Document Information

Date: 1981-02-06
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 55 (6 February 1981).
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MINUTES OF PROCEEDINGS

FRIDAY, FEBRUARY 6, 1981
(104)

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The Special Joint Committee on the Constitution of Canada met this day at 9:46 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, Macquarrie, Patten, Rousseau, Steuart and Tremblay.

Representing the House of Commons: Messrs. Beatty, Bockstael, Corbin, Dionne (Northumberland-Miramichi), Epp, Hawkes, Irwin, Joyal, King, Lapierre, Mackasey, McRae, Munro (Esquimalt-Saanich), Nystrom and Robinson (Burnaby).

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

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

Witnesses: Franz 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 Senator Tremblay,—That Clause 1, as amended, of the proposed Canada Act be amended by

(a) striking out lines 23 and 24 on page 2 and substituting the following:
“and, subject to sections 2 to 4 of this Act, shall come into force as provided in that Act.

2. A proclamation under section 57 of the Constitution Act, 1981 bringing Parts V and VI of that Act into force in Canada, with or without amendments, may be issued

(a) at any time after this Act comes into force, if so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province;

(b) at any time after the expiration of one hundred and twenty days after this Act comes into force, if so authorized at any time after this Act comes into force by

(i) resolutions of the Senate and House of Commons, and
(ii) resolutions of the legislative assemblies of eight or more provinces that have in the aggregate, according to the then latest general census, combined popu-

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lations of at least eighty per cent of the population of all of the provinces;

(c) at any time after the expiration of two hundred and forty days after this Act comes into force, if so authorized at any time after this Act comes into force by

(i) resolutions of the Senate and House of Commons, and
(ii) resolutions of the legislative assemblies of at least two thirds of the provinces that have in the aggregate, according to the then latest general census, a population of at least fifty per cent of the population of all of the provinces; and

(d) subject to section 3, at any time after the expiration of one year after this Act comes into force.

3. A proclamation under section 57 of the Constitution Act, 1981 and paragraph 2(d) of this Act bringing Parts V and VI of that Act into force in Canada shall

(a) amend section 41 of that Act to read as follows:

“41. An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province.”; and

(b) contain no other amendments to the Constitution of Canada.

4. A proclamation under section 57 of the Constitution Act, 1981 bringing any provisions of that Act other than Parts V and VI into force in Canada, with or without amendments, may be issued at any time

(a) after Parts V and VI of that Act have come into force in Canada; and

(b) after the provisions to be brought into force in accordance with this section have been authorized pursuant to the appropriate procedure prescribed in Part V of that Act for amending those provisions”; and

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

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Clause 1, as amended, of the proposed Canada Act and Clause 1, as amended, of Schedule A carried.

On Clause 2 of the proposed Canada Act and of Schedule A thereto

On motion of Mr. Corbin, it was agreed,—That Clause 2 of the proposed Canada Act be amended by

(a) striking out line 27 on page 2 and substituting the following:
“1981 comes into force shall extend to”; and

(b) striking out lines 24 and 25 of Schedule A thereto on page 2 and substituting the following:
“Loi canslitutionnelle de 1981 ne font pas partie du droit du Canada.”

Clause 2, as amended, of the proposed Canada Act and Clause 2, as amended, of Schedule A, carried.

Clauses 3 and 4 of the proposed Canada Act and Clauses 3 and 4 of Schedule A, carried.

The Preamble of the proposed Canada Act and the Preamble of Schedule A, carried.

On the Title of the proposed Canada Act and of Schedule A thereto

Mr. Irwin moved,—That the long title of the proposed Canada Act be amended by

(a) striking out lines 1 and 2 on page 2 and substituting the following:
“An Act to give effect to a request by the Senate and House of Commons of Canada”; and

(b) striking out line 1 of Schedule A thereto on page 2 and substituting the following:
“Loi donnant suite a une demande du Sénat et de la Chambre des communes du Canada”

After debate, by unanimous consent, the amendment was withdrawn.

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The Title of the proposed Canada Act and the Title of Schedule A, carried.

The proposed Canada Act, as amended, Schedule A, as amended, and Schedule B, as amended, carried.

At 11:00 o’clock a.m., the Committee adjourned to the call of the Chair.

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EVIDENCE

(Recorded by Electronic Apparatus)
Friday, February 6, 1981

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

Last night when we adjourned we were discussing and debating the proposed amendment to Clause 1 of the proposed Canada Act, Annexe A, Schedule A. Honourable Jake Epp was on the conclusion of the proposed amendment, and unless it is a point of order, I would like to ask Mr. Epp to conclude on this proposed amendment.

Mr. Robinson: Just a brief point order, Mr. Chairman. There was some suggestion earlier this morning and I wonder if we could through you, Mr. Chairman, to the Minister determine whether or not there is any truth to the rumour that the Deputy Minister of Justice, Roger Tassé, has been replaced by Sir John Ford.

Hon. Jean Chrétien (Minister of Justice): Mr. Tassé is going to London as Constitutional adviser to the Great Britain government.

Mr. Robinson: Thank you, Mr. Chairman.

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

Mr. Epp: Thank you, Mr. Chairman.

As you know, last night we began debate on the amendment of Senator Tremblay, an amendment which would give us an ability in Canada to get out of the impasse that I think all Canadians now find themselves in.

Since the debate of last night and also the additional revelations of last night, there are obviously two courses of action that this Committee can follow this morning. I have given that of lot of thought, Mr. Chairman, since last night; and I have come to the conclusion that for this Committee, that this Committee and the government and the Canadian people, including the Minister, are at a certain crossroads and that somewhat out of this impasse, out of this collision course, out of the divergent views that are present and existent, there must and has to be a development whereby what I see as the absolute reality that a collision will occur, in order to avoid that collision a different course of action must take place.

That new course of action has to be one that is finally based on compromise, on flexibility, on give and take; and the recognition of the reality that all Canadians hold certain goals and that we should achieve those goals and avoid the controversy which I see.

Mr. Chairman, if we continue on the course of action as I now see it, there is no guarantee that this package in no matter what final form it may have, that this package will receive endorsation.

What concerns me even more is that the Canadian constitution will not enjoy the legitimacy that a constitution should have and that is a matter of very deep, deep concern to me; because a nation, if it is to have a sense of wellbeing, a sense of purpose, a sense of strength, then the wellspring of that

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strenghth must be the fundamental law on which the nation is based; and I, at this moment do not see either the support or the resultant legitimacy of either the product or the process.

I am concerned, Mr. Chairman, about the escalation of rhetoric and almost the lemming-like approach that we rather are willing to jump off the cliff to certain destruction, rather than to see the difficulty and avoid the destruction. I am concerned, Mr. Chairman, that should Parliament pass this resolution that this resolution might never see life in terms of constitutional law. Let me explain that.

There is within the British competence, and I am not going to discuss today the matter that was raised in the House yesterday by certain members of the House. I have my own private views about that. I will leave them there in a private sense.

But what could very easily happen, Mr. Chairman, and members of the Committee, is that the British Parliament at Westminster decides to do what is within their legislative competency and that is even before the resolution would get to Westminster to repeal Section 7 of the Statute of Westminster and once having appealed the Statute of Westminster they would have cut the Gordian knot, as far as Britain is concerned.

I, Mr. Chairman, have no doubt whatsoever that that is an option that is available to Westminster. I must remin members of the Committee that it was not Westminster that required or asked or demanded in 1931 to retain the power to amend the British North Amercia Act.

In fact, Mr. Chairman, it was the direct opposite. It was a Canadian request.

And the other members of the then Empire which became the Commonwealth who had the competency and disposition of sovereignty that they enjoyed at that time did not demand or request or receive that vestigial remain of the colonial period.

So, it was not a British effort, Mr. Chairman; it was a Canadian request.

Mr. Chairman, I ask Committee members to consider where does it lead Canada, where does it leave our country if Britain should follow that course of action? Where is our Constitution then? What is our Constitution then? What is then the fundamental law which gives structure and life and meaning to our country? Have members of the Committee seriously considered that? I ask them.

Mr. Minister, that is the collision that I fear and I ask you, through you to the Prime Minister, is he man enough, does he have the whole interest of the nation at heart whereby we as a Committee, and I would think this would give great strength to the enterprise, that what he would ask of Britain is to patriate the Constitution which means simply the repeal of Section 7 of the Statute of Westminster, with an amending formula.

I have placed before you, as you know, Mr. Minister, an amending formula known as Vancouver. I am convinced that that formula enjoys more support than the formula that you have presented, but I say to you, Mr. Minister, despite my personal preferences and those of my party, I am quite willing, if a compromise can be found, in fact, if a compromise could

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be found I would be only too pleased, ifa compromise could be found whereby Canadians could live with an amending formula.

I hear, for example, that the Premier of British Columbia has some modifications that he wants to have considered for the Vancouver formula. Maybe there is a possibility there. Possibly there is a chance, through some of the efforts that Premier Davis has been making, but I ask you, Mr. Minister, and through you to the Prime Minister, are you so convinced that no chance for compromise, in fact, exists in Canada?

Mr. Chairman, if we would then have the overall acceptance of patriation which I believe is there and then a process whereby we can conclude the amending formula, take that to Britain, do it tomorrow and get it passed the day after, and we would have cut the Gordian knot and we would have avoided the collision.

What about the other parts of the package, Mr. Minister? You might say to me, well, sir, what are you going to do with the rest? Our party has stated very openly and very clearly, Mr. Minister, despite the fact that a number of Premiers who share my partisan views, who have taken an opposite view on the Charter and I know the New Democratic Party is in that same situation where the NDP Premier of the province of Saskatchewan does not agree with their position on the Charter, where we would then establish, except through Parliament, a Charter and we could then consider what means whereby it could be approved in Canada.

Mr. Minister, I believe there are enough elements in there for compromise and I put them forward to you, not in a belligerent way or in a partisan way, but I put them forward to you knowing that you are the person, you are possibly the only person who has enough stature with the Prime Minister to change him from his course of action.

I want to avoid the collision, Mr. Minister I want to avoid the controversy; I desperately want to avoid a collision which would destroy or seriously hamper the good relations we have had between the United Kingdom and Canada; and I want a Constitution which enjoys not only the legitimacy but the support of the vast number of Canadians,

Mr. Minister, I give that to you in a sense and a spirit of nation building, not in the sense of a partisan approach but rather as a means whereby all of us, all Canadians, can get out of the impasse that I see coming and the inevitable collision which must take place if we continue on this course of action,

Thank you.

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

Mr. Nystrom: I do not know if it is possible, I hesitate to do this, Mr. Chairman, but I think I would like to ask the Minister a couple of questions, if I may.

The Joint Chairman (Mr. Joyal): At this point, I want to remind the honourable members that we are on a proposed amendment as so moved by the honourable Senator Tremblay. I have invited the honourable members to take part in that

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debate and when we adjourned last night, we had honourable Jake Epp to put forward his views on the proposed amendment.

We have already accepted a certain number of rules, when we are dealing with an amendment, or a sub-amendment, and those rules, I can repeat them to the honourable members, are as follows:

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

Members of the Joint Committee shall be entitled to speak once only to any amendment or subamendment, and for a maximum time of three minutes. The mover of any amendment or subamendment shall be entitled to a maximum of three minutes to conclude. Members of the Committee shall be entitled to a question to the Minister on a clause with a supplementary question to be allowed at the discretion of the Chair.

Those are the rules that were accepted unanimously and, as was rightly said, on the suggestion of the official Opposition. Of course I am entitled to recognize the honourable members on a question to the honourable Minister of Justice, but it should be within that context.

The Chair has been quite flexible in applying those rules and I think that no honourable members around the table can reproach the Chair for having been too hard or too stiff. I remind you that those rules have been adopted on the very suggestion of the official Opposition and that it has been agreed to unanimously around this table. The Chair has been flexible in a way now that it seems that there is a different set of tacit rules around the table, that it is a free and open debate. At this point we are dealing with an amendment and I have to apply those rules.

I will certainly recognize the honourable member, but only for a question at this point.

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

It will be a question and if you do not think it is in order, please rule.

The question is on the amending formula process set out by the Conservative Party and Senator Tremblay yesterday, and I ask because I think that things have changed since yesterday when I was here at the Committee and I want to give the Minister of Justice a chance to tell the Committee what I am sure he is going to be asked by the press and, namely, it is the veracity of the statement we saw last night on CBC and heard again in the news this morning which, if true, leads me to conclude that the Prime Minister of this country and the Minister of External Affairs have not been totally open with Parliament about some of the problems in Britain.

So, my question to the Minister is: are the reports we saw last night, can you confirm them; and my supplementary question is: if he can confirm the veracity, why has not the Prime Minister of this country or the Minister of External

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Affairs who has been dealing with the British been open and honest and told us the facts of life as they are in the British Parliament?

I do not in any way question the integrity of this Minister because he has not been dealing directly, as far as I gather, with the British.

The Joint Chairman (Mr. Joyal): I am sorry, Mr. Nystrom, I cannot accept that question at this very moment; it is a question for the House, it is not a question for this Committee in the context of this amendment.

This amendment suggests an alternative proposal for amending the Constitution of Canada and does not deal as such on the very core of the representations between the Prime Minister or any minister of the Crown and the British Government or anyone in the context of the British Parliament. At this point, I cannot accept this question. I think there is a proper forum to do so, it will be open at eleven o’clock this morning and that is where that question should be put.

The honourable Minister of Justice.

Mr. Chrétien: Mr. Chairman, I would like to take a few minutes to reply to the proposition of the Conservative Party in terms of the proposition by Senator Tremblay.

I will not be very long because I do think that the intervention of Mr. Mackasey and the intervention of Mr. Robinson exposed very clearly the failing of that proposition.

For my part, I find it unbelievable that, in fact, there are two solutions to it: one will be the definitive unanimity rule forever in Canada or, what is worse, during a period of time, during that first year, an amending formula that could be imposed on Canada that will not take into account the views of the Quebec government.

However, I do think that, I take it as a compliment because of course the interests of French Canada will be protected, if that were to happen, by us, because we are the government. So even on that score, as the federal government can block it, there is no danger, but that thing proposed by Senator Tremblay, and to rely on Mr. Trudeau and Mr. Chrétien to protect the interests of Quebecois, I am very pleased and I think that is a very great compliment.

However, in fact, in reality, with my knowledge of the file and the discussions, it will be the unanimity rule that will prevail. And today I hear honourable Mr. Epp pleading with me for new compromise. I have tried compromise.

I do think that it is pretty ironic that for years we have been accused of being in favour of the status quo. This amending formula will be the status quo forever. Never will you have 11 governments to agree to change the Canadian constitution on anything.

It is very nice to say that during the first year we can have a free period of time where a different number of provinces can

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be together; there are flaws in every aspect of it, and I do think there is a time in history where we have to take our responsibilities because when you want to plese everybody you do not touch the problem, and you have had, Mr. Chairman, the best example in front of this Committee.

Very sincerely, and I do think that this Committee has been an example to the House of Commons and the democratic process, but there was in all these five months a great ambiguity. You have seen all members of Parliament taking the Charter of Rights clause by clause, comma by comma, wanting to improve it and so on. When we came to the aboriginal rights it was a great feast in this room, we were to do something fantastic to correct an injustice that existed in Canada for a long time. Yesterday I was extremely chagrined when Isaw, in the spirit of trying to find a position when there is no position, the Tories had flip flopped and they are no longer in favour of entrenehing in the constitution aboriginal rights. They will wait until there is unanimity in Canada to entrench them, because I have no doubt in my mind that the formula proposed by Senator Tremblay will lead to unanimity, so it would probably never be entrenched; I cannot say it will never, it probably will never be entrenched.

The results of the amendment of the Tories will be the perpetual status quo in Canada; we have gathered this Committee because we have decided that it was time to build a new nation in Canada.

There was a reference that we did this and we did that during the referendum. Mr. Epp spoke about it yesterday. There was 74 members of Parliament on my party’s side and I was their main spokesman and I made one speech on every occasion I had; many, many speeches I made in order to keep Canada together. I always said: if you vote no, you will have a new Canada in which we will have a new constitution; in that constitution we will have the two official languages of Canada entrenched in the constitution.

I said to them that the right of the francophones outside of Quebec and the Anglophones in Quebec to minority education rights will be protected in the constitution.

I said all along that there will be a charter of rights in Canada that will give all the same rights to the same people across Canada, that the past discrimination based on race, religion and whatever others, sex, all the discrimination clauses, the nondiscrimination element that we put in was to be the same for all Canadians. That is what I said, that we were to enshrine in the constitution the notion of sharing. That was the other element of the speech.

It was repeated and repeated andrepeated.

On May 21, after I went across Canada, and everyone said: yes, we will have a new Canada, and any of those things that I referred to, to the First Ministers they said, yes, we can find the ground, but come September the trading was going on. The rights of some people were to be traded against the power of the provinces. I was there.

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I tried all summer, but to speak today about the new possibility of compromise, a premier was in London and said we need unanimity and that very premier says: I will never agree to a charter of rights in Canada.

You saw Mr. Charron in Quebec who said: yes, we will agree to patriation but if they agree to give us what we want. We are back to square one, Mr. Epp. Exactly square one.

So I do not want the status quo, I want a new Canada, a modern Canada.

I am not afraid of the collision with the British government because we have decided that by the elected people of Canada around this table here. There is only one House in Canada where the voice of all Canadians is being heard, it is the House of Commons. It is the common place where we come, and very often when we come from our provinces or our regions and we come to the House of Commons we gain a new perspective about Canada whether it is British Columbia or Newfoundland, even if you come from Quebec or from Ontario.

A lot of my views changed since I have been a member of the House of Commons because I had quit my own area where it was different, absolutely unilingual French, and I was ignorant of the other realities of Canada. I have learned it here.

To say that there is a mystical solution up in the air that by God’s will you will have it, I am telling you that the Premier of Newfoundland will never agree to any compromise if we do not accept what he wants on off-shore resources.

He came here, in his brief he said he was in favour of a charter of rights but because he did not get his offshore he was no more in favour of rights.

The same thing, the members of this side of this Committee who are in favour of aboriginal rights but now, not knowing exactly where to go, they do not think they want to entrench it any more; let us wait until there is a consensus. There will never be a consensus on that because at the end of the process it will be unanimity and it will always be the premiers who will find a reason not to agree to it.

So we have to take our responsibility, Mr. Chairman. It is no easy, history is never made in an easy way. We have to do what is right.

The collection with Great Britain is not my problem. Since 1867, each time Canada had spoken, the British Parliament has acted and there is not other reason today to act otherwise. We do not have to receive any lessons by any envoy. We know that it is the Parliament of Canada who speaks for Canadians that is dealing with that. This motion that we are going to London with, we are going there because they have to pass a law but they have their own precedents in relation to Canada, it has always been the same. When the House of Commons and the Senate of Canada have spoken, they acted, and they will do it again. I have no worry.

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There is conversation between this and that, and perhaps maybe indirect pressure, I do not know, but there is one thing, it is that in the House of Commons of London this week the Prime Minister in London said: when we receive a resolution from Canada we will act expeditiously according to precedent and the law.

I do not need any gossiping or anything else. That is the word of the Prime Minister of England, and they know what they have to do.

Here we are dealing with the problems in Canada and we can solve our problem here because I think that we cannot turn back the clock on what we are doing. We made some promise, we have worked on it, we have tried to find compromise. We have a charter of rights, we have aboriginal rights, we have multiculturalism in our charter.

We have the rights for francophones and anglophones to receive their education in their mother tongue. We are agreed that it should be done and now we will run back, try to bargain those rights when on the Wednesday night the handicapped were sitting there, we were all good, united? When the natives were in the hall here we were all united? And now we will tell those people that we, the elected people of Canada, we go back on our word? No, I will not do that.

We have an obligation, it is to finish this job. We have created expectations, we have to deliver now because there is nothing worse in a society than when you play with the less favoured citizens of the land. We do not want to play politics on the back of the handicapped, the natives, the francophones outside of Quebec who never had the constitutional right to have their education in French, the anglopltone in Quebec who have lost some of the privileges that they had before in terms of education, and need now permission to be educated in English.

When we found the compromise all together here to make sure that the concept of multiculturalism be included in the Canadian constitution, and we go back on that? I do not think we should. I think that it will be just a great tragedy.

Mr. Chairman, this proposition of Senator Tremblay will lead to the unanimity rule and it will be the status quo forever unless in that little period, there is four months where we could have an amending formula that could undo very easily what we have done here, all those rights that we have entrenched in the Canadian constitution.

I do think that now we have entrenched in the constitution the concept that we have two official languages in Canada. It is inthe constitution, and I do believe that on that the Province of Quebec should have a say if ever someone wanted to take it out. It is as simple as that.

The formula proposed by the Tories might lead, after the eighth month of the first year, to a situation where a simple

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majority of the province and of the citizens, as representing the citizens, can give us an amending formula that will not protect that duality in Canada.

So for all those reasons, and I can go on, I have private views, too, I think that there is nobody—I am glad that a lot of members of this Committee, and I like the generosity. of Mr. Epp to tell me that for my hard work perhaps I could gather more momentum or more unanimity in Canada. I have tried that under the best circumstances, and probably those who said right after the referendum, or before the referendum, we should act in the month following the referendum, perhaps they were wise. I felt that we had to give another chance to the first ministers, but the mood was there when on May 21 my fellow Quebeckers had decided that Canada is the best for them and that the rest of Canada were happy that the Canadian family was to remain together, in its great diversity; it was very united.

It is our responsibility to finish the job and whether or not a foreign government who are still involved, or a foreign Parliament who are still involved, what they will do is their problem, it is not my problem. If the House Leader in England is having some problems, he has to solve his problems. It is not my problem.

Here in Canada we spent four months, hundreds of hours, hundreds of pages of testimony; never in the history of Canada has there been so much participation to do anything, never a minister has been sitting at the table for weeks and weeks and weeks replying to the questions, going back to his cabinet, calling provincial attorneys general trying to find solutions, going to the bottom line of some of them who were running away right after.

I have had my frustrations like anybody else but it is not frustration when you know that what will be the end result is going to be a Canada that is completely independent, that people coming from abroad will come to us and tell us we have to teach them a few lessons.

We have matured in Canada, we can decide for ourselves. It is a political problem, it is not a legal problem. We are taking the political risk and we know that, but we have taken other political risks in the past, we have, it is the nature of public life to do what is right and I am telling you, Mr. Chairman, that when we decided in Canada that we will have a Charter of Rights in a diversified society like ours, where we protect all the minorities against the possible abuse of the majority, when we are entrenching in our constitution the notion of sharing, when we are confirming to the provinces the ownership of resources and giving them indirect taxation plus interprovincial trade, when we are doing all these things and the people are telling us go back to square one, I do think that it is an impossibility; we will be denying the Canadians what they deserve. The product of the work that has been done in this Committee by the 25 members who have worked as hard as ever I have seen in Committees to produce a solution, a compromise, to give what is good for all Canadians of all Canada.

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The diversity of our society will be preserved and the equality will be improved and that is why I am urging the Committee to reject this proposition, to go ahead with the plans we have, in the next two years the provinces will have an occasion to find a new amending formula and if they do not find one, in two years from now the Canadian people will decide between the federal amending formula and the provincial amending formula, at last we will have a Canadian constitution made by Canadians, for Canadians, for a Canada that we will all be proud of.

Thank you very much.

The Joint Chairman (Mr. Joyal): Mr. Robinson, I cannot recognize you on the speech. You had your opportunity last night.

Mr. Robinson: A supplementary question, Mr. Chairman?

The Joint Chairman (Mr. Joyal): A supplementary question?

Mr. Robinson: Yes.

The Joint Chairman (Mr. Joyal): I am sorry, you had an opportunity last night to debate that question at full length. I have the name of all those who participated last night and the time allocation that the Chair allowed them without any kind of suggestion of preventing them from concluding, and at this point Senator Tremblay has raised his hand, he is the mover of the motion and I will ask him to conclude on the proposed motion.

[Translation]

Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

You have said, Mr. Minister, that our amending formula would bring us back to square I. How could that happen? In the one year period that the provinces and the Federal Government have to reach an agreement on an amending formula, such as the Vancouver Formula, which we favour and which made significant progress last summer.

Given what we know now, I am sure that we could obtain a consensus among the provinces on the Vancouver Formula.

The provinces have already expressed their consensus in recent months. The provinces themselves devised this formula. I, therefore, am absolutely certain that there will be provincial consensus on it.

With respect to Quebec’s interest, I think they would be well protected under this formula, and what is more, the formula is flexible enough to give Quebec much more latitude for self-realization than it would have under any other formula, which provide only for negative action through veto.

The Vancouver Formula allows Quebec to make a positive statement about its reality. I have no concerns about the Vancouver Formula in that regard, Mr. Minister. I repeat that

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I am not at all concerned about achieving provincial consensus during the period specified in our formula.

However, I may have some concern about the Federal Government during this period.

I know that the Prime Minister of Canada has said that he would be prepared to accept the Vancouver Formula, provided he got the Charter of Rights at the same time. His attitude in this respect is similar to that which you mentioned in describing the provinces’ behaviour.

It is therefore conceivable that a formula such as the Vancouver Formula could be blocked by the federal veto. In other words, if we have to go back to square 1, to unanimous consent, the problem in this case would be caused not by the provinces but by the Federal Government.

If the Federal Government agrees to at formula that the provinces have themselves proposed, we would not be going back to unanimity, Mr. Minister. We would have a formula flexible enough to reflect the diversity of this country, particularly the identity of Quebec.

This is my brief reply, Mr. Minister, to your comment that we would be going back to square 1.

If we have to go back to square I with the Vancouver Formula, then my opinion is that would be the fault of the Federal Government. At the moment, it is the only government which has expressed any categorical reluctance, even though the prime minister has started to show a positive attitude.

The second point I would like to comment on is your reference to the Charter of Rights. Our stand on the Charter of Rights has been very clear, Mr. Minister. We agree that we should endeavour to enshrine a Charter of Rights in the Constitution. We have said repeatedly that the handicapped, the aboriginal peoples and all groups affected by the Charter of Rights should have their rights guaranteed in a charter entrenched in the Constitution. We fully agree with this point of view. Consequently, as representatives of the House of Commons and of the Senate, we have participated positively in the drafting of the Charter of Rights and Freedoms. Our position on this point has been very clear.

Mr. Minister, you used an expression which struck me. You said that the job is not over and that we must come across with the goods. We have taken stands and there are certain positions on which we agree, Mr. Minister. You are right in saying that once the charter has gone through the Parliament of Canada, since we are a federation, that we are only half-way toward the entrenchement of a charter. The other involves the provinces.

[Page 18]

Now, because some provincial premiers have expressed some reservations about the charter, you have concluded that the second half of the task cannot be carried out here in Canada and that it must be done through London.

That is how you are finishing the job, Mr. Minister. We would like to finish it here in Canada with the participation of the provincial premiers.

Perhaps, as you have said in relating past events, certain provincial premiers at the last conference were reticent to include rights and freedoms in a constitutional charter. As far as I know, their reservations were only about making rights; and liberties a part of legislation because in actual fact all the provinces, as well as the federal government, have charters of rights and freedoms at the present time. Now, we are dealing with charters entrenched in legislation. We are dealing with the last stage of work, which is that of entrenching a charter in the constitution and that is where some people are hesitant.

Mr. Minister, are we going to claim that no progress can be made in this area? We are all aware that public opinion favours an entrenched charter of rights. It is public opinion which guides us here in Parliament and guides us in our efforts toward entrenching a charter. Public opinion has influenced all our work on this issue.

Do you not feel that that same opinion is not a catalyst for progress to be made at the provincial level?

Generally speaking, the reservations have not been across the board. There have been some signs of reticence, but these things can change thanks to the very opinion which has helped us to evolve our line of thinking.

In all fairness to the provinces, I do not think we can declare that progress has been irrevocably blocked in this area. I hold exactly the opposite opinion, However, the chances of opinion evolving, of the attitude of provincial leaders changing would be much stronger, in my opinion, if they are included in the final stage of our work and if the provincial authorities participate actively in drafting the charter. In that way, the charter would not only be the fruit of Parliament’s work, but also that of the provinces. I just have one more comment to make in closing.

Promulgation of a charter is not enough for its impacts on the jurisdictions of both levels of government are quite obvious.

The conditions under which it will be implemented must still be determined in the interest of those very people we wish to protect. They must allow an openness of spirit and be very positive towards all the parties involved in its implementation, not only the federal government but the provinces as well. I think that real participation and true consensus are possible and even probable thanks to the evolution of public opinion. It is that participation and consensus of the parties involved in its implementation that will make the charter more than a piece

[Page 19]

of paper, that will make it a living reality reflected in the activities of both levels of government.

Mr. Mackasey pointed out yesternday, like others before him, that our approach was only causing delay. As far as the amendment formula is concerned, it is quite the contrary. We are expediting the whole process. As far as the charter is concerned, perhaps; but, what you refer to as a delay in pejorative sense is what we call creating a solid foundation which is essential to the charter becoming a reality.

Mr. Chairman, those are the remarks I had to make. I will limit myself to these comments so that we can proceed.

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

[Text]

I understand that the honourable members are now ready for the question and I understand too that there will be a recorded vote on that very question.

All those in favour of the proposed amendment please answer the call of the Clerk of the Senate and of the House of Commons.

Amendment negatived: Yeas, 8; nays, 15.

Clause 1 of the proposed Schedule A as amended agreed to.

Clause 2—Parliament of United Kingdom not to legislate for Canada.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 2. On Clause 2 the Chair has been informed that there is an amendment. It is an amendment moved on behalf of the government body. It is identified G-3, Canada Act, Clause 2, page 2.

[Translation]

The Chair has been informed of an amendment identified as Canada Act, [Text] , article 2, page 2, and I would like to invite monsieur Corbin to move the proposed amendment.

[Text]

Mr. Corbin: Mr. Chairman, I move that Clause 2 of the proposed Canada Act be amended by (a) striking out line 27 on page 2 and substituting the following:

1981 comes into force shall extend to
and

(b) striking out lines 24 and 25 of Schedule A thereto on page 2 and substituting the following:

Loi constitutionnelle de 1981 ne font pas partie du droit du Canada

[Translation]

Mr. Chairman, I move

that Clause 2 of the proposed Canada Act be amended by:

a) striking out line 27 on page 2 and substituting the following:

“1981 comes into force shall extend to”; and

b) striking out lines 24 and 25 of Schedule A thereto on page 2 and substituting the following:

[Page 20]

«Loi constitutionnelle de 1981 ne font pas partie du droit du Canada.»

Thank you.

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

[Text]

Amendment agreed to.

Clause 2 as amended agreed to.

Clause 10 ofthe proposed Schedule A agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite the honourable members to move on Clause 3. On Clause 3 the Chair has not been informed that there is any proposed amendment.

Clause 3 of the proposed Schedule A agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 4. On Clause 4 the Chair has not been informed of any proposed amendments.

Clause 4 of the proposed Schedule A agreed to.

Preamble agreed to.

Proposed Schedule A agreed to.

The Joint Chairman (Mr. Joyal): So far as the title is concerned, the Chair has been informed of the proposed amendment and I would like to invite Mr. Irwin to move the proposed amendment.

Mr. Irwin.

Mr. Irwin: G-4, Mr. Chairman?

The Joint Chairman (Mr. Joyal): Yes, it is the last amendment that honourable members should have a copy of. It is number G-4, Canada Act long title, page 2.

[Translation]

The amendment is identified as Canada Act, long title, page 2.

[Text]

Mr. Irwin: Thank you, Mr. Chairman I am pleased to move that the long title of the proposed Canada Act be amended by

(a) striking out lines 1 and 2 on page 2 and substituting the following:
“An act to give effect to a request by the Senate and House of Commons of Canada.

(b) striking out line 1 of Schedule A thereto on page 2 and substituting the following:
«Loi donnant suite at une demande du Sénat et de la Chambre des communes du Canada».

[Translation]

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

Mr. Corbin: Mr. Chairman, it is moved:

That the long title of the proposed Canada Act be amended by:

(a) striking lines 1 and 2 on page 2 and substituting the following:
“An Act to give effect to a request by the Senate and the House of Commons of Canada”;

(b) striking line 1 of schedule A thereto on page 2 and substituting the following:
«Loi donnant suite at une demande du Sénat et de la Chambre des communes du Canada».

[Page 21]

Thank you.

[Text]

Amendment agreed to.

[Translation]

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

Senator Tremblay: I would like some explanation of the reasons why the title is being amended. In my estimation, the title reflected the meaning and intention of the proposed legislation. What this proposed resolution does is actually amend the Constitution of Canada.

Now, why take away the substance, the title, and be left only with the process as I refer to the request by the Senate and the House of Commons?

The title contains the substance of the bill.

So, I would like some explanation, please.

Mr. Chrétien: Senator Tremblay.

I believe I explained this last time but I can repeat it.

The amended title is a much truer reflection of what we are doing at the moment. It is more than just an amendment to the Constitution of Canada, we are patriating the Constitution.

There were some alterations made yesterday but the schedule called for a few corrections. One proposal that was made, but if I am not mistaken it was changed. Now, as far as the Statute of Westminster is concerned, I feel the title reflects what we are doing much more accurately. This resolution is actually a bill to enact a request of the Senate and House of Commons of Canada. The request is more than an amendment to the Constitution of Canada.

Senator Tremblay: May I ask a supplementary?

So, why is there no reference to the substance of the act? I understand perfectly what you are saying and I have no objection to mentioning that this legislation would enact a request of the House of Commons and the Senate. However, why not say “to amend the Statute of Westminster and the Constitution of Canada”? Why not describe things as they really are?

Mr. Chrétien: Listen, Senator Tremblay. It is the title of an act to give effect to a request by the Senate and the House of Commons of Canada.

There are also 59 sections. So, obviously, the whole process has been included and I do not see the relevance of including other words in the title. The title cannot include everything. It is only a general description of the intention of the resolution which is, precisely, to give effect to a request by the Parliament of Canada.

Adding other words would not change anything. In fact, it would only complicate the situation.

Senator Tremblay: Yes, but it would say more . . .

Mr. Chrétien: Perhaps. Maybe.

Senator Tremblay: This resolution actually represents the British Parliament’s last gesture towards Canada. It is the

[Page 22]

repatriation of the constitution through the amendment of the Statute of Westminster. It is also the amendment of the constitution of Canada and the last time the British Parliament will be called upon to intervene. It would seem to me logical that the title reflect the origin and content of the request.

What prevents it from doing so?

Mr. Chrétien: Nothing. Now many times have I said that certain things must be left out.

Mr. Robinson, member of Parliament was the expert in these matters. He wanted to put everything in the constitution, including apple pie recipes! Really! I think that we are both right. Your version would be more complete, but ours is shorter.

So as it is too late to make amendments, none will be proposed. We could have accepted them at the amendment stage. . .

The Joint Chairman (Mr. Joyal): Senator Tremblay, one last question.

Senator Tremblay: One last remark, Mr. Minister.

I should like to point out that this is an amendment to the title. The title in the first version at least stated in part what the intention of the act was, that is, to amend the constitution of Canada.

I do not object to the words “amending the Statute of Westminster” being added. That phrase would indicate clearly that patriation would be the last British gesture. The origin of the request should also be added. Newly substituting the origin of the request instead of stating the intention of the legislation, to amend the Statute of Westminster in the constitution of Canada, is paradoxical in my estimation.

The change could not be in the interests of clarity, because mentioning that the act is to give effect to a request from Parliament does not describe the implications of the request. The description is only a partial one. I would have no objection to any more detailed explanation of what is being done by adding the words “amendment of the Statute of Westminster”; however, I do find somewhat anomalmous that a title be stripped of all its substance.

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

[Text]

Mr. Hawkes.

Mr. Hawkes: Mr. Chairman, as the work of the Committee winds down it is perhaps appropriate that we spend a minute or two on urging the government once again to consider or reconsider what it is doing. The Minister spoke a few moments ago about his desire to take us into the modern age.

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

[Page 23]

The Joint Chairman (Mr. Joyal): Mr. Hawkes, if you have an intervention it should be on the very amendment and if you want to speak in broader terms there are other opportunities in the other questions that are under debate; but at this moment we are on a specific amendment to a proposed title and the Chair has not called the vote on the title as such but on the proposed amendment. As you understand the rules to deal with an amendment and the rules to deal with a clause as amended are different; so I do not want to prevent you of course from putting forward your views but I would invite you to remain on the course of the amendment as such. If you have views or interventions to put forward on general terms, that should be done in other parts of our debate this morning.

Mr. Hawkes: Thank you, Mr. Chairman, I thought I was being right on and very relevant. Titles today, Mr. Chairman, are stored in computers; titles today are more accessible to more people; we should be more careful with titles in a modern age than perhaps we had to be in a historic age where we just had printed pages.

That the need for a title should convey information to assist scholars in the future, to assist scholars in Third World, north-south countries, I think cannot be denied; and the issue brought up by Senator Tremblay in relationship to this title is of that kind. Should we as a Committee, should the government be titling this act in a manner designed to ensure maximum obscurity. Given the way in which the act has come about, perhaps they should, but if the government sincerely wants people to be aware of the fact that the constitution of Canada has been amended then I suggest that the wisdom put forward by Senator Tremblay should be attended to and I would urge the government members to reconsider.

Urging this Committee to adopt a title that will . . .

An hon. Member: Point of order.

The Joint Chairman (Mr. Joyal): I am sorry to interrupt you, Mr. Hawkes. The honourable Minister of Justice.

Mr. Chrétien: You know I have been a very flexible man. I am willing to accept on behalf of the government that we will have the words “in respect of the constitution of Canada” and we have here an amendment. If you want to put it to vote I have no objection, Mr. Chairman.

The Joint Chairman (Mr. Joyal): I understand at this point that the mover would have to withdraw his amendment by unanimous consent of the honourable members of this Committee. Is there unanimous consent to withdraw the amendment?

Some hon. Members: Agreed.

The Joint Chairman (Mr. Joyal): So we come back then on the title of the proposed Canada Act.

[Translation]

Senator Tremblay: Mr. Chairman, may I say that I appreciate the ministers good will in at least referring to the Constitution of Canada in the title. However, I wonder if such a neutral reference is not intended to, I would not say hide, but avoid questions that could be raised in the minds of those who will read the title.

[Page 24]

[Text]

The Joint Chairman (Mr. Joyal): Show the title of the proposed Canada Act and of the proposed Schedule A carried.

Title agreed to.

Canada Act as amended in Schedule A and Schedule B agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to come back in their document on page I of the proposed resolution.

Mr. Munro: Would you read the title as it now is drafted. I think it would be useful to have it.

The Joint Chairman (Mr. Joyal): It does not mean the same, honourable member. I should point out to the honourable member that the Chair has called the title and the title has not been amended by the honourable members. This act may be cited as the Canada Act, that does not mean the same—an act to amend the constitution of Canada. Thank you very much. The honourable Minister of Justice.

Senator Tremblay: I would not object to that.

Mr. Chrétien: No, the long title:

An act to give effect to a request by the Senate and the House of Commons of Canada in respect to the constitution.

We add some words.

Mr. Hawkes: On a point of order, Mr. Chairman, there was unanimous consent to withdraw the amendment and we called the vote on the original title and that was passed.

The Joint Chairman (Mr. Joyal): Yes.

Mr. Hawkes: So that is the current situation.

The Joint Chairman (Mr. Joyal): Exactly. At this point the Chair has invited the mover to withdraw the amendment and the further amendment that is being put forward is an amendment that has not been moved in the proper way and the Chair has called the vote on the proposed specific clause and the vote remains the same at this point.

Mr. Hawkes: On a point of order, I would like to thank the government members. I think the original title was a great deal better and we appreciate their concurrence.

[Translation]

Senator Tremblay: My satisfaction is complete.

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

I would like to invite honourable members . . .

[Text]

Mr. Chrétien: I think, I do not mind but I think when you act in good faith like I have done, I said that we are adding those words to the title in order to accommodate a request by the Senators, and the interpretation of the acceptance I made has been misinterpreted by the Chair.

I think we have acted here all along in good faith and to come at the last minute and change the title just because it was not understood properly by the Chair, I think I am entitled to have there what I have proposed.

[Page 25]

The Joint Chairman (Mr. Joyal): Mr. Munro, I would like to request the unanimous consent to propose the amendment.

Is there unanimous consent to—I will finish my question, Mr. Munro—shall the Chair have unanimous consent to add to a proposed amendment to the long title of the Schedule A— I will finish if I may and I will recognize honourable members in due time-shall I have the consent of the honourable members of this Committee to add to the title an amendment that would read:

An act to give effect to a request by the Senate or the House of Commons of Canada in respect of the constitution of Canada.

Mr. Hawkes: Mr. Chairman, it is 11 o’clock. I think I will withhold consent at this point. We will be meeting again on Monday and can consider it at that time.

The Joint Chairman (Mr. Joyal): This meeting is adjourned until 3:30 Monday afternoon.

[Translation]

The meeting is adjourned.

WITNESSES

From the Department of Justice:

Mr. Roger Tassé, Q.C., Deputy Minister;
Dr. B.L. Strayer, Q.C., Assistant Deputy Minister, Public Law.

Other Issues: