all its institutions through provincial legislation, it is free to do so. What we are talking about here is the entrenchment of such a principle in the Constitution. The provinces can do whatever they want in their provincial legislation, there is nothing to prevent them from doing so. But in constitutionalizing the provisions of Section 16 through 20, they will no longer be able to opt out bilaterally but will have to obtain the consent of the other provinces as provided in the amending formula which we will have. In such circumstances, in view of the irrevocability of this step, it is only normal that the approval of the Canadian Parliament should be required.

[Page 78]

You may argue that the Parliament of Canada might refuse such a request and theoretically it is true. You must remember the aim which we are seeking and which we debated the other day. When a province chooses to bind itself to Section 16 to 20, and in the case of Section 133 only bilateral action was possible, any further change would only be possible through the amending formula as it applies to the Charter of Rights. This was the understanding which Mr. Crombie and I came to in order to meet our two aims, namely to allow a province to opt in through such definitive constitutional obligations and to make this decision one of national significance by requiring it to be approved by the Parliament of Canada, reaffirming once again the principle of language equality.

Senator Tremblay: It seems to me, Mr. Minister, that rather than accelerating the process, you are slowing it down.

Mr. Chrétien: To a very slight extent, but I believe that the majority of the members of this Committee are convinced that this would have a snowball effect. It might take a bit longer but when such a request is made, I am sure that it will be quickly accepted by Parliament. Judging from the atmosphere in this Committee, if there had been a province other than New Brunswick interested in coming under these provisions, there would not have been any difficulty. When New Brunswick came to set an example for the rest of Canada, there was no hesitation on the part of the Committee, the decision was applauded by all 25 members.

I do not worry about the possible delay which you expect. On the contrary, things should proceed quite rapidly.

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

[English]

The Honourable David Crombie.

1650

Mr. Crombie: Thank you, Mr. Chairman.

As I understand the motion, I think it is as the Minister indicated, following the suggestion that we have made, the proposal from the Minister I think is satisfactory to us. What it does, of course, is to allow any province to opt into a specific type of language right; it does not need to be the whole of what used to be Section 133.

It allows for, first of all, a province to opt in a small step at a time if it wishes so, but certainly it does not have to go through the entire amending procedure in order to achieve it. Indeed, there is the principle of prior approval, that is to say if a province wishes to opt in on a specific part in Clause 16, Clause 17, Clause 18, Clause 19, or Clause 20, then it may do so following its declaration and the declaration of the Parliament of Canada, the Great Seal and all that.

It, I think probably raised some issues with respect to language rights in the country and I do not think I need, Mr. Chairman, to go over all of those because I and others spoke to those deeper fundamental questions on language rights before. I would like to say one or two things and it relates to the

[Page 79]

debate we had the other night and I will not dwell on it, but I think this is one case, Mr. Chairman, where I think all members of all political parties represented in this Committee would agree that what we have called the checkerboard is probably useful, and I do not want to drag up the whole question, but I think it is important to point out that we are not waiting for everybody to become New Brunswick, we are not waiting for everybody to become Quebec or Ontario or the federal government.

The way in which we are now approaching the question of language rights in this country is that we have a couple of models, as it were. Clause 16 is a clause that deals primarily with the federal government and New Brunswick as it stands at this time; Clause 17 deals with Quebec and Manitoba and New Brunswick; Clause 18 and Clause 19, Quebec, Manitoba and New Brunswick; Clause 20 again deals with the federal government and New Brunswick. There are a number of models that we can use.

I think, Mr. Chairman, that there is going to be probably more progress made with respect to language rights by this approach than any other approach. As I indicated earlier, I am not only opposed to the imposition of language rights, I am opposed to the imposition of any rights which the federal government has in its Charter on provinces, let alone language rights.

I think there is one thing that ought to be said, that maybe I can say it a little better than some others. When people speak of Ontario with respect to language rights, it is easier for me, or harder, I suppose, but perhaps more apt because I am from Ontario, I have not chosen to speak about language rights in British Columbia or language rights in New Brunswick or Prince Edward Island, or indeed, any other province I do not come from.

And if you think about that statement you will note that I do not come from nine provinces.

Senator Lucier: And two territories.

Mr. Crombie: I am sure there is a better way—and two territories that I am not from, Mr. Chairman.

The province of Ontario, as my friend Perrin Beatty said the other night, has its own sense of who it is and how it is going to go about its solutions to its problems in terms of the country.

It does not like anything imposed on it and I think the desire that is shown in this amendment will be enough. Let me call it the waiting chair amendment if I could, Mr. Chairman, because there is a chair waiting for any province which wishes to sit at the table of language rights in this country, and I think that is, at least it is easier for me to see it that way. Not everybody has to eat the same thing, but I think it is going to be very helpful the more people we can bring to the table and providing an empty chair is a clear invitation as well as a constant reminder that when provinces are ready to move in certain areas of language rights, everything is ready for them.

[Page 80]

Let me deal with one example and one specific in my own province. In its entire history, both as a provincial assembly and as an assembly during the Union years of 1841 to 1866, and prior to that, from time to time, as an assembly in the Upper Canada days, never a check except on one occasion, never was anyone refused the right to speak either English or French. Never.

I think that is important, Mr. Chairman, because we are not talking about something that is new when someone says: Should not people have the right to speak either English or French in the legislature of Ontario, or Quebec, or New Brunswick or Manitoba? That is the four provinces we use. That would cover 90 per cent of the francophone minorities and 100 per cent of the anglo minorities and it would go a long way to it, so I will only talk about those four provinces.

We are talking, therefore, about new ground. What we are talking about is far more complicated in a way, because the issue for us in the province of Ontario, and in the province of Quebec, I suggest, Mr. Chairman, over the next couple of years is not the issue of whether or not there will be services in both official languages because that is going at a great speed. Certainly, in the province of Ontario the expansion of services has been nothing short of phenomenal in a short space of time.

I think also, Mr. Chairman, it is not the issue of tolerance because Canadians, in my experience as I have travelled around the world, need take a back seat to no one on the question of tolerance. What I think the issue is insofar as strictly speaking being able to speak in the legislature of the province is the question of a right. It is the question of what is there and I think, Mr. Chairman, Ontarians that I know, when faced with the question: Is it fair for English-speaking Canadians to have the right to speak in Quebec, in the legislature, is it fair that French-speaking Ontarians should not? The answer to that question, would be, I have no doubt, a resounding “no”.

French-speaking Ontarians should have the same right to speak in their official language as English-speaking Quebeckers in legislatures of the two provinces. That is really the issue. It is a question of right.

And I think, Mr. Chairman, that if we focus on that we will make some considerable progress. I know that there will be people, for a variety of reasons, who will try and escalate the tension on the question, but I have found that Ontarians are as tolerant as anybody I know, they have done a pretty good job, and when that question is clear in their head that that is what we are talking about, I have no doubt where we will be.

So the waiting chair amendment is one which I hope all the members of the Committee will support.

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

Miss Campbell.

[Page 81]

Miss Campbell: Yes, Mr. Chairman. I think if you remember when Mr. Crombie introduced his amendment the other day I still had some questions left on that amendment, and today, since there has been such an accommodation between the Minister of Justice and Mr. Crombie, I might—perhaps, either one would like to answer, but I would like to have the question answered.

Now that we have allowed this opting in, well, we will have allowed it once we have passed the amendment, to any province, I am particularly interested in Clause 19(2) about the courts and I am just wondering how many provinces would be in a position or, from past experience in dealings, might want to attach themselves to this without undue delay.

Perhaps, Mr. Crombie, you might like to talk for Ontario on this because your amendment was certainly, your discussion that day, your talk on the amendment was definitely very, very good, and you may be able to tell us a little bit on Ontario’s position with regard to courts, but I would like the Minister to perhaps comment across Canada on the courts.

Mr. Chrétien: On the courts, in the matter of criminal cases, now that Ontario has agreed with the national government that now everybody in Ontario can have his trial in French, and it is because of the amendment to the Criminal Code and so on.

However, it could be entrenched in the civil laws, it is not applicable at this moment, but they are working on that and they have Committees on that in Ontario.

There is some discussion in different provinces of trying to make it possible, there is even collaboration. I think it is Mr. Hatfield who has offered Mr. Buchanan of your province that if they need support staff, he would be willing to extend that and we are discussing that with the provinces.

However, there are ideas available in that field, I do not know if it would be possible, but kind of a moving court, if we could use that expression, that could be available, or judges from French areas going in, and it might apply in reverse if need be.

However, we have discussed these ideas with some of the Attorneys General and because of the amendment in the Criminal Code we are making some progress and we have a definitive agreement with Ontario that might lead to Ontario, in criminal matters, to fill the empty seat as offered by Mr. Crombie.

Mr. Crombie: Can I comment? I know there has been discussions with the federal government and the Province of Ontario as well as other provinces on how to deal with the matter in respect to the courts.

It is a more complicated matter than the right in the legislature. That is why I chose the right in the legislature because we are talking primarily about important symbolic events as opposed to the extension of actual services.

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There is no denial of the right in the Legislature to speak French or denial of the ability to do so, but there is no saying of the right. It does not cost, or it costs very little to do that, so that is why it is an easier matter to deal with, with respect to the legislature.

With the courts it is more complicated, with criminal law and civil law. In 1979, if I am correct, Ontario adopted an amendment in the criminal code for the right to have a trail in the French language, that is now in place.

I think that there is one thing the Minister did not mention which is perhaps more hopeful, with respect to the civil courts. They have divided the province into ten areas, which covers, if my memory serves me right, about 75 to 78 per cent of French-speaking Ontarians, so as to more easily administer the resources for civil courts. The civil courts are more complicated than the criminal courts simply because of the need for resources, and it is not the same as New Brunswick because there are more people and the percentage of those people are fewer, so there are real problems, which the Minister is aware of, with respect to, particularly to civil courts in the province of Ontario in terms of providing resources. Indeed, they have talked about from time to time of having a limited time of five years, three years, seven years, whatever it takes to get it there. The Province of Ontario has always been very careful to make sure that it does not promise what it cannot deliver.

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That is why—and I simply emphasize again—there are practical matters which need to be dealt with. We should not avoid those; but we should not allow those practical matters to sink the important symbol, and that is why I like to focus on the legislature.

Miss Campbell: I have one question to the Minister, Mr. Chairman; and that goes back to the courts. I am a practising member of the Bar—a couple of bars. As well, the Canadian Bar Association, when they appeared before us, they really stressed the fact that we should have courts right across Canada that are able to accommodate either official language. That was particularly as it related to the criminal courts.

I reiterate that under this amendment you are supposedly making it easier for provinces to opt into any one of the clauses, in particular the one that interests me would be the courts.

From past association with the 10 provinces in your view do you think there is any reaching of an accommodation on the courts across Canada, aside from Ontario?

Mr. Chrétien: There is a great deal of interest in that at the moment. For example, there is a development of a common law section in the University of Ottawa in French. The same thing is now being developed in the University of New Brunswick at Moncton. This will create some momentum there; and with the fact that they are bound in New Brunswick will force

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a precipitation of terminology and documentation which will be of use not only in New Brunswick but also in Ontario.

But there are lawyers who practise in the civil law in those provinces who have formed committees to facilitate the program.

With this provision we are introducing today, in criminal matters my own personal opinion is that there will be some provinces which will join constitutionally, speech making in the national assemblies and in courts; there are judges now across Canada who take courses in French so that they would develop and have some facility in the language, if need be.

We are supporting many of those programs; but we have to push and push and do our utmost to make it a reality as quickly as possible.

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

The honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, I know we all want to get this done before 5.45 p.m. It is a very positive amendment which originated with the Opposition and which the Minister has agreed to.

But I would like to remind the honourable David Crombie that when he talks about the English in Quebec and the assembly—and I have spent 18 months there—that right does not flow from any provincial legislation. Indeed, when you talk about discrimination or prejudice, it is not unique. All peoples have a certain degree of it.

But I would like to remind Mr. Crombie that Bill 101 would have removed from the Quebec legislature the right of the English to speak English in the Quebec legislature.

When I arrived there, I insisted that I be sworn in in English; not because of any discrimination or prejudice that I had; but I was very aware of my rights as a Canadian enshrined in the constitution. It exemplified to me how fast our rights can disappear through provincial legislation.

I make that point. That section of the bill referred to the courts. The courts ruled, in their wisdom, that indeed the right of the English language to be heard or used in the Quebec legislature was throughout the constitution and could not be affected by provincial legislation.

But it comes back to the fact that the ultimate is enshrinement, and not in the goodwill of the legislation; because one never knows what the attitude of the next group of people might be. One never knows if all the good intentions of Mr. Davis would not be eliminated in 20 years by another government because in particular circumstances it saw things differently, and our history indicates that, shortly after confederation—right here in Ontario, Manitoba and other provinces. I do not propose to dwell on that theme.

Now, Mr. Minister, this is, indeed, an opting in provision. Are you satisfied that we are not setting any precedent or creating anything which would lead to an opting our process?

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Mr. Chrétien: No, because when you want to undo that, the amending formula would be involved and if you are bound in Clauses 16 to 20, it would involve other provinces, including the Province of Quebec; if you have the Victoria formula, the Quebec people and government would have veto rights for any other province to quit after it is entrenched.

Mr. Mackasey: It is only the Vancouver which would provide opting out?

Mr. Chrétien: Yes.

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

I see honourable members are ready for the vote.

Amendment agreed to.

On Clause 44—Amendments without Senate resolution.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 44.

Mr. Chrétien: Mr. Chairman, on Clause 44, I have a statement to make. As we already have a new Clause 44, we can drop this particular Clause 44.

The Joint Chairman (Mr. Joyal): As I have already said in relation to Clauses 25 and 26, when the Chair calls the vote on Clause 44, honourable members should answer “nays” instead of the usual “yes”.

The honourable Mr. Robinson.

Mr. Robinson: I would assume, Mr. Chairman, it is in order to speak in response to the Minister’s statement in respect to the dropping of the proposed clause.

Mr. Chrétien: Perhaps I should make a longer statement.

It is felt that under the present circumstances and in the light of the discussions that have taken place during the summer, and in the light of the report that was presented by honourable senators themselves on the reform of the Senate, it is seen that by moving on Clause 44 at the moment it would be a kind of partial reform of the Senate.

As we expect that to be a major item in the next round of negotiations with the provinces, we have stayed with the Senate as it is.

I know that any reform which would have been agreed by the provinces and the federal government, very reformist minded Senators would support it.

The Joint Chairman (Mr. Joyal): Mr. Robinson, followed by the honourable Jake Epp.

Mr. Robinson: Thank you, Mr. Chairman.

Mr. Chairman, the Minister has indeed confirmed my worst fears about the origin of this amendment—what I like to call—and I have Beauchesne’s ready and my Standing Orders ready.

But I would like to say, first of all, with respect that I would like to take a couple of minutes on it because it is a very important amendment which is being proposed by the govern-

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ment—what I like to call the Senate preservation amendment. Mr. Chairman, I suggest, in all seriousness, that this has to be one of the most cynical sellouts which the government is engaged in attempting to pass this particular package. I will explain why I say that.

First of all, Mr. Chairman, we have to understand very clearly what the government is proposing to do here.

In the original constitutional resolution, there was a suggestion that the Senate should have a 90 day suspensory power; that they could hold up constitutional change for 90 days, but that at the conclusion of that period of time, if the democratically elected representatives of the people of Canada chose to over-ride their decision, their wisdom, that it could be overridden.

Mr. Chairman, that was not good enough for the Senators! So, the government came in with another amendment and they said: “We will give you 180 days so your infinite wisdom can be expounded on the proposed constitutional amendment.”

An hon. Member: Shame!

Mr. Robinson: Well, Mr. Chairman, 180 days were not good enough. What the senators said they wanted was a perpetual veto power over all changes to the constitution of Canada.

An hon. Member: Hear, hear! Shame!

Mr. Robinson: Mr. Chairman, what that means—and it has to be clearly understood—is that by removing Clause 44 the government is saying that the Senate of this country can have a perpetual veto power on constitutional change.

Now, what is this body we are dealing with, Mr. Chairman—this body which the other day I referred to as being riddled with patronage.

Mr. Chairman, I think we should look perhaps at some of the historical antecedents of this body.

There have been many documents written on it. I can refer to a book called The Unreformed Senate by Robert McKay, who pointed out that historically the second chamber is the institutional survival of a predemocratic age, and that the Upper House in 18th and 19th Century constitutions represented, not faith in democracy, but a hedge against democracy.

Mr. Chairman, what was the intent of the fathers of confederation when the Senate was formed?

Well, I can quote from Sir John A. MacDonald. I have quoted from him before and I will do so again—at the Quebec conference of 1864. What he said was this:

The mode of appointment to the Upper House—Many are in favour of election and many are favour of appointment by the Crown. I am, after experience in both systems, in favour of returning to the old system of nomination by the Crown. There should be a large property qualification for the Upper House which is then the representative of property.

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Mr. Chairman, it is this representative of property which it is being proposed to give a perpetual veto on the amending process in this country.

Mr. Chairman, if ever the Prime Minister had to hold his nose while proposing constitutional change, I suspect he would have to hold his nose when presenting this particular proposal to the people of Canada.

An hon. Member: Right!

Mr. Robinson: Mr. Chairman, what are some of the other comments on the Senate of this country? It was said by Sir John A. MacDonald—and I have said this before and I will say it again, quoting from Sir John A. MacDonald that the Senate represented the interests of property. He said this:

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

Mr. Chairman, that was the purpose of the Senate—this bastion of privilege in the Canadian federation!

Mr. Chairman, how is it that this body, with its sweeping powers, unprecedented in any other country, these sweeping powers which even the British House of Lords do not possess, how is this two million dollar bastion of privilege appointed and to whom are they accountable?

Well, Mr. Chairman, they are accountable to no one but themselves. Some of them have a lifetime tenure; others are there until the age of 75, and they are responsible to no one.

Mr. Chairman, how did they get there? How is this body appointed, which is being proposed for a perpetual veto?

Well, let us look for one minute, Mr. Chairman—and I think the Canadian people should examine closely how they get there; how the Senators get there…

An hon. Member: How did Jack get there!

Mr. Robinson: How did Jack get there. Mr. Chairman, the fact that Mr. Austin in 1974—was the principal secretary to the Prime Minister and ran as a Liberal candidate in 1965 had nothing, I am sure, to do with his particular appointment.

But, Mr. Chairman, how did these Senators get there?

Well, I would like to quote from Goldwin Smith from the same book:

The Senate is a bribery fund in the hands of the government and paddock for the…

An hon. Member: Oh, oh!

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

I really apologize to Mr. Robinson for interrupting him.

But I would like to remind you of a ruling that was made yesterday. I think, Mr. Chairman, Mr. Robinson might be going just a bit too far in terms of the Standing Orders of the House.

It is true we are discussing here an amendment involving the role of the Senate and members of the Senate. Obviously you have to discuss the Senate.

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But to bring it down to an individual basis and the individual qualifications of Senators, I think, quite frankly, that apart from being improper, is contrary to the rules.

Mr. Epp: Possibly, Mr. Chairman, you can tell us when you are dealing with individuals, what is the rule of relevancy and what an individual has to do with the function of an institution which is constituted by law?

The Joint Chairman (Mr. Joyal): Before I read again Clause 35 of the standing orders of the House, I would like to say with all respect to honourable members, that I think all honourable members around the table knows that he has very strong views as to the use of the Senate, its role and its need for reform.

I am quite sure that when he speaks on those grounds, he has some support.

But if, in order to express his views, he resorts to quotations or takes some extracts of studies which have already been published, but in such a way as to try to raise what I would describe as irreparable doubt on the reputation of some individual in the Senate, I think he misses his point.

I would suggest to the honourable member that very fairly, because if he is to get some support—and I think his intervention is directed towards obtaining some support, then in all fairness he should try to seek that support in the context of the standing order of the House which very clearly says that the use of offensive words against either House or against any member thereof is not something which should be allowed in this room.

I think the honourable member yesterday had an opportunity to think over that matter, and it is within that context of mindful thought that I would invite him to continue.

Mr. Robinson: Thank you, Mr. Chairman.

I will be mindful of your admonition and of the Standing Orders in my remarks.

Mr. Chairman, I would like to continue with my statements with respect to the appointing process to the Senate, because, as I say, with great respect, this is a very important and a very fundamental amendment. Because what is being proposed by the Liberal party and supported by the Conservative party is that the Senate should maintain a perpetual veto power, unless through the amending power the Senate themselves decide to get rid of that veto power.

I think Canadians should know to whom they are according such sweeping powers.

Professor Wrong, a distinguished professor of political science stated that:

From the first, appointments to the Senate came under the mechanism of the party. The security of the position for life and the freedom from the labours of an election have made a senatorship a desirable crown for party service, and to this use the office has been put. No government, Liberal or Conservative, has made any serious effort to save the post of senator as a reward for any other kind of public service, and in the present condition of political thought it would be quixotic to expect that anything but party interests should be considered.

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Stephen Leacock, Mr. Chairman, stated:

Liberals and Conservatives combined, we made our Senate not a superior council of the nation, but a refuge of place-hunting politicians and a reward for partisan adherence.

Mr. Chairman. I will go on from this study of the appointment process of the Senate, because it is important to know how these individuals are being given such power in the constitutional processes of Canada, how they are selected by the Prime Minister.

The first claim upon a prime minister in making appointments to the Senate are those for services already rendered rather than for services to be performed by party support in the Upper House. Senatorships have often been granted as pensions to the “deserving poor” among party supporters in the House of Commons and provincial legislatures or as honours to editors of the faithful press, party organizers or to contributors to the war chest.

Mr. Chairman, as Professor Dawson wrote in this respect on the question of appointments,

It is a favourite device for an astute prime minister to keep his supporters eager, active, and toiling unceasingly until an election is near at hand, and then, having wrung them dry, to reward the most faithful by translation to a higher and more restful place of usefulness. Thus few appointments to the Senate will be made in the year or two before a general election is anticipated; and then within a few weeks of that event the vacancies will be rapidly filled.

The Joint Chairman (Mr. Joyal): Mr. Robinson, I am sorry, but you are now involved in a discussion at length on the way in which Senators are appointed. The purpose of the amendment does not deal at all with that very question.

I am sorry, but at this point I have to draw your attention to the rule I have applied with the same clarity and rigour that it was applied to all honourable members around this table and you are not the first one to whom the Chair has addressed in such a context.

We have a clause to deal with—Clause 44, a clause which does not refer in any way to the way in which honourable Senators are appointed.

I am sorry, but at this point I have to invite you to continue on other grounds that the one you are pursuing.

Mr. Robinson: Mr. Chairman, I believe it is 5.45 p.m. and I will continue at 8 o’clock.

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

Senator Tremblay: Mr. Chairman, Mr. Robinson appears to be so worried about the answer to the question: How do you get to the Senate? Speaking from personal experience, the answer is: Do not think of it before!

Mr. Nystrom: Mr. Chairman, on a point order. There is always one exception to the rule.

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The Joint Chairman (Mr. Joyal): On this note, the meeting is adjourned until 8 o’clock tonight.

EVENING SITTING

2015

The Joint Chairman (Mr. Joyal): Order, please. I would invite the honourable members to take their seats so that the Committee can resume consideration of the proposed motion on Clause 44, but before I call back the meeting on Clause 44, the proposed motion, I would like on behalf of the Subcommittee on Agenda and Procedure of the Special Joint Committee to submit to honourable members the ninth report of the Subcommittee.

I want to draw the attention of the honourable members that we have accepted to sit at 8 o’clock and when the meeting is called to order, it is usually because this meeting is late; and if honourable members want to continue and complete their discussion and have full opportunity to use the time at their disposal to put forward their comments and views, I think that they should come to order when the Chair opens the meeting.

The Subcommittee met on Tuesday, February 3, 1981 and agreed to make the following recommendations:

(See Minutes of Proceedings and Evidence.)

The Joint Chairman (Mr. Joyal): If there are no questions in relation to one aspect or the other of the proposed ninth report, the Chair will call the vote on the report. Motion agreed to.

On Clause 44—Amendment without Senate resolution.

The Joint Chairman (Mr. Joyal): I would like then to invite Mr. Robinson who was intervening on Clause 44 to complete his intervention, having in mind the remarks that the Chair addressed to him in the context of the discussion on Clause 44 and as the Chair I think has rightly said, Clause 44 does not deal with the appointments or the position or the background or the reputation of honourable Senators. It is in that context that I would like to invite Mr. Robinson to complete his intervention.

Mr. Robinson.

Senator Lucier: On a point of order.

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

Senator Lucier: Mr. Chairman, it is bad enough listening to someone for too long when they are saying something you like to hear, but Mr. Robinson has already used up 10 minutes of his five and you have given him another shot. I think it would be very hard to consider this one of the main clauses, which I think you have given great flexibility on, the clauses that we all thought were very important.

I have a problem believing that you should put this one in the same category.

The Joint Chairman (Mr. Joyal): It is certainly not a clause of the same nature as some other clauses that we have discussed and carried earlier; and I would like just to mention

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Clause 41 and Clause 42; but nevertheless, it is an important clause in the over-all context of the Parliament of Canada. It deals with the role of one of the two Chambers of this Parliament and I think that in that context the Chair, and I am quite sure that I speak on behalf of honourable Senator Hays, the Chair is certainly agreeable to receiving views, taking into consideration that there are no subamendments or amendments, but we are on the main clause as such, the Chair is ready to receive more extensive views than in the usual procedure, dealing with amendments or subamendments.

Your point is right, I think that we have other clauses to deal with too, and those other clauses, some are very technical in their nature, and the Chair will certainly not be in a position to entertain such a lengthy debate. Your remarks are appropriate and I would like to invite Mr. Robinson to take them into account when he is completing his intervention.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, certainly I will take the remarks of Senator Lucier into account and the admonitions of the Chair as well, and I will attempt not to be too lengthy; but Mr. Chairman, I do believe it is an important clause. I can understand why Senator Lucier would wish us to deal with it as quickly as possible, but I do believe it is a clause that should be spelled out very clearly and that in spelling out the effect of the clause that Canadians should be aware of the nature of the body to which we are giving such sweeping powers.

Mr. Chairman, before the dinner break, I was commenting on the appointment process and the nature of the appointments and the fact that Senators are accountable in fact to no one and that they hold office until the age of 75, if they are appointed after 1965; and before 1965 of course, they hold office as long as they wish.

Mr. Chairman, I had intended to go into some considerable length about my concerns with respect to giving a body which, as I have said before on a number of occasions, is replete with patronage appointments, the power to fundamentally veto major changes to the constitution; and I have many, many examples to back up that particular allegation, but I am not going to get into individual names.

I regret that I was even in a position of referring earlier to the background of one of the distinguished Senators on this Committee. I must say I did that in response to questions from one of my Conservative colleagues, and I recognize that if I were to go through the Parliamentary Guide and look at the political background and other backgrounds of individual members of the Senate of this Committee, or the Senate as a whole, that that would take far too long and I do not intend to do that.

But, Mr. Chairman, what I do want to attempt to make very clear is precisely what it is that is being done here in this Senate preservation amendment.

What is being done is that the government is yielding to what I would call the very scandalous blackmail on the part of a number of the government’s own supporters in the Senate. Mr. Chairman, if one looks at the sad chronology of this

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particular clause, Clause 44, in which there was initially a 90-day suspensory veto and a 180-day suspensory veto and now we are being told that the Senate, as I said before, is to have a perpetual veto on any changes. We have heard, Mr. Chairman, for example that at one point in this sorry saga the Senator said, well at least for heaven’s sake we want a perpetual veto on changes to the Senate itself.

Mr. Chairman, I suggest that the government in yielding to this kind of blackmail from their own Liberal supporters in the Senate is in effect making the very argument which I am attempting to make, because what they are saying is that they recognize that the Liberal Senators would thwart the passage of this document, this resolution, even it were accepted by a majority of the democratically elected members of the House of Commons. That does not matter. This body, this nonelected body, this house of patronage accountable to no one in a final stab at self preservation has made it very clear, apparently, that they do not intend to tolerate any interference with their powers; and that the only way that this resolution will pass through Parliament is if there is a Senate amendment, a Senate preservation amendment appended.

Mr. Chairman, as I say, I very much regret that the government has yielded to this kind of senatorial blackmail.

So, Mr. Chairman, in conclusion I would say that I hope the government will reconsider. I hope the government will recognize that we are not just talking about a hold-up in the Senate. We would hope that Senators would come to their senses and be prepared to accept the democratic wishes of the people of Canada as expressed through the House of Commons, that they do not have to throw the Liberal Senators a bone to get them to support this particular measure, that they should have more respect for the institution of Parliament than this final knuckling under to the pressures of their own people in the Senate and that we should at the very least, Mr. Chairman, restore the 180 day suspensory veto and not grant in the constitution of Canada a perpetual veto to a body which as I said is accountable to no one and which is in fact riddled with political patronage.

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

Mr. Irwin: Point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Mr. Irwin on a point of order.

Mr. Irwin: I appreciate good debate and good points, but I understand that by Beauchesne’s the word blackmail is considered unparliamentary and has been ruled so on two occasions, September of 1971 and November of 1977.

Mr. Robinson: Parliamentary or unparliamentary.

Mr. Irwin: Unparliamentary.

Mr. Robinson: Check the citation, what does it say.

Mr. Irwin: I am sorry, it is parliamentary.

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Mr. Chairman, in many of the things the member has said I agree but Mr. Chairman, there is a limit to any kind of taste in this debate. I think the honourable member is below what is considered reasonable taste as to what we have being doing in the last three months.

I know he is not going to retract it but I want to go on the record as finding it very distasteful in the circumstances.

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

Mr. Epp: First of all, to Mr. Irwin, and I would suggest, Mr. Irwin, if you were to ever defend me I think I would rather throw myself on the mercy of the court.

Mr. Irwin: Mr. Epp, if you did not have any better luck than you had in Manitoba I suggest that you get a whole slew of lawyers.

Mr. Epp: If you have better ones, just let me know.

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

Mr. Epp: Mr. Chairman, what we have before us here is what I guess you could call a majority building amendment.

An hon. Member: A deal.

Mr. Epp: A deal, namely that the Minister was well aware of the fact that there were some independent minded Senators on the Liberal side who could not agree to Clause 44 and, as we have being seeing, the Minister has been making various accommodations, to use a polite form, accommodations prior to this amendment today and now he has come in with the ultimate accommodation, namely that the so called 20 rebels in the other place were such that it was sufficient to bring in this amendment.

I want to say to the Minister that I find his approach very interesting especially in view of the consistency of action, that this action demonstrates in regards to Bill C-60, and if there is anything that can be said for the Liberal Party it is that they are consistently inconsistent because on Bill C-60, Mr. Minister, you are trying to do exactly what you did in this clause before the amendment.

Now, Mr. Chairman, regarding Mr. Robinson, I will get back to the amendment in a minute, Mr. Robinson can have whatever views he wants about a bicameral system and specifically about the Senate. I am sure he has attended enough NDP conventions where this motion has come up and they have voted faithfully to abolish the Senate. In fact, I think there is a gentlemen who has been around for a few years in their caucus that keeps on saying that as well. I forget his name, I think he was a member of this Committee originally, I have not seen him around too much in this Committee, but I imagine he is still getting the message across to others who are sitting here for them.

But, Mr. Robinson, you have been sitting here for a number of weeks on end and you have never complained when 10 honourable gentlemen and ladies from the other place have cast their vote either for or against an amendment. I find it passing strange that every time that did happen that you did

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not find the parliamentary system at best, being questioned by you. And you never did that.

The other point, Mr. Robinson, I would like to remind you of, I believe somebody once said in the House about the government constitutional proposal that this is a civilized process. I believe that with Mr. Broadbent if memory serves me correctly. I believe if memory serves me correctly you still regard him as your leader and that being the case, Mr. Chairman, I think Mr. Robinson can have his views but he probably protestsjust a little bit too much.

Mr. Minister, regarding your amendment to Clause 44 I am pleased that you have withdrawn the Clause 44 amendment. I think it was time that you came to your senses on it. A lot of us, and I want to give credit to Senator Roblin, Senator Roblin has been one of those people who have being saying for a long period of time that the Senate should be reformed and he has being saying that not without any conditions or without any personal favour and I think I have to say that because I know he is too modest to say it himself.

I am convinced as well that there are many honourable Senators. I believe I can say that as well, who know better than I, those of us who sit in the House, for the need for reform of the Senate and I think some of us should be a little careful when we say there should be reform of the Senate without looking at reform that should also take place in our own House.

That being the case, Mr. Minister, I am glad you have come to your senses, realized the importance of the Senate and also the value of the Senate.

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

Mr. Nystrom: Thank you very much, Mr. Chairman. I want to preface my remarks by saying that I have many good friends in the Senate. I started these remarks like my good friend Stanley Knowles always begins his remarks when he speaks about the other place. I really mean that, I have lots of good friends in the other place and throughout this Committee I have made many other good friends in the other place and I have immense respect for many and all of the Senators that sit on this Committee.

The very first letter I wrote to a member of Parliament was back in my second year of university in 1966, and it may be my last letter to an M.P. too, before I was elected. It was to Stanley Knowles and it was on the tonic of reform of the other place and abolition of the other place as is because he was very well renowned for always presenting a bill to Parliament to do certain things to the other place in this country, and it has long been a policy of our party that we abolish the senate as is.

Now, my friend Mr. Robinson has gone into a number of reasons and I will not be repetitive at all, but I do want to say that I am very surprised at my very good friend Jean Chrétien for the flip flops he has been doing on this particular issue.

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In the first resolution that came before us he said that the Senate should have a suspensive veto for 90 days; and then pressure was put on the government and when he brought in his amendments he said 180 days; and all of a sudden there is no longer going to be a suspensive veto but the Senate will have a permanent constitutionalized veto on any amendment to the constitution of Canada including the structure of the senate and the power of the Senate itself.

Now, my friend Mr. Robinson called this a bit of blackmain story; somebody said Mr. Robinson was being very distasteful for saying that and I really find it very distasteful that the Minister is making this change because I think it is very serious.

I want to say, first of all, that there has been a lot of debate in this country about an amending formula, and when this resolution was first made public the amending formula was to be suggested by the federal government, the six provinces under the Victoria formula, plus a resolution of the House of Commons and a resolution of the Senate could suspend anything for 90 days and 180 days. Now, all of a sudden, we are changing that and changing it radically.

I think members should think about what that means. It means no longer do we have Ontario with a veto or Quebec with a veto or the House of Commons with a veto, but now we are inserting a fourth entity with a veto, which is the Senate of Parliament with a veto and I think that is a major change to be throwing into our amending formula when we are about 95 percent of the way through the Committee process.

In other words, Mr. Chairman, it becomes a bit of a moving target; you have it one day, you do not have it the next day. We have had complaints from the Conservative Party about flip flops on certain issues by the government. Well, Mr. Chairman, you have just observed tonight another flip flop by the government, because the provinces are all assuming this is what the government is going to give us. Members of this Committee were assuming this is what the government was going to give us, but all of a sudden tonight there is another flip flop and my friend Mr. Epp agrees with that. He agrees with that.

I find it quite reprehensible that the government, who have most of the Senators in the other place, cannot crack the whip, that they cannot discipline their people in the Senate, that they cannot persuade their people in the Senate because the information that I have is that they are afraid that if they leave Clause 44 in here there will be a revolution in the other place, a real revolution. This bill may not go through, this resolution may not go through.

Somebody said the white haired resolution.

An hon. Member: That was Epp.

Mr. Nystrom: So I think blackmail, of course, is a very heavy charge to make. I think Mr. Epp was starting to say something about the word buy but I will let him speak for himself. He passes me a note, maybe I can speak for him here.

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He says the government is willing to act unilaterally against the provinces and not against the Senate. I think that is a very good point.

I would really like to ask the Minister why he is not able to crack the whip in the Senate, and most of the senators there are Liberals and why can he not do this?

Mr. Chrétien: I have been impressed by the work of the Senators in that Committee. Second, I do think I said that during the summer when we saw that the First Ministers were interested in the reform of the other place, they prepared a Committee on that and they have said in their report that they were willing to accept some change. Third, I said that it is a very partial change we were proposing and I do think in the next round of consultation with the provinces this question of the reform of the Upper House will come back and any reform that is reasonable will be acceptable to the Senators, this I know.

One of the complaints was that they thought it is a partial job. Not knowing exactly what will be the end result, so with the disposition of the Senate about reform, with the ouverture d’esprit that they have shown in the report, the contribution they have made to this Committee, the wish of the members of the Committee, if we take a vote on that it will be very convincing. And now they reproach me to be democratic, to accept wish of the Committee. I think that I see that are complaining. Some others might have some interventions, but I gave the explanation and there is no point to belabour the point, we will come back to this problem in the next round of constitutional debate with the provinces.

We spent a lot of time last summer and the Senate has recognized that and if we take the old reform of the Senate, not partially but in one shot, we might have a good result. That is the gamble I am taking.

Mr. Nystrom: Now, Mr. Chairman, I am very disappointed in what the Minister is saying. What we are doing here is something that is very serious. He says we can maybe come back to reforming the Senate in the second shot, or the second round, but I want to remind you, Mr. Chairman, that the Senate itself will have a permanent veto on its structure, on its powers.

We are constitutionalizing the powers of the Senate as is, and this body that is not democratically elected, that does not have any responsibility to the people in any democratically elected way, will have the right to determine their own future. I mean, they have a veto, and it seems to me that while we are doing such a radical thing in terms of amending our constitution now and patriating the constitution, determining an amending formula and doing many things unilaterally, it Passes a bit strange to me that we do not insist that we choose in this country an amending formula that does not exclude the Senate. It seems to me that it is very, very strange.

The big debate in this country is the amending formula. The Minister says that all we are doing is implementing the status quo. We need a motion, a resolution from both Houses. I want to say to you that the big debate is over an amending formula

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and we do not really have an agreed amending formula. We have had some experts come before this Committee and say, “Well, we have a constitutional convention that we need the consensus of the provinces”. Some people say that you need unanimity of the provinces, some people say we only have a practive, we only have a tradition, we only have usage in this country.

Well, whatever we have, it is a bit unclear, but it is not going to be unclear what we have once this resolution goes through.

If the federal government gets its way in terms of the Victoria Charter we will have a definite amending formula and all of sudden today, on February 2 or February 3, we are all of a sudden finding out there is a radical change in the amending formula and the Senate is given a veto, and I do not find that very proper to see this kind of a surprise sprung at the Committee at this late date.

I am also going to say a few words of wonderment, I suppose, at the Conservative attitude. And here I speak directly, I do not see Senator Tremblay here, but I see my friend Mr. Epp. The Conservative Party has made a great deal about the fact that the government has not recognized this is a real federation, that we should respect the federative aspects of Canada.

I want to say to you that in my opinion, the Senate does not respect the fact that Canada is a federation.

Now, I realize, Mr. Chairman, that Senators are appointed from different provinces, some even have to by a condominium in one province to make sure they qualify because of the residency requirements. I will not name any names but you can speculate on that.

However, I want to say to you that if you have a true federation, and if you have two Houses in that federation, in most parts of the world one of the Houses represents the provinces or the states or the regions, like the United States; in the American Senate you have two Senators from Rhode Island, two from California, and that those Senators are chosen and elected from the states. However, the big difference about this Senate we have in this country is that there is a bit of a hangover from old unitary state in England where the Senators are all chosen by the central government, and that is not federalism.

I would like to see Mr. Epp tell us how the present Senate reflects the federative aspects of our country. You cannot be federalism when the central government and the Prime Minister decides by himself who all the Senators are going to be. And I want to say to the Conservative Party, by constitutionalizing the powers of the existing Senate it is going to be very nearly impossible, unless the Senators agree to change that institution, to change its powers and make sure that if we do have another House, that it truly represents the fact that Canada is a federation, that we have a partnership of the federal government and the provinces, and I find that very difficult to accept when I have heard for many, many weeks the Conservative argument that we should respect federalism.

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And I think the Senate, as constituted today, is not very respectful of federalism.

Now, Mr. Chairman, I do not want to go on at great length, I want to reiterate in closing that my friend Mr. Robinson has said many things about the fact that the Senate is not responsible to anyone electorally, he said that it is terribly undemocratic, that they have too many powers for an undemocratic institution, they are not elected. It is basically an institution that is a hangover from our old colonial past and, in my opinion, you also have another important aspect that he did not refer to and that is that it does not reflect the federative nation aspect of our country and our party wants to abolish the Senate as it is, but we are also looking at the idea that we do need perhaps another place and we call it the council of the federation, but in the Council of the Federation each province should have equal representation and those representatives should be appointed by the provincial governments, by the provinces, not by the central government.

Some people say “elected”, at this stage we are saying “appointed by the provincial governments”, but the important thing is that they are chosen by the provinces to represent the provinces in the sector. In other words, you are bringing the regions into the centre, you are not counting on the centre to appoint people that abide by their political philosophy from the regions, that is a very important point.

And I want to make that one last appeal that if we drop Clause 44 we are perhaps denying forever the possibility of reform of the Senate, we are perhaps denying forever the possibility of changing it to make it reflect a federation in this country and enshrining one of the things I think is wrong, that the second house is appointed solely by the government in power and the central government in power, ignoring totally and absolutely the provincial governments and the provincial legislatures.

In closing I use my own province. We do not have a single elected liberal in the province of Saskatchewan provincially, there are 45 or 46 New Democrats and about 15 or 16 Conservatives. In Alberta the same thing, we do not have any Liberals. In British Columbia there are no Liberals, in Manitoba there is only one Liberal.

Senator Roblin: Two Liberals.

Mr. Nystrom: I think it is only one Liberal, just one in the provincial legislature.

If we have a second chamber that is to reflect the provinces, that is to have the regional input at the centre which I think is so important, then how, when the Liberal government is in power here in the center, how can you justify nearly all of the appointments from these regions coming from the Liberal Party. And I realize we have exceptions, we have Senator Roblin sitting here and we have people like Senator Manning and others, but the overwhelming majority of the appointments in western Canada come from the Liberal Party and I think that is a violation of the federation. I think it is one of the reasons why there is alienation in this country, because people feel in places like the west that they are not truly represented in the institutions in the center of this country, and I am not referring only to the Senate, you can go to the

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Supreme Court and you can go to many other institutions. However, we can do something about the Senate tonight and if we let this opportunity go by we may not have it again for years and years and years.

I know a lot of Senators want reform. I have immense respect for the ideas of Senator Jack Austin, he talks about proportional representation in the Senate from the provinces, that is an idea that I think is well worth looking at. But we have no guarantee that any of these ideas can be taken permanently when the very institution we are trying to change has a veto over the changes in the powers of that institution. And here this is no reflection on the individual whatsoever, but they are human beings like any other human beings and many of the Senators have, I suppose, a conflict of interest in terms of radically changing that place because as they change the place they may not be there, and the likelihood is that most of them would not be there.

I just think that places a very unfair burden on their back and it is being very irresponsible of us to give them that power, and I appeal to the Minister to consider those words and appeal to the Minister to take this chance to go down in history and solve one of the problems that has plagued this country for a long time and that is how do we change the other place constitutionally. We can do it now. If we go to Westminster and change a lot of other things unilaterally, then why can we not go to Westminster and do this unilaterally as well?

Mr. Epp: Mr. Chairman, can I answer some of the questions Mr. Nystrom directed?

The Joint Chairman (Mr. Joyal): I have Senator Lucier, too, and the Chair would be inclined to invite Senator Lucier and then honourable Jake Epp.

Senator Lucier.

Senator Lucier: I just have a question, Mr. Chairman, it is not a intervention.

I just wanted to ask Mr. Nystrom, the Minister often says you cannot have it both ways; you are telling the Minister that he is dropping Clause 44 because he cannot get it through with Clause 44 in there, and you are telling him to leave Clause 44 in; you are saying if he drops it that we are going to have a permanent veto; we have a permanent veto now. I am trying to catch the logic of your argument, Mr. Nystrom. How can you tell the Minister he has to leave this in there in the same breath that you are telling him if you leave it in you are not going to get it through. We have been working three months on the package that you are prepared to support because there have been a lot of changes made that you asked for and you are now asking him to do something that will kill the package.

I would like to have you maybe explain this for me.

Mr. Nystrom: All right. Thank you, Mr. Chairman.

1 think I heard my good friend Senator Lucier’s comments correctly, he said, “We leave it in, that will kill the package”. Now, perhaps this is…

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Senator Lucier: Mr. Chairman, on a point of privilege. Mr. Chairman, I did not say that, I said that is what you said. I did not agree to that, I was repeating your words.

Mr. Chairman, it is Mr. Nystrom who said that.

Mr. Nystrom: I did not say, Mr. Chairman, that that would kill the package, I said my understanding is that the Minister is afraid if he leaves it in it may not pass the Senate, and I made it very clear that I thought the Minister should call your bluff. He should call your bluff, he should leave it in and see whether or not you dare hold up the package. That is my challenge to the Minister tonight, leave it in. The overwhelming majority of Senators are Liberals and if they want to hold this up because they want to preserve the power to constitutionalize an undemocratic institution, then let them try and do that and answer to the Canadian people. Call their bluff, Mr. Minister.

Mr. Chrétien: Talking about it and all those brave words about provincial rights, I would like to just refer the honourable member to the words of the Supreme Court about the Senate reference. It says that the primary role of the Senate was to represent provincial and regional interests. That was the Supreme Court of Canada that has been quoted many, many times.

So I have an ally there, the Supreme Court of Canada.

However, I do believe in the reform in the Senate and I do believe that the Senators believe in the reform of it and I think that if we come with the proper and reasonable new Upper House that will meet the regional and provincial aspirations and so on, it will be—I have talked to a lot of Senators and they will show their good sense on that. I am not afraid, it is not blackmail, it is just that I said earlier I am satisfied in my own mind that the Senators in the talks that I have had with them, that they will be happy to go along with the total reform of the Senate when the time comes and we do not have to bypass them and use a trick, they will face the reality and oblige according to the wishes of the provinces and the House of Commons.

An hon. Member: You have no guarantee of that.

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

Mr. Chrétien: I talked to them, I gave my convictions, but they are gentlemen and their word is as good as mine.

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

Honourable Senator Roblin followed by honourable Bryce Mackasey.

Mr. Chrétien: I said gentlemen, but there are gentle girls.

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

Mr. Chrétien: He is getting tired.

Mr. Mackasey: Will the gentle person listen to a question, please?

[French]

Mr. Minister, I’m sorry.

Mr. Chrétien: Please, Mr. Mackasey.

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[English]

Mr. Mackasey: Mr. Minister, I was a little late and I just wanted to ask you a question rather than ask Mr. Nystrom. Did you state, or put it another way, has any Senator or groups of Senators suggested to you or told you categorically that if you proceed with this clause they would refuse to go along with the resolution?

Mr. Chrétien: No, none have told me that. Some have thought but never one challenged me.

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

Senator Roblin: I think I better start by saying, Mr. Chairman, that I am a Senator. I have got many friends in the House of Commons, I have been told, and that is a comforting thought.

I must say that I am rather enjoying this stern if somewhat dogmatic disapproval of the idea of an appointed Senate that has been expressed in the last few minutes and before the supper hour. I even have no objection to the name calling that went on, because after all that is a recognized parliamentary procedure, provided it is done with a certain amount of polish and style and finesse. If you choose your words in a careful and cultivated manner there is almost anything you can say in a parliamentary body and still stay within the rules.

Now, I happen to think that Mr. Robinson’s statement followed the rules but I do not think I would ascribe to his statements a very considerable degree of polish or style or finesse. He rather charged right at the target and he let it have it the best he had and that is all right with me.

Now, I want to make it clear that I am not among that group of Senators who have issued any statements, either to Ministers or to the press or talking to themselves about what they are going to do if Clause 44 were to remain in this statute. I do not want to see it remain in the statute and I will explain why before I get through, and then anybody who likes to call my bluff on the matter and I will tell him right now I am going to vote against this proposition root and branch when it gets into the Senate.

I am going to do my level best to persuade other Senators to do so, because as the rules stand at the moment it is my constitutional duty as I see fit.

I do not think I can be deterred from taking that action by anything that the government proposes, let alone anything else that we have heard in the last little while.

Now, while the discussion concentrates on the principles appointment, it held my attention; because if you can provide—and I think you can—a rational argument as to why the system of appointment in the Senate in Canada today is out of date, out of style and out of touch with the democratic environment in which we live, I, for one, would have to agree.

I have been making noises in the last little while on the reform of the Senate which would involve an election to the Senate, rather than a continuation of the present system of appointment.

I do not think I want to venture on to the task of defending any of my fellow Senators from any of the charges of patron-

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age or of bribery or of blackmail or whatever else was said about them. I suppose they can talk for themselves pretty well.

But I repudiate any such inclinations myself, and I dare say that goes for most, if not all, of them.

On the ground of simple justice I think the contribution some Senators—the present speaker excluded—made to this deliberation and to others in which I have taken part, indicates that they are not quite as useless as is sometimes alleged in discussions around the country.

But I can understand why the principle of appointment does not appeal to the Canadian people in my opinion as the right basis on which a Senate should be constructed; and I certainly must say I agree with that point of view.

Now, we have been charged—somebody has been charged— with ignoring the federal character of the Senate. I think the concept of the Senate should be represented in a better way than it is now. The regional views are well founded.

In my opinion—and I have said it before—a Senate that is elected I would suggest on the basis of proportional representation so that every party or every substantial body of political opinion in the country would be represented in the Upper House would be a good thing to consider.

I have suggested that under those circumstances the Senate can be elected in variety of ways, as the House of Commons is, the way provincial legislatures are: there is an idea for you! Or perhaps it can be elected at a separate period altogether.

If you are to do that and carefully consider the powers given to it, so that it would not interfere with the essential functions of the House of Commons, the essential primacy of the House of Commons in selecting the government, supporting the government, and replacing the government, when necessary, then I think there is a very useful role for the Senate on reformed elected basis of proportional representation basis to fulfill.

There might be responsibilities of a special character with respect to constitutional matters, because they would then be a much more regional representative body than they are now.

We could consider what number should be allotted to each province; perhaps the present system of regions has outworn its time; we could say that certain senior federal officers, such as members of the supreme court or the head of the Bank of Canada might receive consideration in the Senate before appointments were confirmed.

All those possibilities are wide open before us.

There is nothing in this present bill, in our opinion which makes it inevitable that those interesting innovations in the second chamber of the house might not be called for and desirable.

I find it extraordinary—and I must say with all candor that Mr. Nystrom is unable to contemplate the Prime Minister appointing the Senators, but finds it quite okay for the Premiers to appoint the senators. Well, exactly the same grounds of appointment! I find it just as objectionable that the

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premiers should appoint the senators, just as I find it objectionable that the Prime Minister should.

Once you depart from the principle—and I submit—the principle of direct elections—once you depart from the principle of direct election for the Senate, then it seems to me that you are faintly compromising the use of that body as a body which is going to represent regional opinion in this country, and a body which will have the moral authority which I am doubtful about at the present time, though I still maintain it, which has the moral authority to contribute the House of Commons from time to time when matters of an essential character are referred to it for consideration.

So, I want to place those views on the Senate on the record because in view of the fact that the matter has been brought up in the way it has, it ought to be.

I do not think that the condign disapproval based, I rather gather on personal references, to the members of the senate is constructive in going about our problems.

It would be much better for us if we brought down to brass tacks as to how a second chamber should be designed to suit the interests of the 20th Century in this nation of ours.

Now you will say to me, what are you going to do about the clause. Well, I am going to tell you what I am going to do about the clause.

I am going to oppose the clause. If it was in the bill I would have opposed it. Why should I do so, after all I have said about an elected senate? Well, very simply, I do so because I am a good federalist.

I remember when the Supreme Court of Canada, which was quoted here a little while ago tonight, was asked to consider whether the federal Parliament, which we represent here today, had the constitutional authority to change the senate in a number of particulars.

On the absolute case in question as to whether or not the Parliament had the power to restrict the operation of the Senate in respect of the passing of laws after a certain period of time, that matter was directed to the attention of the Supreme Court.

I am going to read the citation because it is interesting. Section 2(0 of the question put to the Supreme Court in 1978 in respect of the power of the federal Parliament to amend the Senate asked this:

Could it provide that bills approved by the House of Commons be given assent and the force of law after the passage of a certain period of time not withstanding that the upper house has not approved of them?

That is precisely what Clause 44 says. The Supreme Court said that the Government of Canada could not do this kind of thing because it trenched on the essential federal character of our country and the relationship between the provinces and the federal government. That was the precise point of their decision, and the precise point of my objection to this Committee approving Clause 44 if it had been put into this constitutional bill we have before us now.

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But it has been withdrawn, so I do not object to that. But that, by no means, however, dampens my enthusiasm for a thorough-going reform of the Senate along the lines I have discussed.

I want to say one thing which is purely a matter of opinion and which I cannot prove. But I say this because I am convinced, that when the Senate is asked to accept a reform of its own power and responsibility and formation, its decision will be made on matters of principle and not on matters of personal interest.

There will not be a situation where the Senate of Canada will block something that the people of this nation want, once that want is thoroughly demonstrated. I am going to ask the Senate to block the passage of this bill, because I do not think the will of the people of Canada has been demonstrated, that we have the consensus or the legitimacy to proceed—and that is what we are there for—under the present constitution.

I am going to use all the powers of persuasion that I have to ask the Senate to reject this measure.

But I say if I were asked—and I think if every other member of the senate was asked—to agree to a sensible reform of that institution along the lines I hope I have proposed, that the Senate would not be found wanting in rising to its responsibility.

Dealing with the fundamental requirement and policy that the Canadian people require, the Senate will never block the people of Canada in a decision of that sort in my opinion.

I want to encourage the Minister that, although I have no faith at all, in his constitutional proposal I have very little faith in his two period in which he says we are going to reform the world and change all of the things we have not changed now, I have no faith at all, really, that he is going to succeed; but I want him to try—to try to bring before this Parliament and this nation a reformed senate, a proposal for a reformed senate which will make it equal to its responsibilities in the second half of the 20th Century.

If that happens, the Senate will not withhold its assent.

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

I still have at least two other names.

Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Chairman. I was moved to speak by Mr. Robinson’s interjection in the first instance. I wanted properly to pay tribute to the two senators who have helped us on this side of the table to learn a great deal since the beginning of the summer, going as far back as the beginning of June, and who shared their wisdom with us.

One of them was Senator Roblin, who has just spoken and made clear to the Canadian public the wisdom, of, at least, some senate appointments; the other is Senator Tremblay.

Now that is not to denigrate the contributions of other senators. But we have spent many more hours with them and I think it should be said and said publicly, and I wanted to say that.

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Senator Roblin, in his concluding remarks, spoke to the essence of the government’s recommendations.

In essence, what Senator Roblin was saying is that regardless of how constituted, that a true federal system requires two chambers; one based on the principle of population which is the House of Commons; and a second based upon the principle of, I believe, the nation states, our present senate is constituted on the basis of regions. I hope as a matter of reform, we will achieve some degree of equality of the provinces in that second chamber.

But I also say that the existence of this resolution and the manner in which it has been presented to the House of Commons and the Senate in the first instance; the kinds of decisions which have been made by this joint committee in terms of the haste with which we are dealing with it, the incident of closure both in terms of time and the lack of ability of this Committee to call witnesses that it wants to hear, are a product of what I believe to be flaws in the House of Commons itself.

Those flaws in the House of Commons at least are potentially capable of correction by action of the Senate, and in particular, the power of the Senate to exercise a veto over an elected chamber.

Mr. Robinson would have you believe that it is the Senate which is riddled with patronage. Those of us who have served, even for a brief time in the House of Commons, would have done well to pay attention to some speakers earlier today who dealt with the power of a Prime Minister. If we want to, we can use the synonym, political leader. But those people in our system wield tremendous over those who are elected within party labels. There is considerable patronage within that system. It ranges from small things such as the approval of trips, to larger things such as the designation of committee chairmen or membership in this Committee itself.

The ultimate probably for most members of parliament would be to serve in a cabinet, and we serve in a cabinet totally at the whim of a single individual called the political leader.

With those kinds of systems which operate within the House of Commons, that power which flows from political leaders or prime ministers can be a considerable pressure to distort the responsibility which all others have in the initial instance to represent our constituents.

I think members of this Committee, whether in the House of Commons or in the Senate, if they could stand back from the process, would be hard pressed to defend the process which finds us developing preeminent law, the words which would guide us in an atmosphere of the kind which has existed since this bill was first laid on us.

In that context, and if my view is correct that this process and the content of this process is dangerous for the continuation of the federation, and I believe it is, that process can be stopped, and may in fact be stopped by the courts.

It can be stopped, and may in fact be stopped by the Parliament of a foreign country in Westminster; it can be

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stopped, and may be stopped by some kind of revolution—the declaration of independence of one or more of the provinces.

But the most desirable way to stop it would be in the House of Commons itself, and I told virtually no hope for that, after having sat on this committee these several months.

But having watched and read much of the debate in the Senate, when the resolution was first introduced, I hold out more hope that in fact the widsom in that chamber of a sober second thought will in fact succumb to the kind of persuasion exemplified by Senator Roblin and exercise the veto which they now enjoy and which I would urge the members of this Committee to vote in a manner consistent with the continued enjoyment of that veto.

The House of Commons is not,—cannot, be the perfect forum. It needs to be balanced by a second chamber and it needs to be accountable to that second chamber in a nation like this, and that second chamber needs to protect those vital provincial and regional interests which the Supreme Court has told us it should do.

Thank you, Mr. Chairman.

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

Mr. Tobin.

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

I want to be very brief. I simply want to explain that I will be abstaining from this vote. I want it to be clearly understood that I dissociate myself from the remarks of Mr. Robinson and some of the remarks made by Mr. Nystrom.

I think the Senators have done an excellent job in Parliament.

Indeed it can be said that Senators have done perhaps the best committee work on Parliament Hill.

I believe in senate reform. I do not propose to enter into details. I was interested in some of the comments made by Senator Roblin.

But I simply want to state that I do not believe that the Senate should have entrenched in the constitution an absolute veto power. For that reason, and that reason only—and I want it to be clearly understood that I do not support and I do not associate myself with the remarks of either Mr. Robinson or of Mr. Nystrom. I will be abstaining, Mr. Chairman.

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

The honourable Ray Hnatyshyn.

Mr. Hnatyshyn: Thank you, Mr. Chairman.

I want to make some brief remarks with respect to this move on the part of the Minister to withdraw this flip flop, says Mr. Nystrom. I am surprised, that frankly, that Mr. Nystrom is surprised that this particular move has taken place.

I had no doubt in my own mind that this provision would never see the light of day.

I detect a sense of sanctimony and protestations on the part of Mr. Robinson and Mr. Nystrom with respect to this atrocious action on the part of the Minister.

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The New Democratic Party—and I give them credit—a long tradition of promoting the idea of abolishing the senate.

I can recall a few years ago that the leader of the New Democratic Party was on the floor of the House of Commons and in public, on behalf of the party, the House leader of the New Democratic Party took that position.

We all know what happened and where he is today.

So I just want to remind Mr. Nystrom and Mr. Robinson that they do not have to worry about railing against the Senate because there is still hope for them to attain that high office!

In one of my very innermost moments, I have to take some credit for the note that was passed to Mr. Nystrom with respect to the unilateral action on the part of the Minister and this government.

I observe, too, Mr. Epp, when we discussed this matter, the fact that the government was afraid to move unilaterally against the senate, the provinces had made a great serious error in this country. They did not retain the senate to defend their interests, otherwise they would not have any concern about intrusion on their rights at all; and they have such a dowdy band defending their interests!

But the fact is there have been a lot of changes. And I do not think that what would have happened is that we would have seen the constitutional package defeated. I do not believe the Senate would have done that.

I think the Minister is moving along in the way in which he has been doing in the past, making deals where he can get the package through as quickly as possible; and this is wheeling and dealing that the Minister is engaged on.

He does not only deal with the Senate and try to get them on his side in these proposals. Last week, he saw the Attorney General of Saskatchewan here all week in closed meetings with members of the government and advisors and he went afterwards to see the premier of Saskatchewan in Hawaii.

And I want to say from what has transpired that the government has been accused of using Mau Mau tactics, but now it is mauri-mauri tactics!

We are used to this. I do not know why we are all so surprised at this move on the part of the Minister! He knows he has to grease a few palms. He is going to grease Saskatchewan if he can get them on his side and help them with this package through; and the Prime Minister has his own personal deadline with respect to getting the whole package through.

We all know that. So let us not be naive about what is happening here, and having this feigned outrage.

I want to say that the fact of the matter is that we know what the government is up to, and it is not a very civilized way of dealing, quite frankly.

Mr. Broadbent might say so.

But I simply want to point out to the New Democratic party that at least I foresaw this and I am not shocked. It may be that tomorrow we will be in only to find they have made a deal

[Page 107]

with the Province of Saskatchewan. Who knows with whom the deal will be next time?

An hon. Member: It might even be with Ray Hnatyshyn.

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

Mr. Irwin, followed by Mr. Lapierre.

Mr. Irwin: Mr. Chairman, I will be brief.

Anybody who has been watching these proceedings from the start or part of them, one thing they would realize is that the role of the Senators on this Committee has been impressive.

If you look at the Senate, there is good, mediocre; but on the whole—on the whole the Senate of Canada is a collection of experienced and fine gentlemen.

Now, you are worried about a veto. Let us go back in history.

When the Right Honourable John Diefenbaker took over the reins of government, there were very few conservative senators, and I think during the whole period that he was prime minister of Canada, the Liberals had a majority of senators. During that whole period there was only one veto from that Senate. There was only one bill withdrawn.

Now, if Mr. Robinson you are serious about senate reform, I would refer you to one of the best articles on senate reform in 1971 by a Senator—Senator Connolly.

Now he has twenty questions on improving the Senate which should be answered, 19 of which were better than yours.

So if you are serious about it, then deal with it seriously. But do not say let us abolish it.

2115

Think about just the contribution to this Committee just in the last couple of days. Would there have been, I ask you, any interest in the Northwest Territories if it had not been for Senator Lucier. I doubt it. There was regional participation and it has been helpful to this Committee all the way. I think when this bill reaches the next stage, if it reaches it in any form that is commendable at all it will be in large part due to the contribution of the Senate of Canada to this particular Committee.

Mr. Robinson: Mr. Chairman, would the member accept a question.

The Joint Chairman (Mr. Joyal): I think at this point the Chair has really to come back to the basic rules. I have listened very carefully to all honourable members who took part in that debate, and I have to tell you very frankly that many of the interventions were not dealing with the content of the proposed Clause 44.

At this point I think I would like to invite Mr. Jean Lapierre and suggest honourable members to proceed with the vote after that. Mr. Lapierre.

[French]

Mr. Lapierre.

Mr. Lapierre: Thank you, Mr. Chairman.

[Page 108]

Unlike my good friend, Mr. Robinson, I do not wish to decide on the merit of the Senate and the Senators. I think that now is not the time to make ungracious remarks about those with whom we have enjoyed such a good relationship since the beginning of this Committee’s sittings.

I refuse to call those Senators tools of patronage, as Mr. Robinson did, because they were singled out by destiny and they have every right to be sitting here.

Since the proposed resolution was first introduced, I have strongly defended most of its clauses, including Clause 44, although I find inappropriate for a non-elected body to have a right of veto over and above the elected members of the various legislatures and of the House of Commons. That has nothing to do with the competence of those who have the privilege of being Senators. Since we want to avoid all possible deadlocks, I would prefer, however, that this clause remain as a matter of principle in the proposal.

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

[English]

As I said previously in relation to Clause 25 and Clause 26 the Chair has been informed of two amendments in relation to Clause 44. Those amendments contained the proposal that Clause 44 should be deleted so I suggest to honourable members that when the Chair will call the vote, the usual vote on Clause 44 the answer of the honourable members should be on the contrary of what they usually are that stems from such a call if they want the deletion of Clause 44. Shall Clause 44 carry?

Some hon. Members: No. Recorded vote.

The Joint Chairman (Mr. Joyal): The Chair has been requested a recorded vote.

Clause 44 negatived: yeas, 3; nays, 19.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 45. The Chair has not been informed that there is any proposed amendment in relation with that clause, and unless there is a proposed intervention on that Clause 45 the Chair will call the vote on Clause 45.

Clause 45 agreed to.

The Joint Chairman (Mr. Joyal): In accordance with the previous agreement that honourable members had around the table it was agreed that after the honourable members would have completed their studies of Clause 41 to Clause 45 they would come back on Part IV of the proposed motion. That Part IV is entitled Interim Amending Procedure and Rules for its Replacement

[French]

The Joint Chairman (Mr. Joyal): The honourable members will remember that they agreed to come back to Part IV entitled Interim Amending Procedure and Rules for its Replacement of the proposed motion.

This Part IV covers Clauses 33 to 40 and I will now invite the members to come back to Clause 33.

[Page 109]

The Chair has received notice of a proposed amendment to Clause 33 which would have the same effect as the amendments proposed for Clauses 25 and 26, as well as 44.

[English]

The proposed amendment was to be moved by the Official Opposition in the same context as the one previously moved in relation with Clause 25 and Clause 26 and the previous Clause 44 which was seeking the deletion of Clause 33 and the following.

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

The Joint Chairman (Mr. Joyal): So I would like to invite honourable members who sustain such an amendment to answer no in the usual fashion when the vote would be called on Clause 33.

So far as the Chair has not received any amendment if there is no intervention on that clause the Chair will be in a position to call the vote. I see that the honourable Jake Epp and Mr. Nystrom would like to speak on that. Honourable Jake Epp.

Mr. Epp: Mr. Chairman, with the indulgence of the Committee members I intend to give the over-all position of the Conservative party right through Clause 33 to Clause 40 inclusive.

As members will recognize very quickly we took our position at the time I moved our amendment, namely that we will be voting to delete every clause from Clause 33 to Clause 40 inclusive, the reason being, Mr. Chairman, that now that we have passed Clause 41 and Clause 42 we are in opposition to both clauses; and that we feel that the interim amending procedures which are related to clauses that we have taken a position against that we can not support any of the clauses nor the methods to be used whereby they can be verified.

I want to indicate to you as well, Mr. Chairman, that when we get to what is known in our terms as the British bill, which is as members will recognize, the front part of the proposed resolution that we have an amendment in the British bill which will do two things: one, which will allow the use of an amending formula as well as the finalization of that amending formula, so both in terms of procedure as well as approval we are providing a way through the British bill rather than through Clause 33 to Clause 40 in terms of the amending formula.

So, Mr. Chairman, what I am saying to you and to all honourable members, we are not going to be part of the colonial action that the Liberals now want to embark on, namely that is now entrenching the colonial acts in Clause 33 to Clause 40.

Having stated that, Mr. Chairman, I do not believe that there will be any great interventions at all.

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

Mr. Nystrom: A short preamble and then a question to the Minister. We are of the opinion basically that Part IV will Probably never be used and I do not see it as that important a Part of our debate and I will not be saying that much on the Clause.

[Page 110]

I do have some concerns about some of the clauses and I will comment on them one by one.

I do have one question to the Minister, it is not any earth-shattering thing, but I have had a few representations made to me by a number of people about what they think is a bit of inconsistency in this, Mr. Chrétien.

We will take Clause 33, for example, but it is also evident in Clauses 34, Clause 35 and so on. I will just read it:

Until Part V comes into force an amendment to the constitution of Canada may be made by proclamation issued by…

This is where it is a bit of a puzzle.

…by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and the House of Commons and by the legislative assembly or government of each province.

I just wanted to ask you a question asked me by a few people. When it comes to the federal powers, we have to have a resolution of the House of Commons and the Senate. Therefore it has to be debated in the House. I wonder why when it comes to provinces it can be done either by the government or by the legislative assembly. People have asked me, I remember a case in B.C. for example, where a fellow asked me does this mean that the government of British Columbia, for example, could pass a resolution without consulting the legislature. There was some concern that governments could do things in effect unilaterally without going through a legislature for approval, and I am just wondering what the response to that is.

Mr. Chrétien: I will ask Mr. Strayer to deal with that.

Mr. B. L. Strayer (Q.C., Assistant Deputy Minister, Public Law, Department of Justice): The intent of Clause 33 was simply to follow what had been the practice in situations where provinces had consented to amendments and just to mention three of them, perhaps I could mention four, in the case of the 1940 amendment on unemployment insurance apparently no government referred it to its legislature. The consent was given by government in all cases.

In 1951, in the case of the old age pensions amendment, three governments put the matters to their legislatures, Quebec, Saskatchewan and Manitoba, but in the other provinces the consent was given simply by the provincial governments.

In the case of 1960, the amendment involving retirement age of judges, only Quebec in that case put the matter before its legislature.

In 1964, with respect to old age pensions again, it was only in Quebec that the matter was put to the legislature. In the other cases the executive government gave the consent, so it was to reflect that kind of practice in the past that the clause was worded the way it is and that is also reflected, as you mentioned, in subsequent clauses.

Mr. Nystrom: I fully understand and appreciate the answer. It is just a matter of conforming with tradition in the past. I assume, Mr. Chrétien, from your official, Mr. Strayer, that

[Page 111]

the same thing is true in the other articles, that you are just reflecting past practices all the way throughout.

Mr. Chrétien: Yes.

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

Senator Austin: This could probably be answered by one of the officials, Mr. Chairman.

In Clause 34 you use the word “may” and I am curious why that is not “shall” in as much as we will have had resolutions of the Senate and House of Commons.

Is the use of the word may intended to leave a substantive right to the Governor-in-Council not to act on those resolutions.

Mr. Strayer: I believe the answer, Senator, is simply that that is a typical way of empowering somebody to do something, and it is a typical way of enabling an act to be done; and in the circumstances “shall” would not be appropriate. It is simply the same style as saying that the legislature may make laws about something.

Senator Austin: We read it to mean “shall”, in other words.

Mr. Strayer: Yes.

Senator Austin: It has the meaning of “shall” in that sense.

Mr. Strayer: It is simply phraseology for empowering something to be done.

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

Mr. Hawkes: Just a couple of questions of the Minister, given this clause, starting with Clause 33, what consultation would be required either from the Yukon, Northwest Territories or the aboriginal people about any amendment that occurs in the next couple of years. Would they have a voice?

Mr. Chrétien: This concerns the legislature and the Parliament of Canada. It is related to the amending formula of the Canadian constitution and it is not to deal with—it is providing the unanimity rule of the province, for a period of two years.

Mr. Hawkes: As I read it Clause 16 to Clause 20 and their application to the Province of New Brunswick could be rescinded by joint action or could Section 133 of the British North America Act be rescinded by an action of the federal Parliament plus the concerned province. Is that inherent in these sections as well?

Mr. Chrétien: For the charter it is going to be Clause 36 that will apply, that requires the unanimity rule. And Clause 16 to Clause 20 is part of the charter.

Mr. Hawkes: The BNA Act, Section 133 is not part of the charter.

Mr. Chrétien: Clause 34 will apply for Section 133.

[Page 112]

Mr. Hawkes: What is the implication of that? In other words, is the province acting in concert with the federal government to sort of eliminate the application of Section 133.

Mr. Chrétien: In the case of Section 133 as it is a matter that is affecting only one province that will require the consent of that province and of the federal parliament: and in the case of the Charter of Rights it will be the rule of unanimity because it is covered by Article 33.

Mr. Hawkes: So Section 133 in this two year period of time will be at risk relative to what it is today once your new constitution goes into effect.

Mr. Chrétien: I do not see great risk in the light of the discussion we are having. Any clause in the constitution that affects one province only can always be amended with the consent of that province and the Parliament of Canada.

Mr. Hawkes: That is the legal situation today, or will that be the legal situation once…

Mr. Chrétien: There is no amending formula today. There is one, yes, we are asking the British Parliament to accept the recommendation of the federal government. That is the way our constitution—there is no convention—legally, I do not want to take—perhaps I could read some of the section of the judgment that came today on the question of convention, it said very clearly, they were unanimous on that, there is no convention.

Mr. Epp: That is right.

Mr. Chrétien: So therefore what we are doing is legal, we are going to London. What I said in amending the constitution, we always have to go to London. We went how many times since 1867—17 times we went to London and it is going to be the last one this time.

Mr. Hawkes: Mr. Minister, could there be an add-on, a private deal between the federal Parliament and a particular province to, for instance, entrench something related to potash if one wanted to make a deal with a particular provincial government, does this clause in fact put in the constitution of Canada the power for the federal government with that one province to make a private deal and entrench it.

Mr. Chrétien: When there is provision that applies only to one province you could use Clause 3 if it were to apply to one province and in all consideration when it is related constitutionally to one province only, the constitution can be amended with the approval of that province and the national Parliament. So it would not be a private deal. The Parliament of Canada would have to accept it and the provincial legislature would have to accept it, or if it is a tradition in that province it might be, as we explained earlier, an approval of the government.

Mr. Hawkes: What you are seeking to do in the context of yesterday’s discussion is to entrench in the constitution of Canada the power to create a checkerboard which is quite unlike any checkerboard we have previously experienced.

Mr. Chrétien: There are certain rights that apply to all Canada, but there are certain situations that do not apply across Canada. We discussed that in the case of Newfound-

[Page 113]

land for example in terms of the denominational schools. The same thing applied to Quebec. They have a specific clause in relation to the denominational schools. So these specific recommendations for specific provinces can be amended by the province and the national Parliament.

Mr. Hawkes: What you are saying to us and the long range implication of this is that during this period you could reach a private deal with the Province of Ontario or the Province of Quebec and then when Clause 41 does come into force it is unamendable because of the veto.

Mr. Chrétien: I do know. I do not follow your rationale there. I just explained the legal situation, that when something is applied to one province it can be amended; but when it is specific to one province, it is a specific special clause that applied to one province like the denominational schools can be amended only bilaterally by the national Parliament and the province.

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

Clause 33 agreed to on division.

The Joint Chairman (Mr. Joyal): I would like to invite a member to move on Clause 34. On that very Clause 34 there are no further amendments. The only amendment in fact that could be linked with Clause 34 is a proposed new clause after Clause 34, so the Chair would like to first call the vote on Clause 34 before calling those amendments. So if there is no question in relation to Clause 34, the Chair will call a vote on Clause 34.

Clause 34 agreed to on division.

The Joint Chairman (Mr. Joyal): I would like then to invite honourable members to take the next motion, a motion identified as G-34.1, new clause after Clause 34, page 10.

[French]

This is a proposed amendment bearing number G-34.1, new clause after Clause 34, page 10. This amendment is being proposed by the government.

[English]

If some of the honourable members do not have a copy of the proposed amendment we will make sure that our clerk or clerks extend to them copies.

I would like to invite an honourable member to take the next motion which is to add a second new clause after Clause 34, and that second new clause is identified as G-34.2, second new clause after Clause 34, page 10.

The Chair will call first the first motions, the one that had the first new clause after Clause 34. It is identified as G-34.1, new clause after Clause 34.

Mr. Chrétien: Before we move I can give a little explanation to the Committee.

It is the same clause that we agreed this afternoon with Mr. Crombie but has to apply during the interim period of two years. So in order to make sure that the opting in provision be there if someone wants to take it in the next two years, let me call it the Crombie amendment or the Chrétien-Crombie amendment, whatever it is, it is for the period of two years, the same as it was after, permanently.

[Page 114]

The Joint Chairman (Mr. Joyal): Before I invite honourable members to address themselves to the new clause I think that it is proper to have it moved in the usual way so I would like to invite Mr. Irwin to move the proposed motion.

Mr. Irwin.

Mr. Irwin: I wish to move, Mr. Chairman, that the proposed constitution act, 1980 be amended by:

(a) adding immediately after line 12 on page 10 the following:

35 (1) Notwithstanding Clause 36 an amendment to the constitution of Canada (a) adding a province as a province named in Subclause 16(2), 17(2), 18(2), 19(2) or 20(2), or (b) otherwise providing for any or all of the rights guaranteed or obligations imposed by any of those subsections to have application in a province to the extent and under the conditions stated in the amendment, 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 the province to which the amendment applies.

(2) The procedure for amendment described in Subclause I may be initiated only by the legislative assembly of the province to which the amendment relates.

and (b) renumbering the subsequent clauses accordingly

[French]

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

Mr. Corbin: Mr. Chairman, I move

that the proposed constitution Act, 1980 be amended by:

(a) adding immediately after line 12 on page 10 the following:

35(1) Notwithstanding Section 36, an amendment to the Constitution of Canada

(a) adding a province as a province named in Subclause 16(2), 17(2), 18(2), 19(2) or 20(2), or

(b) Otherwise providing for any or all of the rights guaranteed or obligations imposed by any of those subsections to have application in a province to the extent and under the conditions stated in the amendment, 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 the provinces to which the amendment applies.

(2) The procedure for amendment described in Subclause I may be initiated only by the legislative assembly of the province to which the amendment relates.

(b) renumbering the subsequent clauses accordingly.

Thank you.

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

[Page 115]

[English]

Miss Campbell: Mr. Chairman, this is just a point of order on the motion, but it does not follow with the two preceding paragraphs about the government of the province, I think that is the way it came out, or government of each province, and I am just wondering if it was the intention of this motion not to include those words for the uniformity of the package? It seems to me that you should continue the government of the province in that particular motion, too, but it is not there.

Mr. Nystrom: Why is it not?

Miss Campbell: I am not going to debate the matter but I think for the clearness of that section it should be the same terminology.

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

Honourable Jake Epp.

Mr. Epp: In explaining our position, Mr. Chairman, on Clause 34(1), as I mentioned earlier the entire interim amending procedure we are opposed to, what this clause will do does not effect the interim amending procedures but rather put in the same provision on language opting in as we had agreed to earlier and it is on that basis that we will accept the Clause if the Minister insists on this opting in period.

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

I see that honourable members are ready for the question.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would draw the attention of the honourable members to the next new clause that was supposed to be proposed after that one but I understand that it will be withdrawn, and if honourable members want to take the copy of it, I mentioned the number previously, it is G-34.2, second new Clause after Clause 34, and by suggestion of the honourable Minister of Justice it will be withdrawn but I would like to invite the Minister of Justice to give his comments on that clause.

Mr. Chrétien: It will be very short.

It was the provision that we were contemplating in terms of the amendment of native rights that would be entrenched, and we have decided to go through the normal amending formula father than to have a special amending formula, so consequently this had to be dropped.

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

Mr. Epp: Just a question to the Minister. In view of the difficulty that arose when this amendment was first circulated, not tabled but circulated, I would like to ask the Minister whether he now has the assurance from the leadership of the National Indian Brotherhood, the Native Council of Canada and the Inuit Tapirisat of Canada that the procedure to amend, or the possibility of amending those clauses affecting aboriginal rights will now be done through the amending formula which will be agreed to at a later date when the entire package obviously will be voted on, whether he has the full assurance from the leadership of those three groups that that is acceptable to them?

[Page 116]

Mr. Chrétien: Yes. When I proposed that article to them they were very reluctant to accept it so I said if I do not present that and have dropped it, you would be subjected to the agreed amending formula that will be coming into force later on and the unanimity rule before that and they knew that and they preferred that route than to have a specific amending formula for them.

And I talked to Mr. Riley of the NIB and I talked with the representative of the Inuit Tapirisat and the third group, the Métis and nonstatus Indians were represented by Mr. Daniels. So I have talked to the three personally.

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

So the intended motion is then withdrawn.

I would like to invite honourable members to move on Clause 35 of the proposed resolution. On Clause 35 the Chair has not been informed that there is any amendment or motion in relation to that Clause 35 so if there is no intervention or question the Chair will call a vote on Clause 35.

Clause 35 agreed to on division.

On Clause 36—Limitations on use of interim amending procedure

The Joint Chairman (Mr. Joyal): I would like then to invite honourable members to move on Clause 36. On Clause 36 the Chair has been informed of one amendment. It is the amendment numbered G-35, Clause 36, page 10.

[French]

We are on amendment G-35, Clause 36, page 10.

[English]

It is an amendment moved by the government party and I would like to invite Mr. Irwin to propose or move the amendment in the usual way.

Mr. Irwin: Mr. Chairman, I wish to move that Clause 36 of the proposed constitution act, 1980 be amended by striking out lines 30 to 32 on page 10 and substituting the following:

“Section”.

[French]

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

Mr. Corbin: Mr. Chairman, I move

that Clause 36 of the proposed Constitution Act, 1980 be amended by striking out lines 30 to 32 on page 10 and substitute the following

“section”

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

[English]

I understand that the honourable Minister of Justice would like to give comments about the proposed amendment.

Mr. Chrétien: I will ask Mr. Strayer to explain the technical amendment.

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

Mr. Strayer: Mr. Chairman, the purpose of this is simply to strike out the provision whereby it would have been possible to use Clause 33 and Clause 34 to make a general consolidation and revision of the constitution.

There would have been a possible use of Clause 33 and Clause 34, particular Clause 33, to make a revision which

[Page 117]

might possibly effect changes for which there is a special amending formula such as Clause 34 or Clause 43.

In other words, it is uncertain what the words “consolidation and revision” might embrace but they might embrace small amendments, how so ever unintended, and this would have permitted us to use Clause 33 or the process of Clause 33 to be used in amending things such as, for example, section 93, it only applies to one or two provinces. So the net effect of taking those words out is simply to ensure if there is a general consolidation done, it will be carried out by the normal amending procedures and not simply by Clause 33.

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

Mr. Hawkes.

Mr. Hawkes: Can I ask the Minister, or through him his officials, why that Clause 36 does not begin with the words “until Part V comes into force”.

Mr. Strayer: Well, the whole part will be repealled when Part V comes into force and therefore, after that time it will have no effect, it will disappear. This would be brought about by Clause 51 of the constitution act which says, in effect, that when part 5 comes into force, part 4 will be repealled.

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

Amendment agreed to.

Clause 36 as amended agreed to on division.

The Joint Chairman (Mr. Joyal): I would like then to invite honourable members to move on Clause 37. On that very Clause 37 the Chair has not been informed that there are any amendments and unless there is any intervention or questions the Chair will call the vote on Clause 37.

Clause 37 agreed to on division.

On Clause 38—Provincial alternative procedure

The Joint Chairman (Mr. Joyal): I would like then to invite honourable members to move on Clause 38. On Clause 38 the Chair has been informed of one amendment, it is an amendment that you will find in your package numbered G-36, Clause 38, page 10 and 11.

[French]

This amendment G-36, Clause 38, pages 10 and 11. This amendment has been moved by the government party

[English]

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

Mr. Irwin: Mr. Chairman, I am pleased to move that Clause 38 of the proposed constitution act, 1980 be amended by:

(a) striking out lines 45 and 46 on page 10 and substituting the following:

“38. (1) The legislative assemblies of seven or more provinces that” ;and

b) striking out lines 14 to 33 on page 11 and substituting the following:

“(3) Where copies of an alternative have been deposited as provided by subclause (2) and, on the day that is two years after this Act, except part V, comes into force, at least seven copies remain deposited by prov-

[Page 118]

inces that have, according to the then latest general census, combined populations of at least eighty per cent of the population of all the provinces, the government of Canada shall cause a referendum to be held within two years after that day to determine whether

(a) paragraph 41(l)(b) or any alternative thereto approved by Parliament and deposited with the Chief Electoral Officer at least ninety days prior to the day on which the referendum is held, or

(b) the alternative proposed by the provinces,

shall be adopted.”

[French]

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

Mr. Corbin: I move that

Clause 38 of the proposed Constitution Act, 1980 be amended by

(a) striking out lines 45 and 46 on page 10 and substituting the following:

“38. (1) The legislative assemblies of seven or more provinces that”

(b) striking out lines 14 to 33 on page 11 and substituting the following:

“(3) where copies of an alternative have been deposited as provided by subsection (2) and on the day that is two years after this Act, except Part V, comes into force, at least seven copies remain deposited by provinces that have, according the then latest census combined populations, of at least 80 per cent of the population of all of the provinces, the Government of Canada shall cause a referendum to be held within two years after that day to determine whether

(a) paragraph 41 1 (b) or any alternative thereto approved by Parliament and deposited with the Chief Electoral Officer at least 90 days prior to the day on which the referendum is held, or

(b) the alternative proposed by the provinces, shall be adopted.”

Thank you.

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

The Honourable Minister of Justice.

[English]

Mr. Chrétien: Mr. Chairman, there are three amendments in that proposition. Number 1 is to go from 8 to 7, it is adding some flexibility. It is going to be easier for the provinces to have a consensus. It is a point that has been made by some people that hate that, there is something bad about it. I guess it was you, were you not one of them? So that is the result of the Committee.

The second is just a technical amendment.

An hon. Member: It is a set up.

[Page 119]

Mr. Chrétien: The second is a very fine amendment, it is just to use exactly the same word in paragraph number I we talk about, in one place we use “file” and in the other one we use “deposited”, so we decided to use “deposited” all along.

And the third one is that this is another criticism that is made in front of this Committee that the alternative of the federal Parliament, the government in the case of a referendum, if we were not to go with the so-called Victoria formula, it was supposed to be deposited only by the government, and this is a requirement that it has to be approved first by the House of Commons and the Senate. It was to meet some of the preoccupation of some of the members of the Committee.

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

Honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman.

This amendment forces me to put some comments on record, and just to show the unfairness once again of the Ministers total plot on the amending procedure, whether one speaks of Clause 41 or Clause 42 or Clause 43 or this clause.

Now, the Minister comes here and says: I have listened. I have listened and I have now in the goodness and graciousness which I possess so greatly have heard and listened and I am now going to reduce the need for the provinces to get their own amending formula on the ballot from 8 all the way down to 7. But, just a minute, I will retain the 80 per cent population factor. That is what he is saying. And he is coming here clothed in these great garments of white saying that he is being flexible; he is not flexible at all. He has not changed a thing.

Mr. Chrétien: Eight to seven.

Mr. Epp: Oh yes, and I am glad that you finally started to substract, because what he is saying, for example, is that the provinces of Alberta, Saskatchewan, Manitoba can all agree in his formula but they do not constitute 20 per cent. That will be all right.

“Do not worry, Western Canadians; we have not listened to you before, so we will not start now!”

That is what you are saying to us.

But, the other way you could have nine provinces agreeing to another formula, but one province having more than 20 per cent of the population and you keep it off the balance.

Where is your sense of equity? Where is your sense of fairness?

Mr. Chairman, this is a point I made yesterday; that is, when you start from the basis of unfairness, no matter how you rig it, jig it, or change it, it is wrong!

It is important that Canadians understand this, that not only through the amending formula in place but also the manner in which these poor people known as provinces, the poor institutions of the federal system would be able to get something on the ballot, just to vote.

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And you are saying to me, Mr. Minister…

Mr. Chrétien: But you had exactly the same thing in your own proposition!

Mr. Epp: Let me finish. I am coming to that.

Mr. Chrétien: At one time you were proposing eight provinces with 80 per cent of the population. It was one of the big discoveries you had yesterday!

Mr. Epp: I am glad you said that, because there is one big difference, Mr. Minister; one big difference.

Mr. Chrétien: Excuse me, but is it meaningless?

Mr. Epp: Just a minute. Because I am getting a made-in-England constitution—and you are! Because we are saying very clearly take it back to the provinces. That is the difference. There is a big difference there! You do not want to accept that fact, because you are simply saying, “I am going to take this to Britain and I am not going to ask the provinces.”

But we have said, “Go back to the provinces”. We wanted consensus. And you know that!

But what I am saying to you is that what you are doing is just in another way telling us in western Canada very clearly that while we might speak, while we might complain, while we might object, we will not be heard.

You told me that yesterday; you are telling me that today again!

Mr. Chrétien: You know, I find it quite amusing that there were exactly the same words in their own proposition.

Now as regards this bit about London, we have been here since October, I guess, and we are going to the House of Commons from here.

I am not going to London, but to the House of Commons and will vote there—and to the Senate; eventually, we will go to London.

It will be voted in the Senate. There can be no doubt about that.

So, after that we will ask England to do what they are obliged to do legally, just like the Governor General in Canada; you know, in theory, the Governor General of Canada can refuse any bill that goes there; he could—legally! But he never—well, you know—well I know he would not do that.

So as regards England, I have no doubt about how England will act, just like I have no doubt about the fact that the Governor General will not refuse a bill.

Mr. Epp: Mr. Chairman, I want to say to the Minister, had he attended some of the meetings his colleagues attended regarding the English viewpoint, he might not be making some of the statements he is making.

Mr. Chrétien: Could you repeat what you have said. I did not quite hear what you have said, but you sound serious.

Mr. Epp: I said that if you had attended some of the meetings your cabinet colleagues have attended regarding the

[Page 121]

actions, then I suggest to you might not have made some of the statements you have just finished making.

Mr. Chrétien: Today there was a statement made by the Prime Minister of England, the Right Honourable Mrs. Thatcher. It was clear, short and to the point. Good for her.

Mr. Epp: Mr. Minister, what she said, you will find out, was exactly what we were saying. As to law and precedent you do not have the precedent.

Mr. Chrétien: I am glad you talked about precedent. I hope you will have the time to read the judgment of the Manitoba court. They were unanimous on that: there is no precedent. So we can go there.

The Joint Chairman (Mr. Joyal): With due respect to honourable members, the Chair would like to draw attention to the fact that there will be ample opportunity later on in the debate, maybe not tonight but later on this week, to address themselves to this very question; because there are other parts of the proposed resolution in respect of which the Chair could receive questions and exchange views of this kind.

But I would like to remind honourables to remain on the very core of the proposed amendment.

Mr. Hawkes.

Mr. Hawkes: May I ask the Minister a couple of questions?

Your proposed clause deals with paragraph 41(1)(e). Why, Mr. Minister, do you choose not to allow the provinces to amend Clause 42, the referendum clause, or at least propose that the Canadian people be given the choice of amending your referendum provision?

Mr. Chrétien: We decided that there will be a referendum. We think we have presented a very fair procedure for our referendum.

There will be a lot of time for everyone to debate it and to make their views known and for public to know; and eventually, the people of Canada, if there is no agreement, will have to choose between two formulae; one proposed by the provinces, if they agree; and one proposed by the federal government, but approved before by the House of Commons and the Senate.

After that, the people of Canada will have to vote.

Now I do not know how I can give authority to the people of Canada to pass law. It is the Parliament of Canada that passes law for all Canadians. That is why we have been elected.

Mr. Hawkes: Mr. Minister, you may have misread my question. You are putting in a provision in the constitution act 1980 that would provide seven provinces with 80 per cent population to put a question to the Canadian people; you are guaranteeing the right of the Parliament of Canada to put an alternate to that.

So you are stating to us the principle, that the people of Canada through a referendum should be able to decide the amending formula they want, but only within the confines of your Clause 41.

[Page 122]

Why, Mr. Minister, are you not prepared to trust the Canadian people to decide whether or not they want a referendum in the future?

Why would you not let us amend Clause 42, through this process, just as much as Clause 41 ?

Mr. Chrétien: I do not understand your line of argument. I say we are providing a mechanism called a referendum, whereby if there is no agreement on one formula, and the provinces agree among themselves on a new amending formula as against what we have proposed, and if it is not acceptable to us, we will put our own proposition either Victoria or a new one which has to be approved by parliament and they will have to choose between the one proposed by the provinces or the one proposed by the federal government. They will choose.

Now you ask me about another mechanism. You cannot have one thousand amending formulae on the table. It would be difficult enough to have a referendum on the question: “Are you for Vancouver or for Victoria?” You will not know which are to take between the two.

So I do not think you can have more than the two. So I hope and I believe that there is some chance in the next two years if the dust has settled we might find a formula which would be acceptable to everybody. That would be perfect if we could achieve it. We are allowing two years in which to do that, while your own proposition would impose a kind of mechanism right away. But we are giving two years to the provinces to agree among themselves.

Mr. Hawkes: Mr. Chairman, I do not know if I am getting through to the Minister. But I think it is critically important. In this procedure and on this page he is telling the Canadian people that through their provincial legislatures, they can propose an alternate amending formula. But he says Clause 41(1)(b), that the proposal must deal with that paragraph alone. But I do not think he has answered my question as to why he would not allow that proposed alternate to eliminate the whole concept of a referendum for the future.

What is there in the government’s position that makes them afraid of submitting to the Canadian people the proposition that there should no longer be a referendum for amending the constitution of Canada?

I think it is a critical point of government policy.

Mr. Chrétien: I understand that you would like us to have a referendum on the area of having a referendum break the deadlock. That is the way I understand that.

Mr. Hawkes: Why would you not allow the possibility? Your government members are putting in this clause and you are ruling out that possibility and I want to know why.

[Page 123]

Mr. Chrétien: To agree to that would be to and further complexities to an already complex project—a referendum on the area of having a referendum for a deadlock mechanism?

I think we take our responsibilities. I do not know if there will be a referendum, but I do not think it is very appealing to have a referendum to decide if we are going to have a referendum to eventually break a deadlock. I do not see the point. It might be on the side of the angels, but it would cause a bit of complications.

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

Miss Campbell.

Miss Campbell: Maybe this might help clear up Mr. Hawke’s point. It seems to me what he was trying to say is that the interim procedure involving a referendum on the amending formula which at this stage of the game is in Clause 41 on the government side, unless it is agreed to or the provinces put another. But once an amending formula is found, then I would assume that under that amending formula if you wanted to change some of the provisions in the referendum on Clause 42, you could under a new amending formula if you wanted to change some of the provisions in the referendum on Clause 42, you could under a new amending formula by using Clause 47.

Mr. Chrétien: You can eventually.

Mr. Hawkes: What I am trying to say to the Minister is that there is some willingness to live with Victoria. There is not a great deal of enthusiams and some provinces are against it. There is more willingness on the part of the provinces to live with Vancouver.

But one universal aspect of the testimony we have received is that the provinces in this country say that, using referenda to amend the constitution of Canada is inappropriate, and if there is some 80 per cent of the population or seven provinces agreeing on it, it would be to eliminate Clause 42.

But here you have laid down before us a clause which says they cannot propose the elimination of Clause 42, but they can simply change Clause 41; but they cannot deal with the part of it which is most important to them.

Mr. Chrétien: The way I have understood it is that he wants a referendum on the area of having referenda in Canada.

We have decided as a government we need a deadlock breaking mechanism.

We hope it would not be used after we have an amending formula. There is some opinion which suggests that it would be used very rarely. But looking ahead, 50 or 100 years there might be a situation where there might be a referendum.

But if we end up in two years with a good amending formula the need for a referendum as a deadlock breaking mechanism will not be used very often, because a referendum is a very touchy exercise, costly and politically dangerous; because you can have because you can have a referendum, but if the government proposes a referendum and then loses it, you are in a terrible mess.

[Page 124]

We have a government not far from here which has experienced that.

When you call a referendum it is much better to make sure that you are winning. But I am not at all too preoccupied about having that power. When you look at the situation in Australia they have had this concept of a referendum by the national government in place since they have had a constitution, and they have had 32 amendments put in a referendum and only five were accepted by the population, and the five were very minor in nature.

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

Mr. Nystrom, followed by the honourable Jake Epp.

Mr. Nystrom: I think there is still some confusion. I just want to ask the Minister this.

We have an amending formula, which is the Victoria formula. Part of your amending formula is the referendum procedure. Is that correct?

Mr. Chrétien: Part of the amending formula.

Mr. Nystrom: An aspect of your amending formula is a referendum procedure. Is that right?

Mr. Chrétien: Yes, for the interim stage.

Mr. Nystrom: Permanently.

Mr. Chrétien: We have an amending formula. There is a possibility of a referendum, yes.

Mr. Nystrom: So part of your amending formula, indeed, is a referendum proviso?

Mr. Chrétien: Yes.

Mr. Nystrom: The relevant question is: if part IV is ever used, would you choose between the federal option on the one side and the provincial option on the other side? You have already confirmed that part of the federal amending formula is the referendum. Why is it, then, when there is a vote, if the provincial option wins we are still stuck with federal referendum procedure?

Mr. Chrétien: But the vote will not be on the deadlock breaking mechanism. The vote will be on the amending formula.

Mr. Nystrom: That is my point, Mr. Minister. You have just said that the amending formula that you are proposing includes the referendum. You say it is the Victoria Charter plus the referendum. You have just said that is the amending formula.

Mr. Chrétien: Sure.

Mr. Nystrom: So, why is not the vote on that vis-à-vis the provincial option?

Mr. Chrétien: We put it in the referendum.

Mr. Nystrom: I know you have put it there. But I am asking you why. You have already stated that the amending formula is Clause 41 and Clause 42. Why, if there is a vote is the vote only on Clause 41?

[Page 125]

Mr. Chrétien: You have to make a distinction between the amending formula and the deadlock breaking mechanism. We have an amending formula and we have a deadlock breaking mechanism.

But it is all part of amending the constitution. You have two techniques, the amending formula, and if the amending formula is not working, you have a deadlock breaking mechanism.

Mr. Nystrom: Excuse me, Mr. Chrétien, but a few minutes ago, you did not make that distinction. You said part of the amending formula proposition was the referendum.

Mr. Chrétien: Yes, because there are these two; they go together. We try one and if it is functioning then we have the other one. When we have the referendum it will be on the first mechanism and not on the deadlock breaking mechanism.

But when once you have amended the constitution, you have two possibilities; you have the amending formula; if it is not working then you have a deadlock breaking mechanism.

And whatever is the amending formula you can always forecast a deadlock so you have a deadlock-breaking mechanism; or you might not have one but we want to have a deadlock breaking mechanism.

So the amending formula is one thing and the deadlock breaking mechanism comes after when the amending formula is not effective. You create the deadlock and now you break the deadlock through the referendum.

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

Mr. Epp: Mr. Chairman, I believe I understand the amending formula but I want to make sure that lam 100 per cent correct.

No matter what happens through the interim period or what happens in Clause 38 for the interim period, Clause 42 remains as part of the permanent amending formula. Right?

Mr. Chrétien: I was talking with my advisors.

Mr. Epp: I will go over it again because I feel that there are some members on the Liberal side who do not understand it, and maybe I do not understand it, but I want to learn that.

Clause 38 of the interim amending formula vanishes after a certain period of time. As you call it, it is a deadlock-breaking mechanism that the government has devised.

Clause 42, regardless of the interim period, regardless of the interim clauses, remains as a permanent feature of any amendm8 formula for Canada in the future. Correct?

[Page 126]

Mr. Chrétien: You have the amending formula and you have always the deadlock-breaking mechanism, Clause 42, yes. You have an amending formula and you have a deadlock breaking mechanism so Clause 42 will be there, yes and Clause 42 can be, if there was according to the formula an agreement Clause 42 could be in theory—and Clause 47 could be taken away.

Mr. Epp: Mr. Minister, let us keep it very straightforward. Regardless of what happens in the interim period, let us forget about it, and all the clauses that apply to it, Clause 42, a referendum clause, will remain forever as part of the amending formula of Canada until such a time as it would ever be amended, but it becomes part of the permanent formula, correct?

Mr. Chrétien: I always said that, that there will be amending formula and a deadlock-breaking mechanism that will amend eventually the constitution if the amending formula is not working. I conceded all along that there will be a referendum to break the deadlock.

Mr. Epp: Mr. Minister, I understand the breaking of the deadlock but I want to make it very clear that Canadians understand, what you have in permanent fixture is two amending formulas: one is Clause 41 and for those who do not have the clause in front of them the government’s proposal was Vitoria; ours was Vancouver which was defeated the other night; that is one amending formula that remains.

Second, the referendum is your second amending formula. It remains. Correct?

Mr. Chrétien: You know, it is there but one point I would like to make, there is consensus where you could eliminate the referendum formula by Clause 47. You read Clause 47. It is permanent as long as you do not use Clause 47 to get rid of it.

Mr. Epp: What I am saying to you and I want it very clearly understood by Canadians, Clause 42 as you are proposing it remains a second amending formula in Canada as a permanent feature, as permanent as your Clause 41, let us put it that way, it is as permanent as Clause 41. It could even be more permanent.

Mr. Chrétien: I concede that with the amending formula, permanent one, when the interim period has passed there would be an amending formula and there would be a deadlock breaking mechanism. What do you want me to say, this is the mechanism to amend the constitution, I have to concede it. There is the first stage and the second stage but that feature of a referendum could be taken out through Clause 47, so it is permanent as long as Clause 41 and Clause 47 will keep…

Mr. Epp: All right, now I want to get to the point. I think now we have at least agreed on the basis. Now, let us say for example that the clause that I have been arguing about, the 7-80, let us say that you get a 7-80 asking for Vancouver and

[Page 127]

you put it on the referendum, that is the referendum to decide an amendment, and the Canadian people approve it, okay?

Mr. Chrétien: As the amending formula.

Mr. Epp: As the amending formula. You could then use Clause 42 at a later date and eliminate Vancouver by having another vote.

Mr. Chrétien: There would be another vote.

Mr. Epp: Exactly.

Mr. Chrétien: There might be another vote. You can through Clause 47 amend Clause 41 and Clause 42. Clause 41 and Clause 42 can be amended through Clause 47.

Mr. Epp: Mr. Minister, I realize that. I am just trying to show the boondoggle that this thing creates. It is not flexibility, it is like playing bingo with amendments, and what you have, Mr. Minister, is you have this thing lined up in such a way now that you hope that Victoria and your vaunted deadlock-breaking mechanism will in fact both survive.

What you fail to take into your equation is an amending formula that there might be an agreement which might in fact eliminate half of your proposal.

Mr. Chrétien: You make the proposition that suppose that seven provinces representing 80 per cent of the population decide among themselves for Vancouver and we put either Victoria or something else again alongside in the referendum, and the people choose Vancouver formula. That would be the amending formula. Okay?

Mr. Epp: Agreed.

Mr. Chrétien: And we go on, but we always said that through Clause 47 you can change Clause 41 and Clause 42 so it might be that in twenty years later…

Mr. Epp: Or in six months.

Mr. Chrétien: Yes, of course, in six months, but I do not want to take the responsibility if the people of Canada select an amending formula, and I do not like it, that I have another referendum. After that going into an election, I would be clobbered, so in theory it is possible. Mr. Levesque would have had two more referendums since May, of course he could, and he would have been clobbered again.

In six months, Mr. Chairman, the delay is—there is one year plus another twelve months, it is two years and a half.

The Joint Chairman (Mr. Joyal): I see that honourable members are ready for the question. Honourable Jake Epp.

Mr. Epp: I am still not through. I just feel that this is such a critical area.

Mr. Chrétien: It is not critical at all.

Mr. Epp: Let us take the next case, that the Canadian People decide to delete Clause 41 through a referendum, be it either Vancouver or Victoria. They decide to eliminate it. What amending formula have you got then?

[Page 128]

Mr. Chrétien: You mean if there was no more amending formula?

Mr. Epp: No, that is not what I asked. If through Clause 42 you eliminated Clause 41, either formula, what amending formula would you have?

Mr. Chrétien: Really, you are losing me. If you abolish Clause 41 you might say, who will be the federal government, if you abolish the federal government, of course, you know…

Mr. Epp: Well, one thing, you would not have a federal state.

Mr. Chrétien: I do not know where you are going. You say that, we have provisions there for the provincial government. Suppose through a referendum we were to abolish all the provinces or suppose we abolish the federal government, we will have a problem with those amending formula, of course, because the people are souverain, that is what I said all along.

Mr. Nystrom: Just a quick supplement, if I may.

The Joint Chairman (Mr. Joyal): It will really be the last supplementary. I still remind honourable members that at a previous meeting we had accepted unanimously some rules in discussing the amendments and the subamendments. Of course those rules are under implementation by the Chair, under discretion. I think the Chair has allowed all honourable members a fair part in the debate and I would like to invite Mr. Nystrom but really it is the last supplementary question that will be allowed by the Chair on this point.

Mr. Nystrom.

Mr. Nystrom: My question is really to Mr. Strayer or Mr. Tassé and it is strictly a technical question.

If the provinces put up an option and the provincial option is carried in a referendum, regardless of what that may be, if it means that Clause 38 is eliminated, the Victoria Charter, but we still have the referendum procedure and of course the referendum procedure, Mr. Tassé, in terms of calculating the votes is based on Clause 41, but if people in a national referendum eliminate Clause 41 is the referendum vote still calculated on the basis of Clause 41 which is being eliminated?

Mr. Roger Tassé (Q.C., Deputy Minister, Department of Justice): Mr. Chairman, the part of Clause 41 that would be substituted by any formula that the provinces may have put forward and may have been approved by way of referendum will replace Clause 41(1)(b).

If you read Clause 42 carefully you will see that in effect in Clause 42(1)(b) there is a requirement that the people voting be related to the formula that would have been substituted in Clause 41(b). In other words, if Vancouver were to be the formula that is approved, then you would have to have in those provinces, whose requirement would have been necessary for an amendment to be approved under Clause 41, you would be required that the people in the same number of provinces be required to give their approval.

[Page 129]

In other words under Clause 42(1 )(b) you would replace the vote of the people to the vote or the conference of the provincial authorities.

Mr. Nystrom: In other words hypothetically then if the Vancouver consensus were approved, which is two thirds of the provinces representing at least 50 per cent of the people, you would then have to have the referendum approved in two thirds of the provinces representing 50 per cent of the people.

Mr. Tassé: That is correct, yes.

Mr. Nystrom: Then what happens to the opting out parts of that? Do provinces then opt out if they do not agree that if affects provincial jurisdiction?

Miss Campbell: They would be able to, at that point.

Mr. Nystrom: I am not trying to be difficult, I am just asking because part of that formula has opting out for things that touch anything under provincial jurisdiction. If indeed the referendum touched something under provincial jurisdiction would those provinces where you did not get it approved then have the right to opt out.

Mr. Tassé: I would think that the same flexibility would be allowed. It would depend on how Clause 41 would be drafted and spelled out these requirements.

Mr. Chrétien: We do not know exactly what Clause 41 will be. If we were to have Vancouver, Vancouver, because the Vancouver formula of Mr. Epp is not the Vancouver formula of Mr. Lyon; it is not the Vancouver formula of Mr. Lougheed and so on; because in the Vancouver formula that I had all summer it was all sort of discussions that were not agreed.

I pointed out in the Vancouver formula of Mr. Epp there were clauses that did not exist in the Vancouver formula of last summer and some that were in last summer were no longer there; so we have to see what it is. That is why we do not want that formula.

Senator Roblin: The Minister must not say things like that because he knows perfectly well that under Clause 38 the provinces have to agree on what the Vancouver formula is going to be, in accordance with seven provinces and eighty per Cent of the population; so why do you drag in this red herring?

Mr. Chrétien: It is not a red herring.

Senator Roblin: It certainly is.

Mr. Chrétien: it is a question about the so-called Vancouver formula and I said they have not agreed and the Vancouver formula that you have is not the one that the provinces are Proposing. So which one do you want me to speculate on, the °ne that you are proposing or the one that some provinces were Proposing this summer, I do not know.

Mr. Nystrom: Just with respect, Mr. Chrétien, I was not advocating that. I was saying supposing the Vancouver consen-

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sus was the formula adopted by the people, I just used that as an example, so do not…

Mr. Chrétien: But which one of the Vancouver consensuses—there were so many of them.

Mr. Nystrom: I was just asking your official that if indeed that was the choice of the people that we have the same opting out provisions with the referendum amendment as well, it just seems very fuzzy in everybody’s mind.

The Joint Chairman (Mr. Joyal): I would like to draw the attention of the honourable members that in accordance with previous agreement we have passed over our sitting hour. Of course I am in the hands of the honourable members of this Committee, but I want to draw to them that fact because that is the responsibility of the Chair.

Honourable Senator Austin.

Senator Austin: On the point you raised, Mr. Chairman, I would like to suggest that we are hot and heavily in the middle of this discussion and we should stay here until we have dealt with Clause 38, Clause 39 and Clause 40; or if we come to 11 o’clock, let us adjourn no matter where we are.

Senator Roblin: I would not be agreeable to that, Mr. Chairman. We have plenty of time to do our work properly without going past the 10:30 deadline and that is what we have agreed to do. I think we should just adhere to that. I myself have, now that my curiosity has been aroused by the Minister’s speculations on the Vancouver formula, I have a few questions to ask him about that and I prefer to do it tomorrow.

The Joint Chairman (Mr. Joyal): So this meeting is adjourned until 3:30 tomorrow afternoon.

[French]

The meeting is adjourned until 3:30 tomorrow afternoon.

WITNESSES

From the Department of Justice:

Mr. Roger Tassé, Deputy Minister;
Dr. B.L. Strayer, Assistant Deputy Minister, Public Law.

Other Issues:

Index	1	2	3	4	5	6	7	8	9
10	11	12	13	14	15	16	17	18	19
20	21	22	23	24	25	26	27	28	29
30	31	32	33	34	35	36	37	38	39
40	41	42	43	44	45	46	47	48	49
50	51	52	53	54	55	56	57

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 52 (3 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 52 (3 February 1981)

Constitution of Canada

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