Canada, House of Commons Debates, “Establishment of Special Joint Committee of the Senate and House of Commons”, 32nd Parl, 1st Sess (6 October 1980)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1980 at 3274, 3280-3314.
Other formats: Click here to view the original document (PDF).
ESTABLISHMENT OF SPECIAL JOINT COMMITTEE OF THE
SENATE AND HOUSE OF COMMONS
On the order: Government Notices of Motions:
October 2. 1980 -The Minister of Justice:
That a Special Joint Committee of the Senate and of the House of Commons Be appointed to consider and report upon the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the government on October 2, 1981, and to recommend in their report whether or not such an address, with such amendments as the committee considers necessary, should be presented by both Houses of Parliament to Her Majesty the Queen.
That 15 members of the House of Commons to be designated no later than three sitting days after the adoption of this motion by members on the part of this House of the Special Joint Committee;
That the committee have power to appoint from among its members such subcommittees as may be deemed advisable and necessary and to delegate to such subcommittees all or any of their powers except the power to report directly to the House:
That the committee have power to sit during sittings and adjournments of the House of Commons;
That the committee have power to send for persons, papers and records. and to examine witnesses and to print such papers and evidence from day to day as may be ordered by the committee;
That the committee submit their report no later than December 9, 1980;
That the quorum of the committee be 12 members. whenever a vote, resolution or other decision is taken, so long as both Houses are represented and that the joint chairmen to authorized to hold meetings, to receive evidence and authorize the printing thereof, when six members are present so long as both Houses are represented, and
That a message be sent to the Senate requesting that House to untie with this House for the above purpose. and to select, if the Senate deems it to be advisable. members to act on the proposed Special Joint committee.
Madam Speaker: Pursuant to Standing Order 21(2), this notice of motion is transferred to and ordered for consideration under government orders later this day.
ESTABLISHMENT OF SPECIAL JOINT COMMITTEE OF THE
SENATE AND HOUSE OF COMMONS
Hon. Jean Chrétien (Minister of Justice and Minister of State for Social Development) moved:
That a Special Joint Committee of the Senate and of the House of Commons be appointed to consider and report upon the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the
Constitution of Canada” published by the government on October 2, 1980, and to recommend in their report whether or not such an address, with such amendments as the committee considers necessary, should be presented by both
Houses of Parliament to Her Majesty the Queen;
That 15 members of the House of Commons to be designated no later than three sitting days after the adoption of this motion be members on the part of this House of the Special Joint Committee;
That the committee have power to appoint from among its members such subcommittees as may be deemed it advisable and necessary and to delegate to such subcommittees all or any of their powers except the power to report directly
to the House.
That the committee have power to sit during sittings and adjournments of the House of Commons,
That the committee have power to send for persons, papers and records, and to examine witnesses and to print such papers and evidence from day to day as may be ordered by the committee;
That the committee submit their report no later than December 9, 1980;
That the quorum of the committee be 12 members, whenever a vote, resolution or other decision is taken, so long as both Houses are represented and that the joint chairmen be authorized to hold meetings, to receive evidence and authorize the printing thereof, when six members are present so long as both Houses are represented. and
That a message be sent to the Senate requesting that House to unite with this House for the above purpose. and to select, if the Senate deems it to be advisable. members to, act on the proposed Special Joint Committee
He said: Madame Speaker, for over half a century federal and provincial governments have agreed on the desirability of bringing home Canada’s constitution by means of establishing a procedure for amending all of it in Canada, and yet despite numerous attempts and many federal-provincial conferences, governments have been unable to agree on means to achieve these objectives.
For one reason or another, the federal-provincial attempts of 1927, 1931, 1935-36, 1950, 1961, 1964, 1971, 1975-76 and 1978-79, to find such an amending formula all failed.
On May 9 of this year, ten days before the Quebec referendum, the House of Commons approved unanimously a resolution proposed by the hon. member for Edmonton East (Mr. Yurko) and seconded by the hon. member for Provencher (Mr. Epp). The resolution read:
Whereas some provinces have repeatedly refused to endorse the patriation of the Constitution of Canada from Britain-
It was moved:
That the Parliament of Canada submit an address to Her Majesty the Queen, that Her Majesty may graciously be pleased to cause a bill to be laid before the Parliament of the United Kingdom to provide for the amendment in Canada of the Constitution of Canada.
Some hon. Members: Hear, hear!
Mr. Chrétien: At the time the resolution passed, the Prime Minister (Mr. Trudeau) said:
We are determined that in the months ahead the House will have an occasion to express itself on this matter.
Mr. Dick: Madam Speaker, I rise on a point of order. I hesitate and apologize for interrupting the Minister of Justice…
(Mr. Chrétien) on this occasion, but we cannot get copies of the resolution. He will be using it in his speech; apparently they do not have any. I wonder, since it has been tabled, if there is some way we can get copies of the resolution as that is what we will be debating.
Mr. Chrétien: Madam Speaker, I am told that it is on the order paper, and I will follow the usual rules. There is nothing I can do about it at this moment.
Madam Speaker: I have asked the Clerk to find out whether the resolution has been distributed. I believe it has. But the hon. minister could continue his speech while I find out if I am able to inform the House whether this resolution has been distributed. Perhaps we could continue and hear the minister in the meantime.
Mr. Chrétien: I am informed that everyone has a copy.
Mr. Nowlan: That is the notice.
Mr. Chrétien: I am not in charge of distribution, so there is not much I can do about it. I have many responsibilities, but not that one.
Madam Speaker: Copies of the resolution are available. They have not been distributed. They will be in the minutes following. Perhaps we could then resume the debate and listen to the hon. Minister of Justice (Mr. Chrétien).
Mr. Nielsen: That is very nice.
Mr. Pinard: Madam Speaker, it is obvious that the documents tabled today by the Right Hon. Prime Minister (Mr. Trudeau) have not yet been distributed, but to clarify the situation, I want to advise the House that as early as last Thursday, even before the Prime Minister, the Leader of the Official Opposition (Mr. Clark) and the Leader of the New Democratic Party (Mr. Broadbent) had an opportunity to appear on television, I had made sure that each House leader had enough copies of this resolution for distribution to the members of his caucus.
Madam Speaker, we have taken this action out of sheer courtesy and not because we were under any obligation to do
so. The purpose of the motion, which appears in today’s order paper, is to refer the resolution to a committee, and we have taken precisely this step to make it possible for hon. members to examine it over the weekend. Madam Speaker, you have also mentioned that this text is now available for hon. members, but I wanted to make it clear that these documents had in fact been provided last Thursday to all parliamentary leaders for distribution to their respective colleagues.
Mr. Dick: Madam Speaker, my only problem is that we are now entering debate on the very resolution. I have a right as a member of Parliament to have that document. It has been The Constitution tabled and I am asking for the document before we continue. If the government does not have the ability to do that and ministers say they control and run things-
Mr. Trudeau: You have had it since Thursday.
Mr. Dick: I do not have a copy.
Mr. Chrétien: Madam Speaker, I would like to inform the hon. member that on Thursday afternoon I made myself available to the caucus of the Conservative party to brief them. He did not bother to come.
Some hon. Members: Hear, hear!
Madam Speaker: Order, please. I think we can put an end to this point of order by distributing the documents which are requested by the hon. member at the present time.
Mr. Epp: On a point of order, Madam Speaker, in order to get the debate going I believe the Minister of Justice (Mr. Chrétien) would want to be accurate in his statements. He mentioned that he had made himself available last Thursday afternoon to our caucus for discussion on the draft resolution. I think he would recognize, in conformity with what happened, that while he made that offer there was a delay in meeting with our caucus for the simple reason that the government requested a delay so that they could change their documents. They were not ready. So the meeting took place in the evening rather than in the afternoon. It was at the government’s
request, because their documents were not ready.
Mr. Chrétien: Well, Madam Speaker, we are a long way
from Thursday-five days ago.
With the permission of the House I will continue. At the time the resolution was passed the Prime Minister said, and I quote:
We are determined that in the months ahead the House will have an occasion to express itself on this matter … For my part, I think it would be appropriate if we consulted the provinces before acting unilaterally on that motion.
The House leader of the official opposition, in support of the motion, commended the Prime Minister “for indicating the necessity and, indeed, if not the necessity, certainly the propriety in our system of consulting the provinces before we act unilaterally.” indeed, the Leader of the Opposition (Mr. Clark) himself said in Toronto on June 6 of this year, just before the June 9 first ministers’ conference, as reported in the Montreal Gazette of June 7, 1980:
The participants in Monday’s conference speak for I l governments, Parliament speaks for 23 million Canadians. If the first ministers of the federation cannot make marked progress toward changes which fit the Canada of the 1980s
then the Parliament of the federation may have to assert a stronger role.
Some hon. Members: Hear, hear!
Mr. Chrétien: But if it does, that must not be as the instrument of one government, but as the forum of all Canada. Parliament, alone among institutions, reflects that country and can lift the discussion above the question of what governments need and focus on the question of what the nation needs.
An hon. Member: Well said!
Mr. Chrétien: During the referendum campaign members from both sides of this House, and leaders of all provincial governments outside of Quebec, expressed clearly their commitment to early and significant constitutional change. For my part, I began consultations with the provinces the day after the referendum. These consultations lasted all summer. At both the ministerial level and the level of first ministers we attempted to reach agreement on means of renewing our federation, bringing our constitution home, updating our political institutions, changing the distribution of powers, and guaranteeing economic, political and legal rights of Canadians.
As a federal government, we made proposals which would have increased the power of the provinces in many areas. As such, we were prepared to further decentralize powers in a country which is already highly decentralized. But we refused to accept demands which would have impaired the ability of the national government, the government of all Canadians, to take action in the national interest in cases where that interest transcends the interest of a particular region or province.
The federal government offered to transfer to the provinces jurisdiction over family law. We were prepared to give the provinces the ability to levy indirect taxation on resources, and the ability to make laws in the field of interprovincial trade in resources. This would have been of particular benefit to all western Canada. Indeed, our proposals would have resolved all of the problems which have concerned the province of Saskatchewan.
I might add here that I listened with interest to the statesmanlike approach taken on Thursday evening by the Leader of the New Democratic Party (Mr. Broadbent) in stating the policies of his party. His views on resource ownership coincide with the offer I made during this summer’s constitutional negotiations.
Mr. Clark: The deal!
Mr. Chrétien: I can only regret that our offer at that lime was rejected by some of the provinces as not going far enough. We proposed new provincial powers over fisheries and we offered the provinces more revenues and a greater say in the management and development of offshore resources. Under our offer, Atlantic Canada would have received 100 per cent of offshore revenues until the income of those provinces was above the national average.
We are prepared to give the provinces more jurisdiction than they have ever had in the field of communications. We agreed to enshrine in the constitution the obligation of the federal government to make equalization payments to the less favoured provinces.
We stated our willingness to place the Supreme Court in the constitution, and we said that we would give the provinces a say in the appointment of Supreme Court judges. In return for all of these proposed transfers of jurisdiction to the provinces, the federal government did not seek broad, new powers for itself. But we did insist that the provincial governments must recognize Canada as a country where there is one citizenship and not ten provincial citizenships. We stated that Canadians should have much more in common than just the same passport.
We told the provincial governments that they could have more of our powers if they agreed that Canadian citizens, as a matter of right, should be free to take up residence, to hold a job, to invest their savings, to sell their products and to purchase their supplies anywhere in Canada. And that we wanted these rights to be guaranteed in the constitution.
We were unable to achieve agreement, despite three months of intensive consultation, discussion, and negotiation with the provinces. We wanted to reach agreement with the provinces, and we did everything possible to achieve agreement except compromise on our fundamental principles.
The reason we did not reach agreement was that provincial governments attempted to bargain the rights of Canadians
against more powers for the provinces. We were prepared to negotiate powers of governments, but we would not negotiate peoples’ rights against powers for governments.
The House leader of the opposition said on May 9 that the federal government should consult with the provinces “before we act unilaterally”. We spent the next three months consulting,but without the success we al] hoped for. We have no choice now but to act in the House of Commons.
We must act now for three reasons. First, all of us made a solemn commitment to the people of Quebec that if they voted for federalism, there would soon be significant constitutional renewal. We campaigned in Quebec–and I remember twice sharing a platform with the Leader of the Opposition — telling the people that all of Canada is their country; that their individual rights and language rights will be protected everywhere in Canada, that the principle of sharing is fundamental to our society. Today we must fulfil that promise.
The second reason to act now is to provide a momentum for further change. Once we have succeeded in bringing our
constitution home with an amending formula, we will have created a mechanism to permit constitutional change as and
when necessary. We will no longer have to hesitate because of the humiliation of having to go to London every time we want to change our constitution.
The measure which I am introducing today will change the dynamics of constitutional negotiation and will facilitate the achieving of further reform. No longer will we be in a position where powers will be negotiated against patriation. We will negotiate powers on their merits. I believe that this will mean more rational negotiations and a far better chance for a successful conclusion.
Today marks the end of one stage and the beginning of another. The second stage of constitutional reform will deal
with division of powers and with the updating of our political institutions. I am anxious that this process get under way as…
soon as possible, for it too is part of our commitment to the people not only of Quebec but of all of Canada.
The third reason to act now is that the people of Canada can no longer tolerate interminable discussion about the constitution and are frustrated by the inability of politicians to make Canada work the way it can and should. Canadians believe that it is vital that we act now so that we can get this first major stage in constitutional reform behind us.
For all of these reasons, I am proud to have the opportunity today of introducing a motion in the House of Commons
which will provide for the patriation of our constitution, for the entrenching of a charter of rights and freedoms including mobility rights of persons and minority language education rights, and for the enshrining in the constitution of the principle of equalization and of a commitment of governments to equal opportunity for all Canadians and the reduction of economic disparities.
The constitutional proposals of the federal government do not affect the division of powers in Canada. There is no
transfer of powers from the provinces to the federal government. All that has been done is to prohibit both levels of government from interfering with fundamental rights of Canadians. These rights which are inherent in Canadian citizenship include not only fundamental freedoms, legal rights and democratic rights, but also the right to educate our children in their own official language. I must say that I find it strange that the Leader of the Opposition would take such violent objection to this as being fundamentally contrary to the nature of Canada. I believe that the substance of the resolution
reflects the Canada all of us believe in.
In technical terms, the address to the Queen, which is set out in the resolution, is similar to previous addresses to the monarch and asks the Queen to lay the Canada Act before the Parliament of the United Kingdom for enactment.
The Canada Act commences with the recital of the action taken in Canada that makes it appropriate for the United
Kingdom Parliament to enact the proposed bill. The bill is technical in nature. It provides for the enactment of a schedule, The constitution act, 1980 containing the new substantive provisions that would have the force of law in Canada. It would also continue as law in Canada existing constitutional statutes relating to Canada and provide that no future United Kingdom laws apply to Canada. Finally, the bill contains provisions relating to its implementation, such as the coming into force of various provisions.
The constitution act, 1980 is set out in schedule A to the Canada Act. This statute contains important new provisions that, for the most part, are not closely linked to matters now provided for in the Constitution of Canada. It includes the Canadian charter of rights and freedoms and provisions relating to equalization and regional disparities as well as procedures whereby the constitution could in future be amended in Canada. In addition, the bill provides for the preparation of the first official French version of the Constitution of Canada and would change the titles of previous British North America Acts so that they would in future be known as Constitution Acts. These name changes and other consequential amendments are set out in schedule I to the constitution act, 1980.
Upon the adoption of the Canada Act by the United Kingdom Parliament, Canada would have a constitution that would
form part of the body of laws of Canada that could be amended only in Canada.
Madam Speaker, after 113 years of nationhood, Canada at last will be able to bring its constitution home. No longer will it be necessary to go to the parliament of another country to amend our own constitution.
In addition to bringing the constitution home, the resolution provides for an interim amending procedure which gives full weight to the role of the provinces in our federal system and provides more legal protection for provincial interests than do the existing practices of constitutional amendment. This procedure will require that no amendment affecting all the provinces can be made without their consent and that of the Government of Canada. If a formula acceptable to all provinces and the federal government is agreed upon within two years, it will take effect.
The resolution provides for certain means to ensure that Canada will not be faced forever with the requirement of
unanimity before constitutional change can be made.
If the provinces and the federal government fail, yet again, to agree unanimously on a formula, but no other proposal has sufficient provincial support, then a formula similar in principle to the Victoria formula of 1971 will come into effect. But if eight or more provinces, representing at least 80 per cent of the total population of all the provinces, agree within two years after patriation on a proposal for a different amending procedure that meets the requirements set out in the resolution, this formula and another similar in principle to the Victoria formula will be put to the people in a referendum. The federal government will also have the opportunity, at that time, to put forward a formula of its own choice, instead of the modified Victoria formula.
As I just mentioned, if there is no consensus among the provinces on a formula, an amending procedure, similar in principle to the Victoria formula, will automatically come into effect two years after patriation. The formula is based on the principle that amendments to certain parts of the constitution should require a consensus in each region of the country, as well as a general consensus across Canada. The Victoria formula required this consensus to be expressed through provincial legislative assemblies, and the House of Commons and…
Senate in Ottawa. The formula in the resolution will, in addition, allow the consensus to be expressed through a national referendum.
In general, the formula would require that amendments to the constitution be approved by Parliament and either the
legislative assemblies or by a majority of voters in a majority of the provinces, including every province that has or has had a population of at least 25 per cent of the population of Canada; at least two of the four Atlantic provinces with combined populations of at least 50 per cent of the population of all the Atlantic provinces-
Mr. McGrath: Goodbye P.E.I
Mr. Chrétien: -at least two of the four western provinces with combined populations of at least 50 per cent of all the western provinces.
An hon. Member: Hail P.E.I.
Mr. Chrétien: The Leader of the Opposition has taken the view that only a provincial government can speak for the people of a province. We take the view that the people can speak for themselves.
Some hon. Members: Hear, hear!
Mr. Chrétien: We do not believe that it is contrary to the spirit of federalism-
Mr. Clark: To wipe out the provinces.
Mr. Chrétien: -to allow the people to express their views on constitutional amendments.
Before the Leader of the Opposition talks too much about how this government is overturning the principle of federalism, I thought that he should be reminded that in two other federal states, Australia and Switzerland, constitutional amendments are valid when passed in a referendum by a majority of the people in a majority of states. Despite this practice, neither of these countries can in any way be described as being unitary states.
Mr. Andre: They also have elected Senates.
Mr. Chrétien: If the provincial governments disagree with the modified Victoria formula, I have already explained that they will be able to propose something different. And the people will then decide.
What would really constitute passing over the heads of the provincial governments would be some sort of constitutional assembly as proposed by the Leader of the Opposition, where none of the provincial governments would have any say at all; it would be the members of the assembly but not the government. The decision to call a national referendum-
Mr. Clark: Where do the governments come from?
Mr. Chrétien: -on a constitutional amendment would rest
with the Canadian Parliament.
In 1947 the first Bill of Rights in Canada was passed in the province of Saskatchewan by the government headed by a
distinguished former member of this House, Hon. T. C. Douglas.
Some hon. Members: Hear, hear!
Mr. Chrétien: In 1960-
Mr. Clark: There is the deal.
Mr. Chrétien: Wait a minute; your turn is coming.
In 1960 Parliament passed the Canadian Bill of Rights. When that bill was introduced, a good friend of all of us, the Right Hon. John Diefenbaker stated:
An hon. Member: Put his name on it.
Some hon. Members: Hear, hear!
Mr. Chrétien: He stated, and I quote:
This measure that I introduce is the first step on the part of Canada to carry out the acceptance either of the International Declaration of Human Rights or of the principles that actuated those who produced that noble document.
Today, Madam Speaker, we have the opportunity to complete the work of Mr. Diefenbaker and Mr. Douglas by
providing Canadians with constitutional guarantees of their fundamental freedoms and liberties so that no government will ever be able to take them away.
Some hon. Members: Hear, hear!
Mr. Clark: Except by referendum.
Mr. Chrétien: It is our duty to carry forward the work of two great western Canadians, John Diefenbaker and Tommy Douglas.
John Diefenbaker understood that western Canada has been built by immigrants from al] over the world who fled oppression to seek freedom and opportunity in Canada.
Some hon. Members: Hear, hear!
Madam Speaker: Order, please. I have to remind those present in the galleries that they are not allowed to participate in the debate, even by applauding.
Mr. Chrétien: Madam Speaker, I am pleased to see that the gallery agrees with John Diefenbaker!
Mr. Nielsen: They sure were not applauding you.
Mr. Chrétien: The ethnic communities in Canada above all others understand the importance of an enshrined charter of rights and freedoms.
I appeal to the Leader of the Opposition, as a western Canadian, not to forsake the legacy of John Diefenbaker;
I appeal to him not to oppose a measure which is of such importance to Canadians of so many different cultural backgrounds. As a westerner and as the leader of a party which has…
always upheld the rights of the individual over the state, he should not oppose a measure containing a charter of rights.
Some have told us that provincial legislatures are better able than the courts to protect the rights and freedoms of Canadians. If rights and freedoms were to be dependent upon the governments of individual provinces, there would be no such thing as rights and freedoms common to all Canadians.
I believe that Canadians, wherever they live in Canada, should have common rights and freedoms. I am supported in this view by the special joint committees of the Senate and the House of Commons which, both in 1972 and in 1978, recommended the entrenchment in the constitution of a charter of rights. And it was once again proposed in Halifax in October 1979 by the federal government at a meeting of the continuing committee of ministers on the constitution. I remind the House that this proposal was made in Halifax by the government led by the Leader of the Opposition.
The case for a charter of rights was made eloquently by the constitutional committee of the Canadian Bar Association, and I quote:
The symbolic and educational importance of proclaiming the rights of the individual as being beyond the power of a transient legislative majority can scarcely be exaggerated. A clear statement in the constitution of the fundamental values all Canadians share would, we think, have an important unifying effect. It would inculcate in all citizens, young and old, a consciousness of the importance of civil liberties and an authoritative expression of the particular rights and liberties our society considers fundamental. To the politician and the public servant, it would provide an authoritative standard for scrutinizing not
only statutes but delegated legislation.
Beyond its symbolic and educational functions, a bill of rights can be an effective instrument of enforcement, particularly of fundamental political and legal rights. The courts can declare laws that violate constitutional rights invalid. In the absence of guaranteed rights, a transient majority in Parliament or a legislature can do incalculable harm to a minority or an individual. Unlike existing human rights legislation, which can always be abrogated or modified by statute, it would constrain future legislatures and governments from acting in violation of human rights. This protection is all the more important in our modern administrative state where there is such a vast quantity of delegated legislation that is not subjected to the type of questioning involved in parliamentary
It is true that there are now non-constitutional bills of rights at the federal and provincial levels. But these are mere legislative directions to the courts as to how legislation is to be interpreted. Constitutional entrenchment should encourage courts to take a stronger stand to protect fundamental rights.
The resolution before the House provides for a Canadian charter of rights and freedoms binding upon Parliament, all provincial legislatures and all governments. The rights and freedoms in the charter include: freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of information; freedom of peaceful assembly and of association; the right to vote and to stand for office, and the right to elections at least once every five years.
Sections 7 to 14 of the charter set out basic legal rights of Canadians. Some of these rights derive from the Canadian Bill of Rights and some are new. Of the latter, some derive from the International Covenant on Civil and Political Rights. I might remind the House that before adhering to the covenant, the federal government received the consent of all provinces. If provincial governments agreed to be bound by the International Covenant on Civil and Political Rights, they should not object to being bound by a Canadian charter of rights and freedoms.
The legal rights include the rights to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice; the right to be secure against search or seizure except on grounds and in accordance with procedures established by law.
There is the right not to be arbitrarily detained or imprisoned except on grounds and in accordance with procedures established by law; the right on arrest or detention to be informed promptly of the reasons, to retain and instruct counsel without delay, the right to obtain the remedy of habeas corpus.
Section 11 provides certain fundamental protections to those charged with an offence.
The protections include the right to be informed promptly of the charge; to be tried within a reasonable time; to be presumed innocent until proven guilty in a fair and public trial, and to be granted bail where appropriate. The rights also include protection against being found guilty if an act wasn’t an offence when it occurred and against being tried twice for the same offence. In addition, if punishment is changed between the time the act occurs and sentencing, only the lesser punishment may be imposed.
In addition, the charter enshrines the right not to be subjected to any cruel or unusual punishment, the right of witnesses to protection against self-incrimination, and the right to assistance of an interpreter in court proceedings.
Non-discrimination rights include the right to equality before the law and to equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex. These rights will come into effect within three years after patriation. The reason for the delay is to give Parliament and the provincial legislatures time to amend statutes which presently contravene the protections against discrimination.
As a federal government, we understand that women have for years been subject to discrimination because of sex. Minority groups have been subject to discrimination because of race, religion, colour or ethnic origin. This type of discrimination must be wiped out in our country.
As Minister of Justice, I want to assure this House that the government will act immediately to see to it that our laws comply with the non-discrimination provisions of the charter of rights. For this, we will need the collaboration of all members. As a government, we now consider ourselves morally bound by the non-discrimination provisions of the charter even though it will be three years before we are legally bound.
I would like to turn now to two very important parts of the Canadian charter of rights and freedoms. First, I want to speak about mobility rights. We believe that certain rights are fundamental to the concept of Canadian citizenship; these rights must be guaranteed by the constitution and be applicable everywhere in Canada. I have spoken already of fundamental freedoms, democratic rights and legal rights.
Our conception of Canada is one where citizens as a matter of right should be free to take up residence and to pursue a livelihood anywhere in Canada without discrimination based on the previous province of residence. In other words, no Canadian should be prevented from seeking a job anywhere in Canada merely on the grounds that he or she comes from another province. This right which is inherent in Canadian citizenship will be enshrined in the charter and will be binding on all governments.
This does not mean that provinces cannot impose their normal laws on people who come or move to their province. It simply means that they cannot single out certain Canadians for harsher treatment just because they come from other parts of the country. In other words, there will be one Canadian citizenship not ten provincial citizenships.
The charter of rights and freedoms will also give all Canadians the right to send their children to school in their own official language where there are sufficient numbers of the minority language group to justify a school. English-speaking Canadians who move to Quebec will be entitled to have their children educated in English, and French-speaking Canadians will at last be entitled to have their children educated in French wherever they live in Canada.
By guaranteeing minority language education rights in the constitution, we are enshrining what provincial premiers agreed to at St. Andrews in 1977 and in Montreal in 1978, namely, and I quote:
Each child of the French-speaking or English-speaking minority is entitled to an education in his or her language in the primary or secondary schools in each province wherever numbers warrant.
Some have said that the constitution should not protect the rights of English-speaking parents to send their children to school in English in Quebec or the rights of French-speaking parents to send their children to school in French outside of Quebec. We have been told by some to forget the lessons of history and to depend upon provincial legislatures to protect minority language education rights.
Mr. Speaker, this government holds the view that such rights must be protected in the constitution because they are fundamental to what Canada is all about. When minority language education rights are taken away, the right to take up a job in any part of Canada is seriously impaired. English speaking Canadians, if they move to Quebec, want to have the right to send their children to school in their own language. Indeed Mr. Lévesque and Quebec government members pat themselves on the back for doing so, therefore I do not see why that could not be enshrined and confirmed in the constitution.
Similarly, French-speaking Canadians do not want to move to other parts of Canada unless they can send their children to school in their own language. The only way to achieve this is to guarantee such rights in the constitution. In effect, without a guarantee of minority language education rights, there can be no full mobility rights.
Members on all sides of this House representing Canadians everywhere made a commitment to the people of Quebec during the referendum campaign that a new constitution would guarantee the fundamental rights of French-speaking Canadians outside of Quebec and English-speaking Canadians in Quebec. The guarantee of minority language education rights everywhere in Canada meets this commitment. It also marks our maturity as a nation because it must never be forgotten that a civilization is judged by how it treats its minorities.
For the first time in Canadian history, the education rights of official language minorities al] across the country will be guaranteed. I would appeal particularly to the Federation of Francophones Outside Quebec to put pressure on Premier Lévesque to drop his opposition to a measure which goes further than anything in our history to protect the rights of French language minorities everywhere in Canada. It was because of the opposition of the government of Quebec to the Victoria charter of 1971 that we lost the opportunity to achieve institutional bilingualism in many provinces. Today I would strongly urge the people of Quebec to put enormous pressure on the government of Quebec not to oppose this chance of a lifetime to assure education rights for French Canadians anywhere in Canada.
And I would urge just as strongly support for the charter of rights by those who oppose the provisions of Bill 101 which restricts the rights of English-speaking Canadians who move to Quebec to send their children to an English school.
There are other language rights which are now part of the constitution which apply to the use of either English or French in the legislatures, the courts and in the statutes and records of the provinces of Quebec and Manitoba. These will continue to be protected by existing constitutional provisions.
The constitution provides rights for the use of the English or French language in Parliament and in federal courts. These rights will be codified in the Canadian charter of rights and freedoms.
There are other language rights which are now found in the Official Languages Act. These will be enshrined in the constitution. English and French will be entrenched as the official languages of Canada. Also entrenched is the right of the public to communicate with and receive services from any head or central office of an institution of the Parliament or…
Government of Canada in either English or French, and, in areas where numbers warrant, from any other office of such institutions.
These rights will now be part of the charter and will be binding on the Government of Canada and will not be able to be changed except by an amendment to the constitution.
I appeal to the people of Quebec to pressure their provincial government not to oppose a measure which implements the dreams and aspirations of generations of French Canadians who, believing that all of Canada is their country, have wanted to see their rights enshrined in the Constitution of Canada.
I would like now to turn to another part of the resolution and speak about equalization. The practice of using federal revenues to redistribute wealth to the less advantaged provinces of this country is well accepted. Since 1957, unconditional transfers known as equalization payments have been made by the federal government to enable every province to provide a reasonable level of public services, without having to impose an unreasonable tox burden on its residents. This practice has become so well established that it has now emerged as a fundamental “principle” of Canadian federalism.
Sharing of the wealth has become a fundamental right of Canadians and that is why the resolution entrenches the principle of equalization and commits both orders of government of promoting equal opportunities for the well-being of Canadians; furthering economic development to reduce disparity in opportunities and, specifically, providing essential public services of reasonable quality to all Canadians.
By entrenching this principle in the constitution, we are enshrining the obligation of sharing which has been fundamental to the Canadian experience.
Before I conclude, I want to speak about one criticism that has been voiced outside this House in the last few days. Some have suggested that the government has no right, without the consent of the provinces, to introduce a resolution asking the Parliament of Great Britain to amend and to patriate the Canadian constitution.
I will be prepared in committee to deal with this matter at some length. However, I want to state here today as Minister of Justice that there is no legal impediment to the Parliament of Canada’s asking the Parliament of the United Kingdom to amend the British North America Act.
In the past, amendments to the British North America Act have been made by Great Britain following a joint resolution of the Senate and the House of Commons. In 11 cases, such resolutions have been adopted without consultation with, or the consent of some or all of the provinces; in only six cases have they been made after consultation with the provinces and with the consent of all or some of the provinces.
Past practice shows that there is no hard or fast rule concerning whether or how the federal government should consult with and obtain the consent of the provinces before presenting a resolution seeking to amend the British North America Act. Theoretically, the legal sovereignty of the Parliament of the United Kingdom is such that it can amend the British North America Act with or without the consent of Canada. But precedent tells us that the Parliament of the United Kingdom will amend the BNA Act only at the request of the Parliament of Canada and will do so despite any objections from any particular province or provinces.
On the subjects contained in this resolution, the Government of Canada has consulted for years with the provinces. We failed, yet again, to reach agreement, and therefore the government decided to proceed on its own in the spirit of the resolution passed unanimously by this House on May 9. Whatever the merits of unanimous agreement as a condition for change, the kind of constitutional deadlock we have had in this country for the last 53 years cannot be allowed to continue forever. However, the amending formula which we propose will ensure that in future there cannot be any unilateral action by the federal government. In other words, the changes we are proposing actually reduce the future powers of Parliament with respect to the amendment of the constitution.
In concluding, I want to express my hope and desire that members of Parliament will deal fully and yet expeditiously with this historic measure. I hope that this debate will rise above political partisanship. I hope all members will heed the words of Premier Davis who told us to divorce what is best for the country-
-from partisan feelings and from personalities. This nation will not be shaped and the challenges we face will not be met, if narrow partisanship is to determine where each and every one of us stand on the large and fundamental issues touching upon the very structure and reality of Canada.
Canada is a country of minorities. It is made up of people from many varied backgrounds who came here seeking freedom and opportunity. The changes proposed to the constitution will guarantee freedoms for all individuals and will help protect the rights of minorities. Canada is a sovereign and a dynamic country. It must have the means to renew its own constitution by Canadian means and not by resorting to the parliament of another sovereign state. The amending procedures we propose would provide those means.
I think this is a very important occasion. Some people question our right in this regard and ask why we are doing this. I spent much of last year discussing this matter. I made a lot of speeches in Quebec and in many places right across Canada. The Leader of the Opposition was in attendance when I made one of those speeches in Quebec. It was recorded, and in it I said in Quebec that I had a mandate from my caucus and from my cabinet to state that we will change Canada;Canada will have complete control of its own economy.
Some hon. Members: Oh, oh!
Mr. Chrétien: We will have a Canadian constitution. I told the people of Quebec that we will have our own Canadian constitution.
An hon. Member: He is the best friend René Lévesque ever had.
Some hon. Members: Oh, oh!
Mr. Chrétien: As I was saying, we will have a Canadian constitution in which both official languages will be protected. Also, the Constitution of Canada will protect the fundamental rights of Canadians as well as the rights of Francophones outside Quebec to be educated in French finally, which was not the case in the past. I was also saying that we would grant the same right to English-speaking Quebeckers. and this concept
would be entrenched in the constitution, this concept of sharing and of opportunity for all Canadians which bas formed the basis and the strength of our country.
So that is the procedure we have followed. This is not an end, it is a beginning. For 53 years, Madam Speaker, we have tried to bargain the patriation of the constitution against something else, and that bas never worked. Since 1921, there have been many constitutional conferences. Starting today, change will become possible. I spent three months with the ministers of the different governments and I can say today that if under the present constitution we could have made some constitutional amendments during the summer, we could easily have arrived at four or five agreements.
But as usual, at the last minute, someone tried to bargain to try to get more, just like in Victoria, just like in 1939 and at other times. But by having in Canada the means to bring about changes as they may become necessary, then, as I said in my speech and as the Right Hon. Prime Minister promised in his address to the nation last Thursday, we are committed to continue the renewal of our constitution, to review the division of power, to change Canadian institutions. We have to get started, and the only way to succeed is by patriating the constitution to Canada immediately so that we can amend it in Canada, and that, Madam Speaker, is exactly what we are doing today for the benefit of all Canadians.
Some hon. Members: Hear, hear!
Mr. Clark: I do not think you, Madam Speaker, were able to hear me, but members opposite did and they knew I was rising on a point of order. I do so simply because I would not want the Minister of Justice (Mr. Chrétien) to leave what I am sure was an inadvertently misleading statement on the record of the House.
He spoke about the language rights of Francophones outside Quebec. He said French Canadians will have the right to speak French anywhere in Canada. Yes, that is what he said, but he never qualified this right, even though all is well qualified here in the resolution. I would like to give the Minister of Justice, through a point of order, the opportunity to correct the record in order for him to avoid being in the position of manipulating public opinion or saying something which is not in the statute.
Mr. Chrétien: Madam Speaker, if the Right Hon. Leader of the Opposition thinks that I do not go far enough in these proposals, if he wishes all these rights to be written in the constitution without any restriction, we will gladly accept an amendment moved by the opposition in this matter.
ESTABLISHMENT OF SPECIAL JOINT COMMITTEE OF THE
SENATE AND HOUSE OF COMMONS
The House resumed consideration of the motion of Mr. Chrétien:
That a Special Joint Committee of the Senate and of the House of Commons be appointed to consider and report upon the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the government on October 2, 1980, and to recommend in their report whether or not such an Address, with such amendments as the committee considers necessary. should be presented by both Houses of Parliament to Her Majesty the Queen:
That 15 members of the House of Commons to be designated n later than three sitting days after the adoption of that, motion be members on the part of this House of the Special Joint Committee,
That the committee have power to appoint from among its members such subcommittees as may be deemed advisable and necessary and to delegate to such subcommittees all or any of their powers except the power to report directly to the House;
That the committee have power to sit during sittings and adjournments of the House of Commons:
That the committee have power to send for persons, papers and records, and to examine witnesses and to print such papers and evidence from day to day as may be ordered by the committee;
That the committee submit their report not later than December 9, 1980; That the quorum of the committee be 12 members, whenever a vote, resolution or other decision is taken, so long as both Houses are represented and that the joint chairmen be authorized to hold meetings, to receive evidence and authorize the printing thereof. when six members are present so long as both Houses are represented; and
That a message be sent to the Senate requesting that House to unite with this House for the above purpose, and to select, if the Senate deems il to be advisable, members to act on the proposed Special Joint Committee.
Right Hon. Joe Clark (Leader of the Opposition): Madam Speaker, perhaps I might begin by replying to the last comment made by the Minister of Justice (Mr. Chrétien). What I would like is to have the minister speak the truth about the measure he has presented. What i tried to do in a gentlemanly fashion on the floor of the House of Commons was to indicate that three or four times during his reference to the rights of Francophones to speak French outside Quebec he forgot the qualification in the resolution proposed here. I would not want him to misrepresent the position of his government in any way to the people of Quebec who might be listening or, indeed, to anyone else who might be concerned about the rights of Francophones to speak their language outside the province of Quebec. I wanted to raise that matter simply because I was sure the error by the minister was inadvertent. I rather regret that he did not take my point of order in that spirit.
I must deal at the outset as we begin to discuss this resolution with one or two matters of procedure. First I must express my regret at the absence of the government House leader, although I am not surprised by the absence from this debate of the Minister of Transport (Mr. Pepin). I think that is well understood by all members on this side of the House. He was here for part of the debate but he has now left. The minister responsible for government advertising or propaganda has said that the Minister of Transport does not want to listen to me. That is the trouble with this government; it does not want to listen to Parliament. Members of that government would be better served if they paid more attention to what members of the opposition have to say.
Some hon. Members: Hear, hear!
Mr. Clark: The point I want to raise is that in relation to a matter of such importance to the government there has been remarkably little consultation with either the members of the House of Commons or, indeed, parliaments, governments and legislatures of the provinces. It is my understanding that the premiers did not receive copies of this resolution until well after it had been discussed in public by the Prime Minister (Mr. Trudeau). Certainly, as was revealed today, no steps were taken by the government to ensure that members of the House of Commons had delivered to them by the government, as I believe it is the government’s responsibility to do, copies of this resolution that members of Parliament are being asked to consider. It is said that a bulk number was left with my colleague, the House leader of the opposition.
Mr. Baker (Nepean-Carleton): That is not so.
Mr. Clark: He tells me that is not the case. The obligation clearly rests upon the Government of Canada, if it considers this bill to be so important, to ensure that the House of Commons which is to debate this bill has a copy to read before the debate begins.
Some hon. Members: Hear, hear!
Mr. Clark: I think it is important that the House and the country also understand some of the implications of the motion which has been moved by the Minister of Justice and the implications of the proposed resolution. If one read the press and relied simply upon that, one might be led to believe that we are to follow a process here which is similar to the process followed for the passage of a bill. According to newspaper reports, that would be that we would have a debate in the House followed by committee study and amendment, followed by final approval in the House. That is not the case with the measure put before us. The government has chosen another route or another method to have this matter debated before the House of Commons. We do not have a resolution before us. We have a motion referring the subject matter of the proposed resolution of address to a special joint committee of this House and the other place.
When we debate this reference-and I make this clear because it is very important to people who want to see a full debate in Parliament of constitutional matters-we cannot, under our rules, propose amendments to the proposed resolution itself. We can only move technical amendments to the motion of referral. I serve notice on the government that we may well want to move some technical amendments because there are some aspects of the notice of motion moved by the Minister of Justice today which cause grave concern to us. One of them, of course, is the time limit placed upon committee study by this House of Commons and by the joint committee of the proposed resolution. We are limited to two months, another deadline imposed by this government on constitutional processes, for whatever purposes.
Another matter of very real concern to us has to do with the fact that according to information exchanged in the briefings the other night, it is not the intention of the government to allow this committee to travel. In other words, a constitution to serve the whole country will be decided sitting in isolation in Ottawa. A constitution to serve the centuries will be decided and discussed by Parliament in a time limit of two months.
Those are serious deficiencies, we believe, in the government notice of motion. They raise serious questions as to the sincerity of this government in having in fact a full discussion, a full debate, and a full opportunity for Parliament to consider this matter.
Then there is the question of the quorum. I may well be corrected by others more expert in parliamentary procedure. I have no doubt that the hon. member for Winnipeg North Centre (Mr. Knowles) can find in his experience some exam-…
-ple of some place where this has been done before. He has never failed to do that to this point.
Mr. Broadbent: Even when he has made it up.
Mr. Clark: “Even when he has made it up”, I am told by one of his seatmates.
We have here a committee of 25. Undoubtedly 13 or 14 Liberals will be sitting, always a majority. We have in the notice of motion the idea that a quorum will be composed of any 12 members. Generally, opposition parties are respected and protected by saying that a quorum will require not simply a certain number of people but the representation of more than one party. That is not contained in this amendment here.
What is proposed in this amendment is that the Parliament of Canada, the House of Commons and the Senate of Canada, sitting in Ottawa, forbidden to travel, and required to conduct our work in only two months, must carry out that work in a period and under a quorum that can be decided by members of one party alone. The quorum can be decided by Liberals alone. Members of this party can be excluded from the decision. Members of the New Democratic Party can be excluded from the decision. What we have here is a provision that a meeting could be called and a decision could be taken with a quorum composed simply of members of the government party in the House of Commons. That again may simply have been an oversight, and it may well be that there will be an attempt made by representatives of the government to correct it. We hope that will be the case but, if not, we may have amendments to suggest on this or, indeed, on other matters which relate to the resolution here and to the notice of motion.
I have some other points to make. When the proposed address is before the committee, the committee cannot amend it. It can only prepare a report describing the amendments it thinks should be made. That is what we are dealing with here. If there is a debate on a motion of concurrence in that report, we in this House of Commons still cannot move amendments to the proposed resolution. We cannot even move amendments to the report of the committee. We can only pass amendments to the concurrence motion, and what would the effect of that be? The only power Parliament would have would be to refer the matter back for another committee study. This matter has been drawn up by the government, presumably with intent, in such a way that it is not possible for Parliament to amend the substance of the matter in any way. That again may well have been an error. If it is an error, we want it to be corrected, but
if it is practice and if it is deliberate, we believe that is a bad way to start discussion of a constitutional process in this country.
Some hon. Members: Hear, hear!
Mr. Clark: Again, concurrence by the House in the report of the committee would not constitute adoption by the House of the resolution of address. All we will have done is agree that a resolution be presented, perhaps with the proviso that certain amendments should be made.
The significant debate will come when the resolution itself is brought directly before the House sometime after the committee has made its report. Only when that resolution is presented will we know if the government has taken any account at all of the views that are expressed by members of this House of Commons in the committee proceeding that the Minister of Justice wants us to start now. Only during the debate on that second resolution will we have the chance to propose amendments to the resolution instead of an indirect motion of reference. Only when that resolution has been passed will the House of Commons have adopted a resolution for presentation to Her Majesty. In the meantime, we do not know if there is to be a concurrence debate after the committee presents its report. There has been no indication of that. We have not been told when the resolution that counts-and this one does not count in terms of being able to constitute an address to Westminster-will be brought into this House of Commons.
We do not know what deadline the government has for the passage of the motion that counts. All we have is this preliminary round, but we do not know where it leads, and I believe that if the Prime Minister and his colleagues are sincere about involving Parliament in this debate, Parliament and the public should be told when the next shoe drops, what the next step is, and what is going to happen after this process. If the House and the public are to participate in an orderly debate, the government should tell us a little bit more about the process we are engaged in and not allow the impression to persist that the secondary question we are debating now is in fact the main
The Minister of Justice talked about an historic moment. I suppose we all like to talk about historic moments and pretend that the world will change suddenly as the seas part. In fact, history happens much more slowly, and it usually takes its shape from an accumulation of actions, decisions, and events. However, there are actions and there are events which can create a climate for good or a climate for ill which will affect what a country or, indeed, what a parliament does for some time to come. To draw two contentious examples from his own government’s past, I believe that the passage of the Official Languages Act created a positive climate which made it easier for Francophones to feel at home across Canada.
By contrast, this Prime Minister’s War Measures Act created a climate of fear and apprehension which will reach through history.
An hon. Member: Where were you on the vote, Joe?
Mr. Clark: In both cases the toking of the action-its actual toking-was more important than the details of the action. What counted was the motive; to codify rights in one case, and to abuse rights in another case.
We are debating today another action which, if taken, will live in Canadian history as the symbol of the motive of this Parliament on a fundamental question. What is at issue here is more than a law, more even than a constitution. This resolution…
contains a power which could destroy the federal system in Canada.
An hon. Member: Nonsense!
Some hon. Members: Hear, hear!
Mr. Clark: By destroying the federal system in Canada it could destroy this country. I regret that the Prime Minister smiles at that.
An hon. Member: I did too.
Mr. Clark: Let me refer the Solicitor General (Mr. Kaplan),who is one member of that cabinet who should know how to read the law, to section 42, because section 42 denies the essence of federalism in this country, and by denying the essence of federalism in this country, you deny the essence of Canada.
Sone hon. Members: Hear, hear!
Mr. Clark: This country of ours was created as a partnership of governments and legislatures. The constitution defines the relation between different levels of government, and our practice has ensured that amendments affecting both levels of government must be approved by both levels. Section 42 of this proposal breaks that practice, breaks that partnership.
The purpose of the resolution is to break the fundamental balance which has been at the heart of our federal system ever since the Canadian nation was created. Canada is a federation because the two levels of government share powers which they may exercise exclusively.
The extent of these powers has changed over the years, and the perfect equilibrium between these two levels of government will remain an issue for debate for many years to come.
However, the existence of this equilibrium which is at the core of the Canadian system, had always been an accepted fact, at least until this resolution was introduced today.
On the basis of this resolution, the central government would have the authority to deprive unilaterally the provinces of their powers. And because this authority would not be limited, this central government could, if it chose to, deprive the provinces of all their powers and for all times.
Under this resolution, the central government could destroy what makes Canada a federation. And if it did, I am afraid it would signal the end of Canada as a country. As a matter of fact, because of the mere mention of the possible creation of this authority, as stated in the resolution, we are very much in doubt about the ability of this government to understand, promote and unite the diverse factors which make up our federal system.
There are several specific issues in this resolution. Some of them, of course, deserve approval, such as the act of bringing our constitution home or the decision finally to enshrine the principle of equalization in the constitution of Canada. Other proposals deserve rejection; others require continuing debate, including a frank discussion of the best way to guarantee rights. I believe that basic rights must prevail over ordinary law, but I have been witnessing to the practical problems of relying too exclusively on law as an instrument of social change. For that reason, I believe we would make faster progress to more bilingualism in this country if there were an opting in provision for language rights. I say in passing-I am sure the Prime Minister knows it-that that would also allow such provinces as choose to opt into language rights which reach beyond the schools to affect provincial courts, legislatures and other institutions.
Mr. Trudeau: There is Bill C-60.
Mr. Clark: The Prime Minister speaks of Bill C-60, and I will be reminding him of that and of its treatment in the courts in a moment.
I do not want this debate to become personal, but I was concerned about the personal references made by the Minister of Justice to myself, particularly in relation to my attitude to French language rights in this country. It is not a matter about which I boast, but I think the Minister of Justice would find it difficult to discover anyone else in this House who has worked as hard, or indeed risked as much as I have, to promote French language rights in this country.
Some hon. Members: Hear, hear!
Mr. Chrétien: Madam Speaker, I wish to rise on a point of order. I am sorry but I have never referred at all to the attitude of the hon. member. I have always congratulated him on his attitude vis-à-vis the French fact in Canada, and he knows that. I have not made any reference at all in this House during my speech to this, and I do not know how he can make such a comment. I want to correct the record right away because I told him, both personally and publicly, especially in my own riding during the referendum campaign, how proud I have been for a long time of his attitude on that matter.
Sone hon. Members: Hear, hear!
Mr. Clark: I accept the statement made by the Minister of Justice. Later I will refer to the text of the remarks he uttered in the House. But I accept the sincerity of what he said and I know, having heard him make those remarks in the past, how startling it would be if he said what I thought I had heard him say. But I accept his position now that he did not say that or if he did, he did not intend to say those words in his remarks.
I may now turn to the question of the late Right Hon. Mr. Diefenbaker and his bill of rights. I think he would have, at the least, been amused to have heard himself celebrated so by people who condemned him when he was here on the floor of the House of Commons. One of my colleagues behind me makes the point that during those remarks by the Minister of Justice there was an earth tremor in the region of Saskatoon in the immediate vicinity of the Diefenbaker Centre.
Some hon. Members: Oh, oh!
Mr. Clark: I found it interesting, on the question of rights, that the Minister of Justice, makes the case that we should not trust the courts to protect the rights. I gather he has now corrected the statement attributed to him that he finds the Supreme Court unreliable. My point is that after having said that he cannot trust the courts-having said that he would not want the rights to be-
Mr. Trudeau: Do not put words in his mouth.
Mr. Clark: Weil, we shall sec. The point I want to make is that the greatest menace to rights is that section 42 of this provision allows rights to be removed by referendum, and any day when there is a fever in this land against a particular group of people, against a particular group of rights, this government, by the power it seeks in section 42, could invoke that power to have a national referendum, which would mean the end of those rights. Rights written into the constitution by referendum can be written out of the constitution by referendum.
Some hon. Members: Hear, hear!
Some hon. Members: Right on.
Mr. Clark: That is a reality that this government will have to face.
What we have here is something quite different from what this government normally introduces. Normally it introduces legislation that looks as if it contained a great deal more than it does. This legislation looks a great deal simpler than it is in fact. The government, and the Minister of Justice most recently, have tried to wrap its initiative in the Canadian flag of patriotism. What is in that flag of patriotism and what is in this bill is a Trojan horse, a Trojan horse which is defended on the ground of bringing home our constitution, enshrining equalization, guaranteeing rights, and doing all of those good things that we want to have done. But inside, hidden away, written into the detail of this legislation is a range of other changes, a series of other proposals which could not only fundamentally change the nature of this country but could, in fact, as I intend to indicate during this debate, bring an end to this country, Canada.
Some hon. Members: Hear, hear!
Mr. Clark: At least one of those proposals-the Prime Minister spoke a moment ago of Bill C-60-is very similar to an action which ten months ago the Supreme Court of Canada described as being illegal.
Without detaining the House of Commons too long at this stage, I think all is well to identify some of the changes that are tucked away in this resolution. Section 44 would change unilaterally the central Canadian institution of Parliament. That section dramatically reduces the power of the Senate in constitutional matters. I make the point that the Senate was established to protect regional and provincial interests, but its powers are dramatically limited and dramatically changed by this proposed section 44. Madam Speaker will recall, as the House does that this government tried before to change the Senate unilaterally in the old Bill C-60. That attempt was ruled ultra vires by the Supreme Court of Canada as recently as ten months ago, in December of 1979.
Another basic change is introduced by section 51. In that section paragraph 91.1 of the British North America Act is deleted. Paragraph 91.1 was adopted in 1949. It was meant to give to Parliament the power to amend its so-called internal constitution. But in doing so the government of the time was very careful to protect provincial rights, namely, to protect the division of powers in the federation, a division the Minister of Justice said goes untouched in this bill. In deleting the protection for provincial rights, that is, the protection of provincial jurisdictions, section 51 is in fact making a substantive change in the Constitution of Canada. By my calculation, protection for those aspects of jurisdiction that have been exclusively provincial is put in jeopardy.
Again this resolution establishes a double standard for amendment. We have in the resolution that limited list of amendments which the Prime Minister wants; his personal package of change. Even though some of those changes are in a provincial field, he proposes to have them adopted without any reference to any province. Yet, at the same time the resolution proposes that any other changes which any other prime minister or any other provincial government might seek must be approved either by provinces or by referenda. If the Prime Minister believes so strongly in his method of amendment, in the method of amendment, he proposes, why does he not apply that method to his personal package? Why should there be one standard for amendments he wants and a different standard for any other amendments that any other Canadian would want?
Some hon. Members: Hear, hear!
Mr. Clark: I must make note of the irony that what permits the Prime Minister to claim the ability to apply to his package a weaker standard than would apply to later amendments is precisely the fact that he is relying on Britain to accept his will more easily than Canada.
An hon. Member: Colonialism.
Mr. Clark: The document he proposes to amend is the British North America Act, a British statute. The document which subsequently would be amended would be a Canadian statute. He defends this package presented today involving patriation as being an end to colonial status. Then he uses that very colonial status he deplores to seek approval of his personal package of amendments.
The Prime Minister is the last of the great Canadian colonials. He does not trust Canada to approve his amendments, so he wants to try to sneak them past Westminster just before he changes the rules. We know that the Supreme Court…
of Canada ten months ago found that the designs of this government on the Senate were ultra vires and illegal. It is entirely likely that other aspects of this proposal are illegal. We were told by the Minister of Justice that he does not think so. He thinks they are fine. We will see what the Supreme Court thinks. The Minister of Justice thought Bill C-60 was fine too, but the Supreme Court did not agree. Undoubtedly the government will try to draw a distinction between constitutional law and constitutional convention. They may reach into some dusty corners of constitutional precedent somewhere in the Commonwealth, somewhere in the world, and find a precedent which upholds their doing what they are doing so that they can say it is legal.
Mr. Crosbie: Zambia.
Mr. Clark: As my colleague said, they might look to Zambia. They might look to Rhodesia.
Mr. Crosbie: Or Uganda.
Mr. Clark: They will reach as far as they can to find some precedent which they think will defend what they are doing. I do not want to join the Minister of Justice and the Prime Minister in prejudging the decision of the courts, but it may be that they will find that what they are proposing to do is legal to some Philadelphia lawyer. It may be that it is strictly legal, but there is no question that what they are proposing to do here in a way that would destroy the Canadian federation, is wrong.
An hon. Member: Dead wrong.
Some hon. Members: Hear, hear!
Mr. Clark: The obligation upon Parliament at this stage in the debate is to ensure that the basic facts in this proposal are understood by the Canadian people because, after all, it is the country of the Canadian people this resolution proposes to change. If I may say so, I believe that obligation is shared by journalists across the country and by others who have influence and, by their influence, who have responsibility to look
beyond the surface of events and to look to the heart of proposals. But the primary obligation is ours in this Parliament because we are Parliament and it is in the Parliament’s name that the government would act.
An attempt was made again today by the Minister of Justice to portray this resolution as the natural next step after constitutional discussions which failed. Well, that is false; that is false.
I had no question as to the sincerity of the Minister of Justice when he was running around the country, indeed when he was running around Quebec speaking in the referendum campaign. But the fact is that the hopes he caused to be raised in his work this summer were dashed once the first ministers came to meet with the Prime Minister under the klieg lights in the Conference Centre down the street. Indeed the suspicion of many of us about the motives of this government on constitutional change were immensely compounded by the language of the document or of the memorandum which I am sure they wish had not been leaked but was leaked. It revealed to the country the manipulative approach to federal-provincial relations, the manipulative approach to public opinion which has been constantly taken by this government consistently.
Just to refresh everyone’s memory, the constitutional discussions this summer dealt with specific changes in the balance between the central government and the provinces. Some of the matters discussed this summer are mentioned in the resolution, such as the reference to equalization, the reference to rights, and the reference to the purpose of patriation. There is no reference at all to other matters discussed this summer.
There is no reference to resource jurisdictions, no reference to communications, and no reference to the amending formula on which all governments this summer, as we understood it, virtually agreed in principle, the so-called Vancouver consensus requiring that amendments be approved by Parliament and at least any seven provinces representing 50 per cent of the Canadian population with, where necessary, the right of a dissenting province to opt out. Instead, in section 42 there is a proposal that has never been seen before, a fatal proposal which would allow a majority government that controls Parliament to use a direct and binding referendum to bypass entirely
the elected governments of all provinces. By section 46 of this resolution a majority federal government which controlled Parliament would also write the rules of that referendum and would write those rules alone, imposing its majority to be sure that it got its way.
An hon. Member: And the question.
Mr. Clark: And would write the question.
As we know from recent experience, this federal government is prepared to spend millions of advertising dollars-the minister responsible will not tell hon. members on my side how much-on billboards and on television and on other instruments to manipulate the opinion that a referendum would express; and by this resolution such a referendum, if carried by a simple majority in each of the four regions, would be binding, it would have the force of law. It would not be an expression of opinion as the referendum in Quebec was, it would be a tool to change the basic law by which we live as a nation. That is the issue. This resolution would let Ottawa, with a manipulated majority in a referendum, ignore the elected governments and legislatures in all provinces and change any item, any item at all, in the Constitution of Canada.
Mr. Trudeau: With only the people supporting them!
Mr. Clark: With only the people supporting us. I will get to the Prime Minister and the support he has been able to engender among the people of Canada from time to time-I remember particularly ten years ago on the War Measures Act. I will speak a little longer of that because it indicates the dangers which are inherent in a proposal of this kind.
But let me deal with the Minister of Justice for a moment and give him a little lesson in geography and a little lesson on nationalism. He talks about Australia, about Switzerland. Well, I have some news for the Minister of Justice. This is not Australia, this is not Switzerland; this is Canada and we want a constitution for Canada that respects the traditions of Canada.
Some hon. Members: Hear, hear!
Mr. Clark: No doubt we will hear, as debate continues, on this infamous section 42, this section which wipes away the provinces-no doubt we will hear that the power will never be used. Well, if the power will never be used, why is it there? Why is it here in a resolution? Why is it proposed for consideration as part of the law of the land if it is not going to be used? Why do they put it there?
Some may say that the ability to manipulate opinion is exaggerated. Well, I ask the House and the country whether it was exaggerated ten years ago this month when this government terrified the country with reports of an apprehended insurrection, which apparently did not exist? I ask the people and the Parliament of Canada, I ask Canadians who are worried about civil rights-and I believe the Solicitor General is or was one who was worried about civil rights-to imagine the results of a referendum on civil liberties, a referendum conducted by this government during the heat of the James Cross affair. What would have happened to civil liberties then? What guarantees would there have been in the constitution of Canada then? How safe would the people of Canada be if we granted this request of the government-the same government which passed the War Measures Act, which manipulates opinion? How safe would the people of Canada be if those rights could be ruled out by a referendum? How safe indeed?
Indeed, to those who welcome the references in this resolution to language rights and to other rights, remember that those rights, too, would be subject to change by national referendum, and since legislators must contemplate the worst, as well as hope for the best, we must recognize that there could be, on some fundamental issue, some other fever in the country and some other majority prime minister who would say, when challenged, “Just watch me.”
This resolution holds a clear potential for the abuse of particular rights or particular regions or particular minorities. That potential for abuse would alarm civilized legislators in any democracy. But the special threat to Canada, the threat that we must consider, is that this resolution would let a central government, with a manipulated majority in a referendum, end the federal system. It breaks the balance which makes the federal system work. We are not arguing now, as we have before in this House, whether Newfoundland should have the same resource rights as Ontario, or who should control cable television. The question here instead is whether there should be two parties to a constitutional decision, or just one, whether Canada is a partnership, as the Fathers of Confederation and every subsequent Parliament believed, or whether we intend to so change the rules as to destroy the partnership.
How can any province negotiate effectively on any question if it knows that a simple act of Parliament and an appeal to public opinion can to take away its jurisdiction? If such a system had been in place, would the governments of Ontario in the 1880s, 1920s and the 1930s have been able to protect their resources from the arbitrary unilateral actions of the central government of those times? Would Quebec have been able to maintain its culture and identity in those days when their only protection was the provincial government and the British North America Act?
Mr. Trudeau: The people.
Mr. Clark: I heard certain remarks from the Right Hon. Prime Minister (Mr. Trudeau), and I hope he will be interested in contributing personally to the debate, either today or later on. I am told he is very interested in the matter. I will be quite ready to accept his remarks when he is in his seat, and I hope that before the end of the debate he will be there to speak directly, to give his own views on the matter.
But I would like at this point to deal with something the Right Hon. Prime Minister referred to. When he campaigned across Quebec, he often referred to a renewed federalism, because in May, 1980, Quebeckers once more gave a dramatic proof of their faith in this country. This was not only a negative answer to sovereignty-association. Quite the contrary, it was a highly positive gesture that clearly demonstrated a desire for change. In May, 1980, Quebeckers voted for a renewal of our Canadian federation. Quebeckers believed in the message of Claude Ryan, in the Canadian renewal message that I also gave during the referendum campaign. And Quebeckers trusted the Right Hon. Prime Minister.
Mr. Ryan did not change positions, neither did I. We still believe in the principle of federalism, adapted if need be to the reality of today’s Canada and tomorrow’s Canada. Unfortunately, the same cannot be said of the Right Hon. Prime Minister. His concept of federalism is much closer to a unitarian state than a federal state. Because such is the basic meaning of the resolution now before us. Rather than renewing our Canadian federation, the Canadian government may destroy it. What the government is now proposing is not only patriation or Canadianization of our constitution, it proposes at the same time to submit to the Parliament of Westminster several formulas for future constitutional amendments: the rule of unanimity for a transition period, an amending formula roughly the same as the Victoria formula and particularly a third one, the one that I mentioned and which substantially amends our federative system.
We, for our part, are not only in favour of patriating our constitution but we are also convinced it is high time this was done without delay. In addition, we believe that patriation must be accompanied with an amending formula but the…
formula we propose is not the rule of unanimity, it is not the Victoria formula even amended, it is not above all the formula that would give Parliament the power to amend unilaterally the constitution by way of a referendum and, in so doing, over the governments and the legislatures of the provinces.
The formula we propose is the Vancouver formula which was raised at the last first ministers’ conference and on which a consensus would have been possible at that conference if this government had accepted a true dialogue in that regard. Here is our position: patriate with an amending formula based on the principles of the Vancouver formula. But the proposed resolution, as I said, goes a lot further than patriation with an amending formula. It would bring in at the same time in the process substantive changes to the Constitution of Canada.
The question is not whether those changes are valid or not. It is the very fact of asking the Parliament of Westminster to make such substantial changes that is the real problem, the essential problem for us Canadians. The paradox is that the Prime Minister is asking us to break the last colonial tie we have with England and at the same time he uses that colonial tie to change our federal system and bring in fundamental amendments to the constitution. We do not agree on that.
The changes to be made to the constitution must be made in Canada by Canadians and not by the Parliament of Westminster in the course of patriation. We shall make these changes when the constitution has been brought back with an amending formula on which both levels of government will have agreed. We shall decide among ourselves whether, for instance, to entrench in the constitution a charter of rights and what this charter should contain. We shall decide among ourselves whether equalization should be the subject of a constitutional provision.
In other words, we shall bring about ourselves the changes needed to renew the Canadian federation. This is our position: to bring back the constitution with an agreed formula and nothing else.
It is in this optic and for these reasons that we shall discuss this resolution and that we shall use all means at our disposal to amend it and make it acceptable.
The work of amending the Canadian Constitution is for Canadians to do, not for the British to do. The Prime Minister of Canada is asking that a certain, select list of amendments, those that he prefers, should be “snuck” through by the British people and by the British Parliament. I say that the Constitution of Canada should not be amended in substance by the people of Britain, that the Constitution of Canada should be amended in substance by the people of Canada.
Some hon. Members: Hear, hear!
Mr. Clark: That is the issue here before this House of Commons. Every single member of this Parliament would like to have the Canadian Constitution brought home. but we want to have it brought home in a way with which we can work with it, and then we want to go to work with it. We know the inequalities that exist in the country. We know the errors that exist now in the constitutional status quo. I have spoken against it in the province of Quebec during the referendum. I have acted to end, or begin to end, that inequality as prime minister of Canada by recognizing the right of coastal provinces to be treated as equals with the provinces in which the resources are under the land.
We want to change the Constitution of Canada, but we want to change our constitution here in Canada. That is why we take such deep offence at this attempt by the Prime Minister of Canada to run around Canadians, to get around us by sneaking away to London to have our constitution changed in his way first before it comes home so Canadians can get their hands on our constitution to change it in the way they would like to see it changed.
Some hon. Members: Hear, hear!
Mr. Nielsen: Now someone is speaking for Canada.
Mr. Clark: It is bad enough that this government has solittle confidence in the provinces of Canada that it writes in a section 42 which will allow the provinces, the provincial governments and the provincial legislatures, to be written out of the picture. That is bad enough, but what is worse is that this government has so little confidence in the citizens of Canada that the Prime Minister will not risk putting those amendments which are closest to his heart to the people of this country. Instead of putting them to the people of this country, the Prime Minister proposes to put them to the people of another country. He proposes for the last time to take advantage of the colonial status inherent in the British North America Act and to use the fact that it is a colonial document and that it is in Britain to have it changed there, rather than changed here where it should be changed.
This is an anniversary for the- Prime Minister, because ten years ago this month he introduced the War Measures Act.
Mr. Trudeau: And you supported it.
Mr. Clark: I was not here. It is also an anniversary for me, because it was eight years ago this month that I was first elected to this House of Commons. During that time I have been engaged in debate on many measures, many for which I had deep feelings and in which I became intensely involved. Some of them were difficult. I remember standing between Mr. Diefenbaker, the then right hon. member for Prince Albert, and Mr. Horner, the then Conservative member for Crowfoot, who changed his party but not his position on the Official Languages Act. I remember having to speak at that time in favour of the Official Languages Act bracketed by those two gentlemen.
I have dealt in this House of Commons with issues that touched me deeply and which touched my region and my country deeply. But no proposal which has come before this Parliament in my time here has alarmed me more than the…
proposal that is before us today, because it is not simply a change in a law; it is a change in the way of governing Canada; it is a change in the fundamental respect that we have always shown for the two levels of government and for the essence of the federal system.
What alarms me and the members of my party is not simply that a bad law has been introduced, but that a proposal has been put before the Parliament of Canada that could destroy our federal system. When that is married, if it is, to the initiatives we hear are being planned with regard to energy policy and which are bound to enrage western Canada, and set into context with the province of Quebec where there is now already deep disappointment and concern about whether or not people were misled by the statements made on behalf of federalism-not by Claude Ryan nor by myself-in the referendum campaign, then we could have here a situation which is of the gravest danger to this country.
I say that with sorrow. I say it in the hope that some of my friends in other quarters of this House of Commons, that some of my friends elsewhere in the country who know my feelings for Canada even though they may not share then in each particular or each matter, will understand with what sincerity I express our concerns about the provisions of this bill provisions which I believe could not simply end the country as we know it, but could end the country itself.
Some hon. Members: Hear, hear!
Mr. Edward Broadbent (Oshawa): Madam Speaker, in this historic debate, I think that all the details of this proposed resolution, in terms of the consideration of its relevance and whether we should support it or not, can be reduced to two questions.
The first question is-is it legitimate, is it appropriate at this time, for the Parliament of Canada, alone, to be supporting a resolution that would change the constitution of this country? That is the first question.
The second question to be answered, whatever one decides on the first, is whether the particular package we have before us on a range of matters-and I shall come to those in a minute-is one we should support on its own terms whether it was submitted as a resolution by the Parliament of Canada or whether it came after unanimous agreement between the government of the day and the provincial governments of the day.
Surely those are the two questions. Are we right at this point, in 1980, to be acting, here in Ottawa, alone? The related question, of course, is whether we have any right not to be acting at this point, and I want to deal with that one as well.
Then we have to look at the package, Madam Speaker. My party and I, not only before the referendum but right at the time of the referendum as well, have said that the process we have used to get constitutional change in Canada has not been effective. The Minister of Justice (Mr. Chrétien) listed instances of previous conferences-with different prime ministers, not just the present Prime Minister (Mr. Trudeau)- where the unanimity rule was said to prevail and when we did not get change. For this reason my party and I have believed for a long time, particularly since the referendum, that the best way of building the consensus the Leader of the Opposition (Mr. Clark) is correct to be concerned about, would have been to broaden the basis of discussion over the summer to get away from the institutions of power alone.
I am not going to pass judgment because, frankly, it is irrelevant to the debate now whether a premier or a set of premiers or the Prime Minister himself brought to the particular conference that took place the best set of attitudes. I do not think that is relevant.
I do think the structure within which we have been operating- the unity principle-had built into it profound limitations which were not present and have not been present in other federal states. If you have duly elected heads of government-whether New Democrats or Conservatives or Liberals-at the level of the provinces, and the prime minister, whether Conservative, New Democratic or Liberal, heading a federal government, then you have a conflictive situation that is almost impossible to resolve. At any other point in our history, if we had not gone through this for so many weeks, months and indeed years, I would say we should give it another chance. I would say, “Let us try again.” But surely, Madam Speaker, it is indeed time to act, and act now, on the Constitution of Canada.
Some hon. Members: Hear, hear!
Mr. Broadbent: There is no doubt that the premiers from
almost every province, the leaders of all the parties within
Quebec in the referendum-and we were not always on the
committee and that has been mentioned-all spoke for federalism-
and said in that context that we wanted change. But it is
Quebeckers are not the only ones to have problem is as concerns the future of Canada. It is a fact that Quebeckers want some changes, but people also want some changes in every other province, whether in Newfoundland, Alberta or British Columbia.
The particular changes of the province of Quebec nay be one kind but the changes in other regions of Canada at this moment are real as well. They want change; they want action. Whether one wanted the timing to be somewhat different or not, is irrelevant. We sense a mood in the country in its different regions that is saying, “Let’s have some action. Let’s break the roadblock.” I repeat, I am not blaming the premiers. That is intellectually vacuous. I am not blaming the Prime Minister, either, since in my view that would be intellectually vacuous too.
The point is that if one thinks we have to do something at this moment in our history, then I, as one Canadian not exactly old yet, but too long in politics and feeling already we ought not to sit around as Canadians without our own constitution, want some steps to be taken and I want them taken now.
Some hon. Members: Hear, hear!
Mr. Broadbent: If you say there is a mood in the country that we ought to deal with it now, then i say, with respect, to the Leader of the Opposition that we have to act now. If he is correct in his judgment that the package is wrong and could be divisive and would lead to what his rather dramatic-and I do not share the judgment-concluding sentence-could Iead to the breakup of Canada,-then i am going to argue something different if we get a different kind of package.
Some hon. Members: Oh, oh!
An hon. Member: How naive.
Mr. Broadbent: Just listen to the argument, please. I sat and listened with care to two important speeches and now i have some points i want to make.
The point I am making is that here is an historical circumstance that presents an opportunity for change. The Americans had to go through a revolutionary war in order to effect change and I could list a whole series of modern nations where constitutional change took place at a particular point in time. If you do not seize the opportunity to reduce the grievances and ease the tensions, it may be lost. The tensions, whether they are those in the province of Quebec at one time in our history-and i shall come to another part of our country in a minute-or somewhere else, will become too great. Then we might lose this land of ours in its present structure and we might create one, two or three Canadas. i think at this point in our history the situation is as serious as that-that we have to seize the opportunity for some change.
If that is the case, then the relevant question is whether the package before us is going to be divisive. It is a serious matter to go against the premiers-it is a serious act and I acknowledge that; it would have been preferable to get an agreement, but if we are going to do it, are we presenting a package that Canadians, whatever their partisan affiliation can accept? We know that the militants in all parties are going to have their partisan concerns but I am talking about people who may vote at one time or another for one party or another and who do not pay much attention to constitutional debate. When they see the package they are going to be asking themselves, “Can i as a farmer, or as a fisherman, or as a lawyer who may be concerned about civil liberties, accept it in my part of Canada?” It seems to me it is in this context that we have to look at the package.
The mix of items is important. The number of items is also important. I do not think it appropriate for us in the Parliament of Canada to be amending a whole range of items across the board and then saying to the British parliament, as the Leader of the Opposition has correctly said, that most of the changes should be made here in Canada by Canadians, and not elsewhere.
Sone hon. Members: Hear, hear!
Mr. Broadbent: We need a balance in proposals; we need a
limited number of items. I want now to apply that test to the
resolution before us.
I want to say at the outset that i do not see it. Rather, I would have seen one particular package having come from the government as a personal set of priorities from the Prime Minister, because he talked about a lot of things in the summer which did not get support from the premiers, which did not get support from the Conservative party, which did not get support from the New Democratic Party, which, i say, in all candour, are not in the package.
I want to give credit where it is due by saying that the Prime Minister backed away from certain things that i knew were being discussed. i had anticipated they would be here, and they are not. So I ask: what is there? There is a patriation aspect to the bill, which, as i have already indicated, in principle we support. The hon. member for Winnipeg North Centre (Mr. Knowles) submitted on behalf of my colleagues a private member’s motion or bill 20 years ago calling for patriation. The idea of patriation is hardly new to us.
Then what about a charter of rights? The minister said there are only four or five essential things in the bill, so it is limited in number. We have to discuss those things to sec if they merit support. There is a charter of rights. These items, I say, may be believed in by the Liberal party, but they are also things which my party has argued for four years: patriation and rights.
The former member for Greenwood-Andrew Brewin-I will mention him by name because he is no longer here-a distinguished Canadian who fought for Japanese Canadians back in the forties when it was not popular to do so, argued for a charter of rights for the then CCF. Subsequently, the New Democratic Party adopted the same position.
We want a charter of rights. For example, if we had had a charter of rights back when the Prime Minister was active in a non-political way fighting the Duplessis regime, we might not have had a padlock law in the province of Quebec because it would have contravened a fundamental right such as we are, perhaps, going to entrench. We might not have had an Alberto press bill in 1937. We might not have had a government in Newfoundland which tried to violate the rights of workers in 1959 when the premier of the day and his government broke up the IWA, violating, in my view, the right of association in a fundamental way. So, Madam Speaker, we want a charter of rights. We think it is overdue. One can debate, as our members will in committee, some of the particular rights envisaged and propose certain amendments which we hope will be seriously considered, but we are on the record as favouring a charter of rights because it is important to restrict governments in…
advance from doing certain wrong things as well as to give citizens the right to challenge them subsequently if they have done those wrong things. In that context, my caucus colleagues are particularly concerned about the rights of native people. I am not going to elaborate on that aspect this afternoon, but you can be sure that someone in committee will be raising from our point of view our concerns about the inadequacy of the measure as it affects native Canadians.
Some hon. Members: Hear, hear!
Mr. Broadbent: I would now like to talk about language rights. If I may, I shall say a few personal words. As a candidate in the 1968 election, I defended the rights of Francophones in Oshawa for the first time in my political career.
It is a matter, surely, of all the things that we ought to believe in and ought to implement if we believe in the duality of Canada. Specifically, that we in English Canada at long last should be saying to Francophones, whether they are in Manitoba or Maillardville in British Columbia that we are not going to force French down people’s throats, Francophones outside Quebec ought to have the same rights as Anglophones in the province of Quebec in terms of education.
Some hon. Members: Hear, hear!
Mr. Broadbent: So we believe in that part of the bill and we think it is time to do that, especially in light of the referendum.
I add, too, that we will have something to say in terms of an amendment in that respect. It seems to us that the first ministers’ agreement of 1978 said, “Yes, minority language in the schools,” but also, “Yes where numbers warrant.” But the provinces should have the jurisdictional authority to establish by definition what the numbers are. I see the Minister of Justice nodding in agreement suggesting at least a sympathetic understanding of that important provincial point.
Mr. Lawrence: It is not in there.
Mr. Broadbent: It is not in the bill now, but it is an amendment we will be looking at.
With respect to equalization, which is the fourth key item of the bill, as the leader of a social-democratic party I can tell you that if there is one thing, we believe should be entrenched in the constitution it is a fundamental goal of equality that will remove a lot of unfair distinctions.
Again, the question is not one of principle. Surely in the bill we should be talking about these fundamental principles. We agree with them. We will have something to say in committee about the wording. We think there is a better possibility to deal with it in the constitution, but again we think it should be there. It is a New Democratic Party principle that should be there.
An hon. Member: Oh, oh!
Mr. Broadbent: A Tory snickers. Maybe it is because he does not believe in equalization. I can understand that, but we do.
Mr. Clark: Madam Speaker, I rise on a minor point of order. I am sure that the Leader of the New Democratic Party (Mr. Broadbent) made that comment flippantly. He knows that the inculcation of the recommendation for enshrining equalization in the British North America Act, which is part of the Kingston communiqué, has been part of the policy of this party for several years. I am sure it is simply rhetorical excess.
Mr. Broadbent: I simply point out to the Leader of the Opposition that it was not one of my colleagues who was snickering when I was talking about equalization, it was one of his.
Mr. Malone: We snickered at you claiming it was yours.
Mr. Broadbent: In this motion I have talked about certain matters of substance that in principle we agree with, namely, patriation, rights, language rights, equalization-
An hon. Member: Why don’t you join them?
Mr. Broadbent: Finally, there is an amending formula. We have some very serious concerns about one aspect of the amending formula. I mention the two-year rule where unanimity is to continue. I say to the Leader of the Opposition, one of the things which appealed to me is that it will stop any further unilateral action by Parliament for the next two years moving in that way during the two-year period the unanimity rule is in force. What is to come after that, we have some concerns about which we will be expressing in committee. However, I hope we can approach this aspect. I say both to the government and to the official opposition that when we get to committee I hope we can discuss some of these details in a sensible way, if we agree on the principle, in order to get some decent amendments accepted.
If what I have said so far is acceptable in principle, even if a number of details have to be dealt with in committee, there is a fundamental question for myself and my colleagues which is not adequately dealt with because the balance that is necessary in a federal system is absent. I say with all seriousness to the Prime Minister that from time to time I have found his rhetorical response offensive to the premiers who have said they want to get a resource item in the constitution. The Prime Minister has a tendency in his polemical way to say that they want to bargain fish for rights. I say to the Prime Minister and through him to the Minister of Justice: surely, that is not the response. The issue is not, in this context, one of rights or resources. Surely we can have both in a constitution-resource control and fundamental rights.
I appeal, particularly to the government of the day. When we are making serious changes affecting language rights there is the possibility of being misunderstood. We all know about that elsewhere in Canada. I can almost hear the arguments now that we heard a few years ago when we passed the official…
languages bill with support of all parties when the accusation was made that we were trying to force French down people’s throats. Well, it was not true then and it is not true today in this legislation. We must head off the bigots before the arguments start. One of the ways to deal with it is to give a package which includes the matters I have talked about in principle and also says something to ordinary Canadians, whether they live in Newfoundland and they are concerned about resources there, in Nova Scotia, the prairies or the province of Quebec. In particular, I want to emphasize western Canada in this debate.
I wish to digress for a second, not because resources are more important substantively to western Canadians than to those who live in Newfoundland. In recent history we have gone through a difficult period in terms of Quebec-Canada relations. One would have to be dreaming to contend that such has not been the case. All the difficulties have not been removed. That is for sure. However, as a Canadian from central Canada, I am concerned about another region, that is the west.
Over the past 20 years we have had to deal with national unity with a Quebec focus. Over the next 20 years, if we do not do what is right, we will have to deal with national unity with a western focus. As someone from southern Ontario, I want to stress this. We should not kid ourselves. The west was settled by men and women who had a tough time for many decades. They saw my home province of Ontario and the province of Quebec imposing tariffs to protect their industry. They saw us getting very wealthy. They accepted that, in part because they had such things as the Crow rate which offered some sense of equity. However, on the whole, they were poorer than the rest of Canada.
They now sense that with their control of their resources, they can somehow make up for our control of industry. They have oil, gas, potash and lumber. There is increasing world demand for all of these things, both in terms of finished products and manufactured goods. Because of this, western Canadians are now saying they can do it. However, they are apprehensive. It should not be reduced to paranoia. They are apprehensive that those of us who numerically have power because of the greater population in central Canada will take the resource control away from them.
That is not the concern of the parties. It is a human concern which has been expressed by ordinary people in western Canada who are not members of any party. Therefore, if we want to get this good and civilized package, as I described in principle on another occasion, one that is acceptable to the people of our country, and if we want to head off the bigotry and have an element of non-partisanship in this important debate on the future of our land, then I say to the Minister of Justice, please moderate the language, even that which you used today. There was some opening on the question of resources. However, the minister seemed again perhaps to close the door. I hope that is not the case.
We should take this package to our people and get them to defend it. I again emphasize, this is not only the west. There are people in Atlantic Canada who do not want to survive on equalization. They want to get control of their resources, legitimate control. They think they can move out of poverty and become independent, getting away from handouts. That is important.
In particular, we must say to western Canadians: let us legitimize what you thought you had before some recent Supreme Court decisions. Let us say that to this package of changes, which is limited in number, we will add another one. I will be very specific about what we see as a condition for our party being able to support this. I do not want to do this timidly or half-heartedly, one that is part of the package. I hope the Prime Minister will now show greater flexibility on this.
Let us take the two points talked about on the opening day of the first ministers’ conference. One is the provincial right to indirect taxation. That does not stop the “feds” from collecting income tax. It does not take away any federal authority. It will simply give the provincial governments the right to impose indirect taxes on their resources so as to do something for their people. There was agreement on the first day, but it is not in the package.
The second important aspect of resource control is interprovincial trade. The premiers were prepared to say that they wanted a role in interprovincial trade, but with federal paramountcy. This was in case one provincial government might want to give preferential treatment to or discriminate against another province. I understand the premiers accepted this need for federal paramountcy within the new power of a provincial right to participate in interprovincial trade and constitutionally have a say in it. Those are the two points of basic importance to give us a package so that we can say we not only believe in rights, whether they are language rights or other rights or equalization, although equalization is not important to the western provinces now in terms of dealing with their needs. They feel they are on the go and we should be encouraging this feeling instead of holding them back.
I want to conclude by saying on behalf of my colleagues that there is much in this proposal that is attractive to us, not because it comes from a Liberal Prime Minister but because it reflects resolutions and motions passed by my party over the years. If the government will show flexibility in committee and accept some amendments, we can have a decent piece of legislation. If the government wants our support in the House of Commons, the very minimum it must do is to make reasonable, fair changes in the constitution in the resource sector which are important to Canadians wherever they may live in this land.
I conclude by saying that this is an historic event because if this measure passes, we shall be changing the fundamental law of our land. I hope when the bill comes back to the House from committee, it will be so improved that members of all parties can be proud to support it.
Some hon. Members: Hear, hear!
Mr. Caccia: Madam Speaker, in view of the hour, I wonder whether there is a disposition to call it six o’clock?
Some hon. Members: Agreed.
Madam Speaker: It being six o’clock I do now have the chair until eight o’clock this evening.
At 5.58 p.m. the House look recess.
The House resumed at 8 p.m.
Mr. Chas. L. Caccia (Davenport): It would be worth while for one moment, Mr. Speaker. t0 ask ourselves tonight, during what the preceding speaker described as an historic debate, why we are amending the constitution.
As I recall it, the process of looking I our constitution was initiated in the city of Toronto from which I come. At the instigation and initiative of the then premier of Ontario, Hon. John Robarts, a conference was called together, and it was perhaps from that moment that the movement began in Canada, in recent times at least, toward the development of an all-out effort, initiated at the provincial level, to reform the constitution. Now tonight, some 14 or 15 years later, we find ourselves involved in what hopefully is the concluding phase of that process.
If you look at this document before us, a ‘” Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada,” and begin to read it you will sec there is a heading on page 3 which immediately jumps to your eye, namely, the “Canadian Charter of Rights and Freedoms”. In that schedule we find fundamental freedoms spelled out as follows:
(a) freedom of conscience and religion.
(b) freedom of thought. belief. opinion and expression, including freedom of thepress and other media of information. , and
(c) freedom of peaceful assembIy and of asseociation.
A growing number of Canadians have over the years expressed their desire to see freedoms of this kind safeguarded in our constitution, and you will find them among our majorities as well as our minorities across the country. May I point out to you also, Mr. Speaker, that since the end of the war over four million individuals have come to Canada to settle here from coast to coast. It is among those four million new Canadians that you will find a very keen desire to have these rights and freedoms and a charter embracing them in our new constitution. The fundamental freedoms as set out in this resolution will give our people a reassurance of how deeply Canada once again is committed as a nation to such basic principles.
Over the weekend in Toronto a number of people approached me and voluntarily expressed their support, quite vigorously so, for a charter of rights and freedoms, embodied in the constitution and they expressed their delight on learning through the media that this is the case. The same can be said for our fine democratic rights and the principle of mobility and of legal rights as outlined in this proposal. I would like for a moment to deal with a question in relation to this resolution under the heading “Minority Language Educational Rights”.
I have difficulty putting this all together into one title because it is my concept of Canada that language rights arc attached to what are majorities in some parts of the country and to what are minorities in others, but that these are two major groups in our society from which educational rights flow. What is contained in this bill seems to me to be a very good step in the right direction in the light of present political circumstances and within the limitations imposed flowing from three months of consultations between Ottawa and the provincial premiers. However, I hope that one day our constitution will give to anyone the right t0 have his children educated in the other official language. When il comes to English and French, each of these languages is a majority language in some parts of Canada and the world. We have here a great cultural, linguistic asset, and the lease we can do to give the fullest scope to this linguistic heritage of ours would be. in the long run if il cannot be done now, to modify clause 23(2) and to remove the idea that only a sufficient number of children would warrant minority language education.
One child in this nation of ours should be sufficient, in my view. Otherwise, how can a Francophone civil servant be transferred from Quebec to Alberta and have the assurance that his children will continue to be educated in French? Or let us consider the English-speaking family in Toronto which wishes, a more recent development in our city, to have its children educated in French. Il is the desire of a growing number of Canadian families t0 bring up their children fully bilingual, competent in both languages, in the hope that by doing so over the years some of the isolation between the two major groups will be reduced and in the long run completely eliminated. That effort, of course, begins through the effort that is made in the learning of a language at an early stage in life. A growing number of Canadians, I am glad to report, not only in Toronto but I understand also in Vancouver and other cities want to bring up their children in both languages.
I believe firmly and passionately that Canada never was and never will be a country of one language and one culture. I believe that our existence and survival in North America will depend to a considerable degree on how clearly, we have established in our minds-and as a result of that in our laws the essential quality and character inherent in Canada, the concept of bilingualism, from which naturally flows that of multiculturalism.
Moving on to other parts of this bill, I am glad to see a clause dealing with unclaimed rights and freedoms related to native peoples.
I am glad to see that full recognition will be given to the principle of equalization as a cornerstone of our confederation.
With regard to the amending formula, it is a rather technical expression. As I understand it, it means the rule that will be followed when we make changes to our constitution. The proposal before us, it seems to me, is the quintessence of reasonableness. Step one: What is proposed here is that for the next two years another try be made. The hon. member from British Columbia laughs at the expression “quintessence of reasonableness,” but I suspect that he, like his leader, is one of those Progressive Conservatives who is being reluctantly dragged into the twentieth century by this bill. It is high time they were dragged into the twentieth century reluctantly, but that is their problem, not ours.
Let me go back to why I describe this proposal as the quintessence of reasonableness. Step one: This bill tells us that for the next two years another try will be made by the ten provinces along with the federal government and that if a formula is agreed upon unanimously, that will be the formula to amend our constitution in the future, and the problem will be solved.
Step two: If efforts should fail, then, as I understand the bill, a formula agreed upon by eight provinces with no less than 80 per cent of the population would be put to the people by means of a referendum. The people of Canada would be asked to choose between the formula agreed upon by the eight provinces, a formula similar to the one agreed upon in Victoria or a formula which might be proposed by the federal government.
There is a third step because it may be that the eight provinces representing 80 per cent of the population will not come up with a formula. If the eight provinces do not agree, there would be an automatic coming into force of the formula agreed upon unanimously by all provinces in 1971 in Victoria.
Mr. Friesen: Mr. Speaker, I wonder if the hon. member would allow a question.
Mr. Deputy Speaker: Would the hon. member permit a question?
Mr. Caccia: Mr. Speaker, I would rather complete my remarks, and then I will be glad to reply.
How much more reasonable can a proposal be? The proposal sets out three steps. It sets out one following the other. There would be an attempt once again over two years to come up with a solution with the ten provinces. If that fails, eight provinces come up with one, and finally we go the route of a referendum, an idea which opposition members and the provincial premiers really should not find too offensive, that of turning to Canadians to ask them for an opinion. Perhaps that is an idea which might be worthy of their support. After all, we live in a democracy. After all, the loyal opposition believes in democracy. Here is a proposal which says that if step one fails and if step two should fail, we would then put the question to the people, having exhausted all the other alternatives. Having resolved the question of the amending formula through these three steps I have outlined, no longer will the amending formula, as Senator Forsey once put it, be suspended between earth and heaven like Mohammed’s coffin. It will have been dealt with.
In conclusion, I would like to say that change is not always easy, and in this case we are adopting in our constitution new concepts like the Canadian charter of rights and freedoms.
We are changing as individuals; we are changing as a nation. Our values, our goals, have been changing since 1867 by way of immigrants, by way of new Canadians, by way of the evolution of our own thinking as a society and by way of the concept we have of ourselves. What is emerging here? Is a new Canada emerging? I say yes, it is a new Canada. The constitution of Canada as proposed by the Prime Minister (Mr. Trudeau) will be remembered by historians, I venture to say. That was the step, they will write, which needed to be taken in 1980.
It seems to me that the proposed constitution reflects the way in which the majority of Canadians think today. But, what is more important, it reflects the world of our young people, the world they see daily in their schools in our large cities, for instance. Our society as it grows and expands requires this Parliament to move now in the direction of offering people protection of their basic rights. It is moving in the direction of asking this Parliament to offer people choices in the unfolding of their cultural and linguistic aspirations, talents and heritage. It is moving in the direction of offering people the opportunity of choosing the instrument with which they will want to change their number one law, namely, their own constitution.
This, in essence, is what the proposed Constitution of Canada conveys to me, Mr. Speaker, the way it stands before us here tonight, the way it was first announced last Thursday by a thoughtful, bilingual Canadian, Pierre Elliott Trudeau. After so many years of negotiations and effort, now is the time to move ahead. Once this task is completed, Parliament will be able to devote its full attention and time to other pressing issues. But now is the historical moment. Now the time is ripe.
Remember, Mr. Speaker, that almost 15 years have gone by since the provinces initiated this process of demanding constitutional reform. How much longer can this process, not initiated by Ottawa, go on?
Remember this, Mr. Speaker: Quebec has a government devoted to the idea of leaving Canada. That government has every possible interest in prolonging this constitutional process. Remember too, Mr. Speaker, that last February most Canadians gave their confidence to our Prime Minister who has the confidence of the overwhelming majority of Quebeckers. Remember also, Mr. Speaker, that while the Tory benches are shaking their heads in disbelief, this very same man, the Prime
Minister of Canada, has the confidence and the full support of Premier Davis of Ontario.
An hon. Member: How about Claude Ryan?
Mr. Caccia: The opposition benches may be trying to reorganize their thoughts. All they can be afraid of is their own fear, their fear within the walls of this building, because out there the nation is vibrant, the nation is vigorous, diverse, beautiful and anxious to go ahead.
Some hon. Members: Hear, hear!
Mr. Caccia: Canadians are expecting from their Parliament no more federal-provincial conferences, which are coming out of their ears. What the nation is expecting from us is, at last, our own made-in-Canada and changeable in Canada constitution.
Some hon. Members: Hear, hear!
Mr. Friesen: Mr. Speaker, as another thoughtful, bilingual Canadian I thought I would ask the hon. member for Davenport (Mr. Caccia), a question, if he would entertain it now. The hon. member used the term “the quintessence of reasonableness” in relation to the amending formula. It has such a beautiful ring to it that I could not leave it alone. I should like to ask him: If eight provinces are uniformly in favour or are opposed to a certain measure but all of them are provinces other than Ontario or Quebec, would they contain 80 per cent of the people?
Mr. Caccia: Provinces must have no less than 80 per cent representation of the population. Therefore, it is a pretty substantial base from which to operate. The hon. member understands that politics is the art of moving with support and a strong base. I submit to him that eight provinces with 80 per cent of the population is a pretty good, solid and therefore reasonable base.
Some hon. Members: Hear, hear!
Hon. Jake Epp (Provencher): Mr. Speaker, 113 years ago Canadians, one could say ordinary Canadians, joined together to create a country, a confederation. Theirs was not an ordinary task and their work also has been judged by history as being extraordinary. That task is before us today as well and it is in that spirit of confederation I intend tonight to try and put before the House and Canadians, the spirit on which the country was founded and which is necessary today to make the constitutional changes that are sought by many.
This nation was founded on a spirit of integrity, of mutual trust and, above all, on compromise. Canada has proven to be a difficult nation to govern. It has taken great wisdom and a willingness to co-operate and also real concessions on the part of all who have been our political leaders.
Now the Prime Minister intends to complete the foundation of our nation as he sees it by improving the cornerstones. His proposals and his actions over the past few months have ensured that our foundation will be completed in an atmosphere of distrust, disunity and open confrontation. If he is allowed to follow his proposed course of action, he will not, as he claims, unblock the future progress of constitutional reform but rather he will disrupt any possibility of it ever being undertaken with the unanimity that we all seek.
Canada needs and wants our constitution brought home which would be amendable in this country. Many Canadians urgently require real constitutional renewal. The time has come to meet those demands but this will only be possible in what has been termed the Canadian way. We cannot ignore 113 years of experience which has taught us the need for co-operation and compromise on the part of all our political leaders. Unilateral action and confrontational politics will not mark the end of our beginning but rather the beginning of our and. These leaders accepted such an arrangement because it was in accord with the political and social reality of the nation, and I suggest to all members of the House that that reality still exists today. First, Canada is a federation, a partnership, and this fact is central to the view that we hold of our country. The Prime Minister puts forward the position that the provinces must be subordinate to the central government. The provinces then retaliate by rejecting new arrangements because of the circumstances and the atmosphere that has been created. So, we must ask ourselves as members what is best for our country. We on this side of the House believe that both levels of government must be strong. An order of checks and balances must prevail and that order of checks and balances cannot be broken. No central government has the right or the power to change the division of powers without the agreement of the other partners, and no province has the right to reduce the federal government to a mere “chairman of the board” role.
Over the past few months I have been disturbed, as I am sure others have been, to hear various commentators and other people suggesting that what the political leaders really intended in 1867 was the creation of a dominant central government with subordinate local counterparts known as provinces. They point to the broad general powers given to the federal government, particularly the power of disallowance. Yet, at the time of confederation it was suggested that the federal government model this power after New Zealand’s strong power disallowance. They rejected that position. As we seek to patriate and alter our written constitution, it is important that we remind ourselves what the document is that is planned to be changed. The British North America Act does not spell out all the rules by which our political system operates. Most of these rules are not written down anywhere but have evolved as conventions through many centuries of experience. It is at our peril if we reject that experience. In Canada we can be proud that we have inherited the most admired democratic system in the world, the British parliamentary system. Canada has a few of these rules written down because unlike Britain Canada is a federation. Most of these rules are contained in the British North America Act which outlines the basic institutions of each order of government and their respective powers. In other…
words, Canada’s written constitution defines its federal system. The British North America Act was the product of discussions and mutual concessions between representatives from the various colonies of British North America. Many Canadian political leaders at that time would have preferred to create a legislative union or a unitary state. Included in that group was our first prime minister, Sir John A. Macdonald, who preferred a legislative union but agreed to establish a federal system. One must ask the following question: Despite such personal inclinations and backgrounds, why was the federation formed? I should like to quote John A. Macdonald who said when speaking of New Zealand that they gave the powers stated to local legislatures but the general government had power to sweep these away. This is just what they did not want. Lower Canada and the lower provinces-that was the Maritimes at the time-would not have such a thing. Today the ten provinces-and I want to include the two territories north of sixty-will not have such a thing because their powers will be swept aside. This is the reality we face. Tempered by this political reality, the Fathers of Confederation limited the power of disallowance so that provincial governments would remain strong enough to protect their traditional powers. That cannot change today.
When Lord Carnarvon, the official who helped translate the Quebec resolutions into the British North America Act, presented this act to the British Parliament, he affirmed the nature of the confederation bargain. As we start this debate, I think it is important to understand that bargain. I should like to quote him as follows:
The adoption of the principles of federation, as compared to what might be preferable if practical, a solid legislative union, is simply the consequence of the absolute necessity of the adjustment of inveterate local interests and the ultimatum or mutual compromise between the provinces.
He went on the explain the British role respecting that agreement as follows:
As the arrangement is a matter of mutual concession on the part of the provinces, there must be some external authority to give a sanction to the compact into which they have entered … Such seems to me to be the office we have to perform in regard to this bill.
Of course he was referring to the British North America Act. I believe what he said applies today too, that is, that the compact which was formed was incorporated into the British North America Act and any amendments, any changes, or call it now the constitutional act, 1980, cannot fundamentally alter that partnership without agreement.
Some hon. Members: Hear, hear!
Mr. Epp: Therefore it is essential that any constitution recognize the sanctity of the federation and the supremacy of jurisdiction of federal and provincial governments as provided in the British North America Act.
Since 1867, then as today, the British parliament has acted as the external authority protecting the terms of the confederation agreement. Our native Canadians make an excellent point when they say that that was part of the bargain struck in 1867 and that they are part of that bargain. It might not be very popular with some members of this House and perhaps some Canadians to mention that the native people made this bargain, but the fact remains and one cannot alter history. If we want to have a just system, we must finally recognize that these rights were enshrined in the British North America Act of Canada’s first citizens.
During this past century it has been clear that the authority of Britain has been formal more than real. The British parliament, all the statements of ministers of the Crown to the contrary, has not made major changes to Canada’s constitution except in response to formal requests from Canada. The Prime Minister and his cabinet colleagues, are not relating facts when they say or leave the impression that patriation must take place in order to end Britain making laws which affect Canada. Just recently the Minister of the Environment (Mr. Roberts) made that statement again on national radio, leaving the impression that in the absence of patriation there seems to be a whole stream of legislation coming out of Westminster which is affecting our lives. That is simply nottrue.
For example, as early as 1925 Prime Minister Mackenzie King could confidently tell the hon. members of this House that the formality of processing amendments through the British parliament was no indication of Canada’s subservience. Still, since the 1920s, Canadians have shown a recurring desire to end this formal authority, not because it presents some real threat to Canada’s sovereignty, but so as to affirm our independence. I share that view as do my colleagues. Patriation, that is, making our constitution truly our own, has come to be increasingly important to all Canadians, especially those Canadians under the age of 30. I believe it is an act of national self-confidence, an affirmation of the future harmony and unity of our great nation. Also it is necessary to show Canadians and the rest of the world that we are a sovereign country. In that respect we have no disagreement with the Prime Minister in terms of the act of patriation. We could go into some detail as to the process, but I do not think it is necessary. The Minister of Justice (Mr. Chrétien) gave the historical context of the number of times attempts at patriation have been made, but one fact must be kept in mind by all members in terms of the changes made to the act in 1949 at the time of the prime ministership of the Right Hon. Louis St. Laurent. At that time in 1949 that prime minister assured members of the House that Parliament was limiting its unilateral amending powers so as not to interfere with the protection provided to provincial and minority rights in the constitution. That guarantee was given by a Liberal prime minister not many years ago. He outlined in the House that if there was to be a complete amending formula there had to be guarantees. He put it as follows:
We do not want the Canadian constitution to be too rigid, but we do want to
make sure it contains the fullest safeguards of provincial rights, and of the other
historic rights which are the sacred trusts of our national partnership.
That Liberal prime minister recognized the nature of the
federation, that is, when it is changed it must be changed with
as broad a consensus as possible rather than saying, “I am the
prime minister. I will do it. You had better agree or else”.
That is the difference. It is very simple. It is attitudinal, but it concerns the manner in which this country can function and the only manner in which it will.
It is our duty as the official opposition to be wary of the manoeuvres of this Prime Minister, not that patriation is questioned on our side, but what are his other actions? What are his other goals? Today, for example, the Minister of Justice said this was the first phase; the second phase would consist of re-examining the division of powers.
I will get to the amending formula in a minute. Take a look at the provinces and their wariness, their concern, their opposition to the methods used, their apprehension that an amending formula will be brought in which does not even need their advice, much less their concurrence, and we are told the next round is going to be on the division of powers. The premiers have no choice in that context but to strongly oppose what is taking place on the floor of the House of Commons.
Patriation aside-and I am spending some time on that theme tonight because some members opposite keep repeating this as if there was not general agreement on the need for patriation-what changes to the constitution are needed, if that is fundamental? We then have to ask ourselves by what power and in what way we can change the provisions? Every province, no matter how large or small, entered into agreement and gave up some of the powers it had earlier, prior to provincial status, in the interest of establishing a strong federal government. But because of its unique development in history and the character of each province it retains certain powers necessary to maintain its particular heritage. For example the western provinces, which were created by the federal government, were established under certain terms additional to the British North America Act, terms which I suggest cannot be unilaterally altered. It took a formal constitutional amendment, for example, to alter one of the provisions in 1930, and that was the one affecting the three prairie provinces of Alberta, Saskatchewan and Manitoba, under which we finally got control over our natural resources, something the other provinces already enjoyed. How can you tell the provinces not the premiers but the citizens of those provinces-that suddenly there must be a new arrangement to cover resource ownership and control? Manitoba, for example, spent a longer period without control over its resources than the period during which it did exercise control. In economic terms, Mr. Speaker, that is the only manner by which those provinces will attain economic equality.
What the Prime Minister says to us, with his amending formula, is that such a formula can be worked out without broad agreement among the provinces. I do not think it can happen that way. For example, the Prime Minister has said that for two years he will guarantee the protection of provincial rights by implementing the convention of unanimous consent. The assumption underlying this action would seem to be that the provinces and the federal government have two years in which to come up with a more flexible amending formula and that this provision would force a decision. As long as this government is in power there will be no incentive whatsoever for the federal government to bargain in good faith. Why not? Because the Prime Minister has repeatedly rejected all suggestions except the Victoria charter, and any new amendment coming in after two years that would deviate substantially from Victoria would be acceptable to the federal government. There is no way in which agreement can be found if the federal government insists on holding this trump card.
The Prime Minister has offered an alternative-a referendum between the federal government’s proposal and that of eight of the provincial governments. The Vancouver consensus had a provision whereby the voices of seven provinces comprising 50 per cent of the population could determine the manner in which amendments should be sought. I am one who does not believe that the unanimity formula can work and I think experience will indicate that this is so. On the other hand, I do not believe the 50 per cent was adequate. I personally would have preferred a two-thirds majority. But according to the wish of the Prime Minister, even before an amending formula can be voted on in referendum by the rest of Canadians, just to get it on the referendum order, so to speak, you need eight provinces and those eight provinces must have 80 per cent of the population. It does not take very long to sec that there are two provinces which will immediately get a veto. On the other hand, you need a number of smaller provinces which will never compose the 20 per cent, just to have the question put to the people of Canada.
Additionally, there is strong objection to the Victoria charter. People might ask why. There was general agreement to the Victoria charter of 1971 and the amending formula. The fact is that great opposition to the Victoria charter comes from western Canada because in the last ten years the west has changed. It has changed in this way: we have a larger population and more economic growth and we just cannot accept the removal of the principle that in terms of amendment the provinces are not equal partners. We cannot accept that principle because under the Victoria proposals cither in the Maritimes or in the west we needed two of the provinces to agree and they had to comprise 50 per cent of the population. In practical terms could Saskatchewan and Manitoba ever stop an amendment which would affect their rights? The answer is, no. Alberta and British Columbia could join at any time, or British Columbia at the present time could join with any other province in western Canada. So what is fundamental here is recognition of the fact that if you have an amending formula two criteria must be met. One is approval of the House and the Senate-and this House is a reflection of the population of the country and the way in which that population is distributed. None of us have any argument with that; that is how any of us get here. A province having a larger population send more representatives. But you cannot then ask the provinces to again accept those population criteria. So I say to the government that the Vancouver consensus recognizes that in terms of partnership the provinces have equal right. I say to the Prime Minister and to his colleagues that we
will press very hard to have this viewpoint included cither in the resolution or in the report of the committee so that it can become part of our constitution.
Trust the people. That is the point made by the hon. member for Davenport (Mr. Caccia) and the Minister of Justice. Well, Mr. Speaker, I trust the people. Every member of this House has to trust the people because that is how we got here. You finally have to put yourself before the judgment of those from whom you are asking support. But there is a question which remains. Before I even get to section 42, which is so onerous to us, there is the principle of the tyranny of the 51 per cent majority. People say the majority rules. Yes, that is true in pure democratic terms. But let us look at the practical limitations of the constitution. If you subscribe to the absoluteness of the 51 per cent majority, the 51 per cent vote, then on the basis of that absoluteness the dictators in this world were right; they were right to remove the rights of the minorities.
An hon. Member: Auschwitz.
Mr. Epp: There is no question that in the Germany of the 1930s, during the heat of that period, the leader of that day had an absolute majority of 51 per cent. But what happened to the minority? So while one can argue as long as one would like that a majority should govern, if there are no checks and balances in the constitution, you can also develop a tyranny of the majority. On this basis-and I would like to go into greater detail, but I do not have the time-I would like to refer to a scholar who has influenced my thinking on this subject to a great degree, a gentleman by the name of Dr. Francis Schaefer. He says that on this basis law and morals and that is what we are dealing with in a constitution-become a matter of averages. Yet they are absolutes.
Let us as members never forget that averages can be manipulated and statistics can be used. I do not wish to be disparaging of the media or of my colleagues in the House, but I think all of us recognize that we have a certain ability to move people into certain positions of thought.
What would happen if there were a combination in a referendum of the power of the media and the power of the political leadership to convince a majority for the time that a certain course of action were the right one? Before too may days hence, vie would find that the majority was in fact simply a hollow victory to the detriment of everyone concerned. I say to all hon. members that when we get into committee we must be careful about referendums because so often the minority and we are saying here that we have a charter with which we want to protect the minority-is the very group that can be defeated by the tyranny of the 51 per cent majority.
Although my leader has spent a fair amount of time discussing section 42, I think the reason we object to it bears repeating. The problems arising from the unilateral imposition of the Victoria amending formula, I believe, pale against the other formula outlined in section 42 and section 46 of this resolution. It is a Catch 22 situation, or perhaps more aptly put, a “Catch 42” situation as it concerns the federal government’s proposals.
This section has received very little attention from federal officials, the media or hon. members, yet it could fundamentally alter the future of our federal system. According to section 42, the federal government by a simple majority in this Parliament, can initiate a referendum on any constitutional amendment. If the federal government’s proposal receives a simple majority of support across Canada, for example in Ontario and Quebec or in two of the western provinces and two of the eastern provinces with 50 per cent of the population of the respective regions, it can remove any of the traditional provincial minority rights without even having consulted the legislatures, much less having received their concurrence.
There is no doubt that this is an affront to the federal system. There are those who have said, “Maybe section 42 is only a throw-away bargaining position”. If it is, I say to the government, “Throw it away”. I believe that if there is a stalemate, the people should be consulted directly, but only as a last resort. Section 42 does not make such a provision. In fact, it can become an amending formula of the first order. As I have said, we want to patriate the constitution, but we do not accept the Victoria formula as modified in the constitution and we absolutely reject section 42.
I will say a few words on the Vancouver consensus and go on from there. The Prime Minister has frequently criticized the Vancouver consensus because of its provision for opting out. Yet, if an amendment must apply to all provinces, it would be the obligation of the federal and provincial governments to work out suitable compromises. That is tradition in our country. The Prime Minister says that this formula would result in a so-called checkerboard Canada. Personally, I do not think of it as a checkerboard but as a mosaic, and when it is changed we get back to the essence of what Canada is as a country.
Our nation is a checkerboard. That is why we have chosen to call it a federation rather than a unitary state. The point we would like to make to the government is this: we are not saying that the Vancouver consensus or the other formula are perfect, but by the same token the government should not say to us, “Our system is perfect and if you do not agree with it, we will impose it anyhow”. That is not how the system works.
There are other points which should be mentioned, for example, the entrenchment of the principle of equalization. This principle has been endorsed by my party for some period of time. The Leader of the New Democratic Party (Mr. Broadbent) gave the inference today that we were opposed to equalization. That is not the case. Traditionally my party has been in favour of resource ownership and management by the provinces.
It is here that I find the New Democratic Party to be most inconsistent. I am not sure whether the Leader of the New Democratic Party had to make his point here with regard to resource ownership being in the hands of the provinces because of the Premier of Saskatchewan. We agree with that approach…
and that was also the position of our government. But if I understand the policies and platform of the NDP correctly, they say they are in favour of a national industrial strategy and nationalization of the oil industry. However, how does it put the square in the round hole when it says, on the other hand, that resources should be owned and controlled by the provinces? It cannot have it both ways. The NDP are saying on the one hand-and I think it is for political reasons-that the provinces should own their resources. Then it turns right around and says that those very resources should be nationalized and used for purposes of administration control and ownership by the provincial governments.
Mr. Broadbent: Just like potash in Saskatchewan. You can understand that, can you not?
Mr. Epp: I hear the Leader of the New Democratic Party and it seems that another sensitive nerve has been struck. Another point which I think bears repeating in this House is this: Throughout this draft resolution there is no reference to Canadians living north of latitude 60. Do they not exist? Do they not fit into the Prime Minister’s plans? I imagine they will be part of the “simple majority” about which he speaks in a referendum.
An hon. Member: All 25,000 of them.
Mr. Clark: Someone demeaned them by saying all 25,000 of them, and I think it was the hon. member for Ottawa Centre (Mr. Evans).
Mr. Nielsen: That is typical.
Mr. Epp: If the Liberals are saying there are only 25,000 residents for instance in the Yukon Territory and another 45,000 in the Northwest Territories, the point is, they are Canadians.
An hon. Member: And minorities.
Mr. Epp: They have the same rights and privileges as those I want and receive. We are not speaking about provincial status nor are they, but in this whole amending formula they do not exist.
An hon. Member: They can’t even vote on a referendum.
Mr. Epp: Surely that is not acceptable. I should like now to deal with the charter of rights. There will be a debate, sometime, as to better ways in which we might protect our rights, whether through a charter or through a convention such as the British parliamentary system. One thing we have to keep in mind is that regardless of our viewpoint on how rights are best protected every one of us holds the position, first of all, that we have basic fundamental rights, that these have been respected in Canada and that in each case, every party and every member intends to uphold those rights. That is not the issue. The issue is a fundamental one, honestly held, and that is, how best do you protect them?
For example, at the first ministers conference the Prime Minister made the point, I believe sincerely, that because we did not have a charter of rights, Canadians of Japanese descent were relocated, primarily from British Columbia, to other regions of the country. I have in my riding members of the Canadian Japanese community and I have discussed with them the period of turmoil through which they had to go. The point I want to make is that the Prime Minister leaves the inference that had a bill of rights been entrenched, this would not have happened. That is not so, because in the United States where they had a charter of rights and a written constitution, the same action took place. I am not justifying the action of the United States at that time nor of Canada at that time. That is not my point. They were both wrong. As we examine this question in committee, however, let us be careful to address the fundamental point-not that we have not got rights, but how the rights we have can best be protected.
Some hon. Members: Hear, hear!
Mr. Epp: This raises, obviously, the objection to my argument – that we do not trust the judicial system. That is not the case, Mr. Speaker. I am not for a minute suggesting that the courts do not have an important role to play in the protection of individual freedoms. Under a bill of rights which functions properly, the courts do make many of these decisions but their judgment is advisory. The ultimate responsibility rests here, in Parliament, and in the legislatures. When rights are constitutionally entrenched, when the final decision rests with the courts, the judiciary must be cautious lest il should be charged with partiality or misinterpreting the intentions of the draftsmen and setting a precedent with which none of us can live. So long as the judge’s role is advisory, as it is under the Bill of Rights of the Right Hon. John Diefenbaker, the courts do feel more free to be clear and forthright in their judgment.
The real value, as I sec it, of a bill of rights, is that it reflects those goals toward which we all must strive. What I have tried to say is that when we entrench a charter of rights, it is not just a symbolic act. It significantly alters the very nature of political responsibility in our parliamentary system.
On a matter of detail, this resolution calls for the forming of a joint committee. Its purpose is to examine a draft resolution for the patriating and amending of the Canadian constitution. The federal government has proposed that the House should appoint this all-party committee to study the government’s proposed resolution. The committee will be empowered to hear witnesses and thus ensure greater citizen participation. For months, our party has been urging and supporting the participation of representatives from all political parties from all parts of Canada, as well as certain other groups such as the native people of Canada, in the process of constitutional reform. We have called it a constitutional assembly. Today, we have a constitutional committee. I shall not quibble about the words or the function but the purpose which must remain is that Canadians can be heard.
There are ample precedents for a constitutional assembly. For example, in the United States one was called in the 1770s in Philadelphia. After the turmoil of the Second World War, citizens of Western Germany got together and worked out a constitution. Shortly thereafter they established a country based on democratic rights. They had an economic revolution which became known as the oeconomishes wunder and which became the hallmark for the industrial economic society of which we also are part of today.
There is ample precedent, Mr. Speaker, for us not to worry about allowing Canadian citizens to participate in the making of their constitution. We should not be worried about that. It means, first of all, that the committee deadline of December 9 is simply not adequate. If we are sincere that Canadians are to be heard, that the resolution is to be debated and discussed, the job cannot be done in less than two months. It is not possible.
Some hon. Members: Hear, hear!
Mr. Epp: Additionally, the committee report is to be written by December 9. This means it would have to end its debate possibly two weeks before the December 9 deadline. It is an affront to Canadians to ask them to become part of this. Canadians can be heard-if they can get to Ottawa. An hon. Member: If there is not a strike.
Mr. Epp: This is where the committee is to sit. Mr. Speaker, I am one who does not believe that the committee’s mandate should be open-ended; I believe that now is the time for action in constitutional reform. This party will be proposing that the deadline be extended to a minimum of six months. We suggest this because in this House on June 10 the Prime Minister proposed another deadline, this time on the first ministers. I am convinced, as I stand here, that that deadline contributed greatly to the failure experienced in the former railway building across the street.
Turning now to the matter of a quorum, it is proposed that 12 of the 25 member committee will constitute a quorum which can make decisions. Those 12 members must have representation from the two houses but the resolution does not say anything about more than one party. Is the government serious when it says that Parliament should make a decision without the opposition parties being represented at the time it is taken?
An hon. Member: True grits.
Mr. Epp: I could accuse them of all kinds of things, but I did not think they would be guilty of that kind of action.
An hon. Member: You are too trusting.
Mr. Epp: For a committee to hear evidence, six members shall form a quorum and again, both houses must be represented. But only one party could in fact form a quorum. The bon. member for Ottawa Centre (Mr. Evans) says I am wrong. He should read his own notice of motion because that is exactly what it says. That is an amendment we want, Mr. Speaker.
I accept that patriation with a unanimity formula for two years is already a substantial amendment, without agreement by the provinces, but we should not go further at this time. We should bring the constitution back and then change it here in Canada-not ask Britain to do it first and then bring it back. If we are mature-and I believe we are as a country-let us exercise that maturity and responsibility and not ask someone else to do it.
There is a saying which goes like this, Mr. Speaker, “Time does not respect what is done without it.” I am not an advocate of endless time on this question because I believe this debate in itself can serve to rend the country apart as the various views are expressed ad infinitum.
But the Prime Minister said that he made promises during the referendum debate.
Mr. Clark: And he broke them.
Mr. Epp: I say to him now: let us not exacerbate the situation either in Quebec or in western Canada or anywhere else by being rash. We must not endanger the harmonious operation of the federal system. Therefore, in view of the pressure which this government will receive from all parts of Canada to amend beyond the points I have made, I suggest that the government follow the course struck by the Fathers of Confederation, that of consensus, of debate, of discussion and of agreement. That is the Canadian way, and that, I believe, is the manner in which we should proceed.
Sone hon. Members: Hear, hear!
Mr. Evans: Mr. Speaker, I would like to make sure the record is clear on the comment attributed to me by the Right Hon. Leader of the Opposition (Mr. Clark). My comment was in response to that made by the hon. member for Provencher (Mr. Epp) that the people from Yukon and the Northwest Territories were not represented. I said that all 25,000 of them are.
Mr. Nielsen: That is inaccurate.
Mr. Evans: The hon. member for Yukon (Mr. Nielsen) is a member of this House and he represents 25,000 people, the populace of Yukon. The two members from the Northwest Territories, one from the Progressive Conservative Party and one from the New Democratic Party, represent the people of the Northwest Territories. I suggest to you, Mr. Speaker, that my comment was not made in any derogatory sense. I am saying that the people of Yukon and the Northwest Territories are represented in this constitutional debate right here in the House of Commons.
Some hon. Members: Hear, hear!
Hon. Bud Cullen (Sarnia): Mr. Speaker, it seems to me that we may have overworked the word historic, and this being an historic debate. If it is not historic, most assuredly it is important. Unhappily that has not been the case with many of the debates in the House of Commons over the few years I have been here. It seems to me there is a tendency to talk too much rather than too little and to be afraid of setting deadlines and of taking decisions on important subjects because we might not give everyone in the House of Commons an opportunity to speak on each subject that comes before this chamber.
Most assuredly this particular debate, so eloquently led off today by the Minister of Justice (Mr. Chrétien), it is an important debate and one which should capture the attention of every member who should make a point, if he or she cannot be here, of reading the comments that will be made.
I listened with careful attention this evening to the hon. member for Provencher (Mr. Epp). I do not agree with all the conclusions he reached, nor with some of the assumptions he has made. I think he has a tendency to underestimate the intelligence of the Canadian public. He seems to feel that because we have a debate and because we do not totally agree with each other, it is going to tear the country apart. I think Canada has reached a maturity, which the hon. member referred to but almost rejected further on in his address. Canada has grown up. Canada has come of age, and it is about time we had a Canadian constitution amended by Canadians under which Canadian decisions are made about this country for present and for future generations. We have an opportunity to do that with this particular resolution and with the amendments which will follow. This can be done either in December or at subsequent meetings to be held in this chamber and at meetings between first ministers.
It is my considered opinion that the action Parliament is taking now–because this is not a government action per se, the government takes initiative and shows leadership but this will be a Canadian parliamentary decision-is ambitious, appropriate and most assuredly necessary. We have an opportunity to break the log jam of constitutional debate.
In the short time that I have been here, almost 12 years, I was surprised to learn of the number of meetings the Minister of Justice was able to cite today as having taken place with respect to constitutional debate. As I said earlier, the concern is not that we talk too little on this particular subject but that we may have talked too much about it. I heard the hon. member for Provencher nit-picking, if you will, the amending formula. We have tried several procedures. We had one named after the Hon. Davie Fulton when he was minister of justice. It was called the Fulton formula. Later came the Hon. Guy Favreau, who filled the same portfolio and endeavoured to come up with a formula that would be acceptable. Then we heard about the Fulton-Favreau formula. We have heard about the Victoria and the Vancouver formulae. We have heard about all kinds of formulae. Every one was delinquent in one fashion or another. No amending formula will please everyone. Therefore, a decision has to be taken. This particular suggestion made by the government is not unilaterally imposed by the government on the provinces.
Mr. Malone: It is, too!
Mr. Cullen: We indicate that for two years it will be unanimous consent by all provinces and the federal government. We set a deadline, in other words a time-frame within which we can come up with an amending formula with which surely eight out of ten provinces can agree. If they cannot, there is provision for dealing with it. But at long last we have indicated that the time has come when we must have an amending formula so that we can get on with the business of creating a Canadian constitution made in Canada.
Some hon. Members: Hear, hear!
Mr. Cullen: I believe that every member of this House would have preferred some form of consensus to have come out of the first ministers’ meeting so that we would be going to Westminster with a view, a consensus, acceptable to the provinces and to the federal government. Every possible effort was made by the federal government and by the provinces to arrive at a consensus. But it became evident, surely it became patently obvious, that such a consensus could not be reached. What is the alternative. The status quo was unthinkable. Surely we made a promise to the people of Quebec, when they voted in the referendum overwhelmingly in favour of Canada, that we would do something? The status quo was obviously unacceptable. Some change has to be made. We could not arrive at a consensus. The federal government took its initiative and said unilaterally that it would move to patriate the constitution, to take the action necessary to put things into this constitution and bring about an amending formula. We will not impose it, but we indicate that an amending formula is necessary, and that these are the steps by which it must be reached.
To suggest the federal government was less than honest in its presentation or that it was not prepared to negotiate or not prepared to make concessions is not in accordance with the truth. Consider the fact that we were prepared to make concessions at the federal level on family law and, on indirect taxation of resources, which the Supreme Court of Canada determined was ultra vires to the provinces-but with which we were prepared to go along. We were prepared to give more powers in interprovincial trade and resources. We were prepared to give new provincial powers in fisheries.
When we talk about consensus, Mr. Speaker, consider the dilemma of the federal government. The province of Newfoundland says it wants total control over fisheries, inland and offshore. The other Atlantic provinces say no, that they are quite content to deal with the inshore fisheries but they want the federal government to take care of the offshore. When you cannot get a consensus among provinces which are as vitally concerned in the fisheries as they are, certainly in Atlantic Canada, surely the time comes for the federal government to take some initiative and say that it will resolve this particular problem? We were prepared to give greater jurisdiction in so…
far as fisheries were concerned. We were prepared to say that they would have a greater share in revenue and management of offshore resources.
I heard the Premier of Newfoundland say this was not good enough. I heard him say he wanted it all. As it turns out, he wanted to make everybody in Newfoundland fabulously wealthy. No matter what amount of money was derived as a result of finding these resources on the offshore of Canada, they were going to be for the single benefit of the province of Newfoundland. No person representing all of Canada, and certainly no parliamentarian should be prepared to go along with that issue and say he is doing a job for all Canadians. We did say we would give them 100 per cent of the revenue from those resources until such time as they became a rich province. Surely after that a decision has to be made about the distribution of wealth found on the offshore of Canada.
Shortly before I came to this House, Alberta had an oil find. It was involved in production and could not find a market for its resource. It had to charge higher than world prices in order to get the resource developed. People in Ontario and other parts of Canada, divided by a particular line, said they were prepared to pay more than world prices in order to help develop this particular resource. That was appropriate.
Canadians from other provinces made that contribution so that Alberta could evolve and develop its oil industry. Now the province has done so. It is a very rich province with a significant Heritage Fund. I do not begrudge that. However, Alberta should not be saying to petrochemical industries that in the future if they want to establish in Canada, they must establish in Alberta, because that is where all of the oil is, and unless they establish there they are not going to get any help. More than that it should not tell a very strong, viable petrochemical industry in southwestern Ontario that it will not be considered a traditional purchaser and that if it wants to get oil, it will have to get it from certain particular groups without any guarantee of security of supply.
So far, the petrochemical industry has been able to get the oil that it requires. In the event of a shortage though, Petrosar will surely have a very difficult time convincing its suppliers that there should be a sharing of that short resource.
I am very apprehensive about the legislation passed in Alberta. If I may indicate a personal opinion, I think that piece of legislation is ultra vires. However, nobody is making any noises about that. We are taking what the hon. member for Provencher (Mr. Epp) talked about, the Canadian way. We are trying to work out an accommodation. We are trying to make it work so that it will work to the benefit of Alberta and, certainly, to the benefit of the petrochemical industry in southwestern Ontario.
When the time came to build a world-scale plant, when the petrochemical industry was in difficulty in Canada in 1968-69, the then minister of industry, trade and commerce, now Minister of Transport (Mr. Pepin), suggested the formation of a joint government-industry committee to determine what were the problems. He wanted to forget about name-calling and placing blame. He wanted to find out how to save the petrochemical industry in Canada.
Government and industry got together and said they needed economies of scale and world scale plants. Canada could not support five or six world-scale plants, so it was decided to build them in a progression. The first one, based on an economic decision made by the industry, was to be built in Ontario, the second in Alberta and the third in the Montreal region. Staging along these lines is in fact taking place at the present time and it is beneficial to the petrochemical industry. We were not selfish. We were all working together to make a strong petrochemical industry for Canada. That is the kind of responsibility a federal government has when dealing with the provinces. We must, as a federal government, take our responsibilities.
At that bargaining table we talked about greater jurisdiction in communications for the provinces. We talked about enshrining equalization payments to the provinces. Surely this is absolutely essential and no one could object to that move. We offered to give the provinces a greater role in the appointment of judges to the Supreme Court and a greater provincial role in the upper chamber. There was an attempt to negotiate, to accept a responsibility to speak for all Canadians, to accept that the provinces had some concerns as well and should have more power and more say in those areas.
When I read the statement which has been made about the constitution and the areas we are asking the British Parliament, if you will, to incorporate into the constitution, I asked myself who could, in all sincerity, object to the items which are to be incorporated. The hon. member for Provencher said we should have brought back the British North America Act, solely patriate it, not have an amending formula and not incorporate anything. That is a legitimate point of view. I do not agree with it, but it is a point of view that he has. I believe it makes more sense to patriate the constitution, to have an amending formula so that we can do something, and surely no one in Canada can in all conscience object to those things we are talking about incorporating. We are suggesting these items:
For the first time, the basic rights and freedoms of Canadians will be entrenched in a Canadian charter of rights and freedoms so that they cannot be infringed upon by any single government, legislature, or Parliament. Individuals and minorities who feel aggrieved will have recourse to the courts.
Who can object to that being incorporated? It is not as though we were making some power grab. This is to protect people.
In the charter, Canadians will be assured of the freedom to move across the country, take up residence, and pursue employment in any province.
We do not have that now.
The charter will guarantee that citizens of the English or French language minority in a province have the right to educate their children in that language wherever numbers warrant.
Surely that is a reasonable approach to the right to education which every Canadian should expect. It is not imposing. The language indicates “where numbers warrant”. If I may…
speak personally, I would have gone further than that, but in the interests of compromise, those words are incorporated at the end.
The principle of equalization which is with us at the present time is being enshrined in the constitution. Who can really object to that?
An amending procedure will ensure that all changes to the constitution can be made in Canada.
For the life of me, I cannot understand how anyone in opposition can seriously object to the incorporation of those items I have just listed. Nor, frankly, can I see the problem with the amending formula when we have had so much difficulty over the years. Here at least there are some guidelines. If we can improve upon it, let’s do that. But for heaven’s sake, let us get an amending formula which makes it possible to have a constitution that lives and gives some direction to this country.
Some hon. Members: Hear, hear!
Mr. Cullen: I wince a little when I hear-and I have heard the Prime Minister (Mr. Trudeau) say it on one or more occasions that we have to remove the last vestige of colonialism. Some people have taken that as a rap against the British. I think the rap is really against Canadians when that statement is made, and well it should be. It has taken us an unconscionably long period of time to come of age, to say that we can come up with an amending formula and declare what we want in our constitution.
If I may interject a personal note, my father came from Somerset in Great Britain. He taught me about Britain. Instead of telling me gory stories and hero stories, I heard about England. The brainwashing got through. When I was 17 years of age, I participated in a public speaking forum. The topic of my speech was how Britain saved the world in 1940. I know of the parliamentary system the British have given to us. They have given us the idea and sense of fair play. I think of the accommodation, the politeness and the way in which the British conduct themselves. They have been calm in times of great trouble, particularly during World War 11. We saw their reaction. We have much to learn from our British heritage.
Four days after the 1968 election my father passed away. At that time we had our new Canadian flag. My father had lived in this country since coming from England in 1924. He was proud of the fact that he was living here in Canada and that Canada gave to him a great living. When I buried him, I placed the Union Jack on his coffin because I felt that was appropriate. The poet said it better than 1: “There is some corner of a foreign field that is forever England”. That was all right for my father and his generation. I am a Canadian and I am proud of it. I do not feel the least bit concerned about the suggestion that the Brits are trying to impose colonialism on us. I believe it is a fact that because we are not prepared to grow up, not prepared to set deadlines and not prepared to make decisions we remain colonialists. The Brits are not trying to keep us that way. We are being kept that way because of our own shyness, quietness, nervousness and apprehension.
Perhaps it is because of our time-consuming debates that really do not amount to anything. It should be said to us as Canadians that surely it is time we stood on our own two feet, make decisions and amend the bloody formula. I am sorry, “bloody” is swearing. My father taught me that.
Some hon. Members: Hear, hear!
An hon. Member: That’s a good navy word.
Mr. Cullen: We have come of age and we have an opportunity to prove that during this debate. I do not know whether we will sec non-partisanship. I do not ever expect to sec that in this chamber. I hope that never occurs. I would hope that opposition parties and the government party will put forward positive suggestions. If the amending formula is not good do not knock it for the sake of knocking it, but come up with something better. I would bet that we could find ways to attack those suggestions publicly as well, but let us come up with some positive ideas. Let us not underestimate the intelligence of Canadians. This country is not going to split up because we have a debate in the House of Commons, or for that matter in the media or on any platform. This country can stand on its own two feet, and I am satisfied it can take a little bit of honest disagreement and difference of opinion. I am not afraid of deadlines and I am not afraid of making decisions. I do not think Canadians in the country are concerned about this debate. Give us a chance and let us get this legislation through bringing that constitution to Canada where it belongs. Let us make the changes here in Canada as Canadians for Canadians. Thank you, Mr. Speaker.
Mr. Douglas Roche (Edmonton South): Mr. Speaker, it is difficult to respond to the personal references the hon. member for Sarnia (Mr. Cullen) has made to the way he feels about Canada. Many of us, if not all, have the same personal sentiments as those expressed tonight by that hon. member. I think, though, we must go beyond personal considerations.
The hon. member suggested it is time we got over being quiet, nervous and apprehensive about constitutional change. Let me assure the hon. member that the people in the area of western Canada from which I come are not nervous, apprehensive or quiet. We are rather loud, confident and sure about the kind of Canada we want, and I must say I resent very much the hon. member’s suggestion. The same sort of suggestion was made in respect of those who expressed opposition at the beginning of the flag debate in 1965.
Let me assure hon. members that I oppose what the Prime Minister (Mr. Trudeau) is attempting to do and that I will continue to oppose it with every ounce of strength I can muster in this House.
An hon. Member: You oppose everything.
Some hon. Members: Oh, oh!
Mr. Roche: I do not oppose everything. Hon. members in this House who know me will know that during the eight years
I have stood in this House I have not been an opposing member. However, I do oppose what the Prime Minister is attempting to do in this debate.
The resolution before us is in essence unconstitutional because it goes directly against the principle of federation. It goes directly against the kind of Canada we inherited and want to leave to our children. It goes directly against the kind of Canada which was formed through a union of the provinces with a centre. It goes directly against the kind of Canada which we recognize as something other than a unitary state.
The proposed resolution goes directly against the regional diversity of this country and I want to say a few things about that diversity during my remarks, particularly as it applies to our international commitments today.
The kind of Canada I inherited and the kind of Canada I want to have to my children is a Canada that will not be totally changed, as it will by the application of proposed section 42 in the resolution before us. That proposal would permit amendments to our constitution as a result of a binding referendum. In this way provincial governments would be completely bypassed. As my leader pointed out today, this is proposed because the Prime Minister knows he cannot get the agreement of the provinces, so he is making this last-ditch stand, going to Westminster to get these amendments. It would be funny if it was not so sad. He wants to go to Westminster to obtain these substantive amendments to our constitution.
I venture to suggest that every member of this House wants the constitution brought to Canada, or patriation on the basis of a unanimity formula. There is no dispute about that. What we oppose is having Westminster charged with making substantive amendments. These are not just casual amendments but amendments that would virtually change the character of this country. We are being asked in the name of the flag to support this idea.
I may come into this House as a western member, and I do so proudly. I will say a few things about that in a moment. However, I have spoken and I have voted in this House for eight years as a national member and as a member supporting the whole country. I do not bring into this House a mere regional representation. I lived outside this country for ten years. As the late Lester Pearson used to say, and he was a friend of many of us here, sometimes the way to understand the country better and the way to be a better Canadian is to live outside the country and sec it from afar. I have done that, sir. I do not claim I have a better understanding of Canada than other members of the House. I am only suggesting that we have to summon up in this debate the strength that is within us with an insight and an understanding that transcends our regions, backgrounds, politics and personalities. We must ask ourselves a fundamental question. I hope members on the other side of this House will also ask themselves this question. The fundamental question is; when you look at the totality of the legislation before us is it right or wrong for Canada? I submit, sir, that it is wrong for Canada. I am sure we are going to hear a lot about the charter of rights. We heard about that yester-day afternoon on “Cross-Canada Check-up”. It seems clear that those of us who oppose this resolution are on the wrong side of this issue politically. I do not worry about standing here in opposition on this issue, even though I acknowledge that the perception today in Canada is that we are on the wrong side. It is put forward that because the people of Canada are to get a charter of rights that should be enough to persuade us to vote in favour of it. It has been said we are going to receive equalization and a charter of rights, but I do not believe the people of Canada have yet had an opportunity to examine fully what this resolution will do for Canada.
I hope our party-and I invite other members of other parties in this House to do so-will seriously reflect and debate it fully. I hope there will not just be a casual two or three-day debate. I hope it will be fully debated so that the people of Canada get the message of what we are trying to say, which is in essence that even though this resolution may have some factors and features in it which appear to be attractive, the fullness of it will destroy the Canada we know.
I put that to the House at this major moment in the history of our country. I do not think there is a debate-certainly not very many in my time here-which matches this one in intensity with regard to the direction of the future of our country and in importance.
I have said that when this resolution is considered in its fullness one comes to the conclusion that it does go directly against the principles of federation, and clause 42, among others, is the centrepiece of that objection. It is a unilateral action, which is enough to discount it right away. It would bring in amendments directly affecting provincial rights, particularly in education.
Some might say that is all right, but it would provide, as I have said, the possibility, indeed, even the probability, of amendments by referendum in which the provinces are bypassed. That is a different kind of country. If we are going to have that as the basis of our federation, then let the Prime Minister bring the constitution to Canada, let us debate it here, and let the provinces have an input. Let us have a constituent assembly. Let us have a formal structure in Canada to make such decisions and not run it through by a so-called joint address from the Senate and the House of Commons as an expression of the will of the people of Canada, for it will not be. It will be fraudulent, and I hope the people for whom I have great respect in Westminster are listening. I hope the people in the other place who will be under attack by the fullness of this resolution will give consideration to these factors.
I want to move now to what I consider to be an even greater evil in this resolution and explain why it deserves to be attacked on the principle of being wrong. It will certainly promote divisiveness in our country.
I return here to my role as a western member. Those western members who will be joining this debate will reflect the feeling of alienation which is building quickly in western
Canada today. There is a group called the West Fed-Western Federation. As a matter of fact, three or four nights ago the federation met in Red Deer. Five hundred people came out to its meeting. West Fed would have the four western provinces secede and form their own union and, in effect, their own country. There are many people in western Canada who today are disposed to join such an organization. I know what I am talking about. The man who runs Western Federation is a man who opposed me for the nomination for the Edmonton South Progressive Conservative nomination for this past election which I had the honour to win. I beat him in the last nomination meeting, and I will beat him in the next nomination meeting. I will run against him. I am not afraid of him, and I am not afraid of Western Federation, but it is the Liberal government and whose actions are fomenting the membership of Western Federation which is a threat to western Canada today.
There is divisiveness in our nation, and I feel badly about it because of the nature of our country. We have technology, space, resources and everything which is needed for a successful country in the world today. In my work for my party I have travelled around the world, and I have seen many countries. I have seen countries which do not have one-tenth of the potential this country has to be successful, yet we are hung up on divisiveness, internal wrangling and these things which sap our energy. Why? Is it because our constitution is bad? Our constitution, the BNA Act, has served us for 113 years and has built this country. I checked with my secretaries in Edmonton today, and no one is calling me and telling me we have to get the constitution changed. What they are saying is that they want an energy agreement. I have received much mail and many calls on that. We need an energy agreement, and we need to get the economic situation of our country turned around. We have to address these matters seriously. No one thinks there is any magic button. I do not care who is in office; no party has a magic button to make the energy and economic situations better, but there is a sense of priorities. Those priorities are energy and the economic issues. I am proud to say that when my friend, the Leader of the Opposition (Mr. Clark), was Prime Minister, he addressed those two central questions, which affect the lives of every Canadian, in a meaningful way.
What will the patriated constitution do? Will it produce an ounce of oil or create one job’? It certainly will not. What it will do is enlarge the smokescreen for the Prime Minister, who has been unable to solve the problems which really affect our country, and make it look as if we are doing something good because we will have a charter of human rights.
There are two perceptions of this country. I hope hon. members opposite are listening to my two perceptions. They are not new, but I feel intensely that there is a perception that is best reflected in the conduct, the words and the attitude of the Prime Minister. I would not push it too far, but he says that it is the centre which really has the answers and which should have the power to send down into the various regions those things which we-whoever “we” are in Ottawa-decide ought to be sent. It is the centralist view of Canada.
Opposed to that there is a regional, community view. Our country is 4,000 miles wide; there are five time zones and three oceans. This country has a lot of diversity. My friend, the right hon. member for Yellowhead best reflected what it is today that makes our country. It is a sense of national unity which comes up from the regions, rather than being imposed.
This is really a high level debate we have entered into because what we are arguing is not just the resolution and not just clause 42, central though it is to our debate. We are discussing what kind of view of Canada will prevail. We have seen this come out in economic issues before, and we have certainly seen it in the energy issues. Now we are seeing it perforce in the constitutional issue, and if we who are opposing this measure lose, and that constitution is brought home, we are going to see a different kind of Canada. It will mean that hon. members opposite have prevailed. I do not think the people of Canada want that. That is why the people of Canada need to know what is happening in this chamber. They need to know what this debate is all about. I hope the media will fully reflect that. I think somebody said earlier today that the media is being somewhat superficial in this. That was not a criticism of the media. It was a question of whether the media will be swept away by the seeming fulminations in favour of a better Canada brought about by this resolution while failing to dig into how the character of our country will be changed.
Now let me get to the charter of rights. This is supposed to be very attractive, as we heard yesterday, and as I am sure we will hear in the course of this debate.
There is a central point to make about a charter of rights. A charter of rights is meaningless if the intention of the government is not to endorse il fully. To sell a charter of rights and to entrench il is something which will automatically make our lives better: try to tell that to the people of the Soviet Union. Try to tell that to the people of many countries. I think what is important is for us in this country to have human rights commissions, as we do at the federal and provincial levels, which protect the rights of people. I believe it is important for us to have the bill of rights.
I believe it is important for us to move eventually to an entrenchment. I am not speaking against entrenchment; I am only saying that to put up a smokescreen in this whole debate and to say that entrenchment is so valuable that it can override section 42 is to mislead the Canadian people and to take them down a path on which they do not even know they are going right now.
Some hon. Members: Hear, hear!
Mr. Roche: Now we come to the international application of the charter of rights. I hear il said that we must have this entrenchment because il will be better for us at the United Nations. We have the Helsinki review coming up at the
Madrid conference. I say to you, Mr. Speaker, that entrenching our rights will not do one iota for Canada in enhancing human rights around the world through the Madrid conference. Canada already is a signatory to the human rights conventions of the United Nations. It is a smokescreen to be told that this is a necessary factor, either domestically or internationally today.
I believe we must centre on what this debate is all about. It is about the character of Canada. If we who feel deeply about the divergent strengths and the regional strengths of our country if we lie down and let this thing roll over us, we will not be responding to our duty. I say there will be those who will ask one day where were the members of Parliament when this fundamental change was made in our country. There are many members, I think, who will want to stand up and give an expression of their deep commitment, whether they come from the western area, from the Atlantic region or from Quebec or Ontario, who understand that it is all of us together who make up our country.
There are many other aspects to which I would like to go on, but I do not know whether or not you will give me any more time, Mr. Speaker. I say that this is a fraudulent measure. I would not feel I am making a complete statement if I did not give you a few more words on this, Mr. Speaker. Somebody has said that section 7 does not deal with the native rights. I say it does not deal with many human rights. Section 7 states that everyone has the right to life except in accordance with the principles of fundamental justice. I would like to know how that accords with the Criminal Code amendment passed in 1969 which led to the abortion situation in our country today where 60,000 abortions are taking place in the name of so-called justice.
Some hon. Members: Hear, hear!
Mr. Roche: I would like to know how that accords with that amendment. This government, which has been in power throughout the 1970s, without ever addressing itself seriously to the question of what is happening to abortion today, has the gall and the nerve to come to the House and say that everyone has the right to life. Everyone does not have the right to life in this country as a result of the Criminal Code amendment. Let the government clean up its own house first before it gives us nice language that is supposed to make us feel good.
That is just one aspect of how I feel about the essence of this resolution. I believe it should be opposed, not opposed in a mindless or vacuous way but opposed because we ask Canadians to seriously consider that what is being done through this resolution will affect their country and the country of their children in ways of which they never dreamed, ways which will change this country from the manner in which it was built up by a formulation of regional strength into an overly centrally dominated institution, absolutely incompatible, we feel, with how the Fathers of Confederation viewed our country.
Some hon. Members: Hear, hear!
Mr. Jean Lapierre (Shefford): Mr. Speaker, it gives me great pleasure to participate in this historic debate. It is indeed a great day for all Canadians and more particularly for French Canadians. I do not share at all the great sadness or the apparent sadness of the Right Hon. Leader of the Opposition (Mr. Clark). Today he nearly had us crying at the end of his speech, and in fact I might have cried out of disappointment at hearing him, a man who said he was a new leader with new ideas; I had the impression that it was politics like was being carried out in the 1930s when there was no real desire for change. The leader of the party that calls itself Progressive Conservative should certainly take a look at the name of his party and have the word progressive struck out forever because I believe that in the interventions we heard on that side of the House there was absolutely nothing progressive-on the contrary, it was very regressive.
Mr. Speaker, during the referendum campaign I was very active with my fellow citizens, and during the whole course of the summer I followed very attentively all the implications of the constitutional conference, and like many other Canadians, I was disappointed that it failed. I was disappointed for several reasons because I thought at a certain time our present structure might enable us to achieve a renewed federalism. Unfortunately, the circumstances being as they were, we had to act. I would like to remind you that we made a commitment during the referendum, and in the past few days several politicians, especially the Right Hon. Leader of the Opposition, have been trying to give an entirely different meaning to our commitment by saying or suggesting that we have deceived those who voted no. I personally voted no and I am not at all disappointed by the proposed resolution that was tabled. When it is suggested that we mislead Quebeckers, that we do not keep our commitments, I would like to remind all our detractors that the only true commitment we made was, and I quote from a speech by the Right Hon. Prime Minister (Mr. Trudeau) at the Paul Sauvé arena on May 14, 1980, when he said:
And I know, because I talked to those members this morning, I know I can make the most solemn commitment that following a No vote we would immediately put in motion the mechanism for constitutional renewal, and we will not stop before that is done.
That is what the Right Hon. Prime Minister said at the time of the referendum. That is still the position we stand by today, and the government is certainly prepared to reaffirm to all Quebeckers and all other Canadians that we will not stop before that is done. And now I think that all people acknowledge the need for action. The only issue is the means to achieve this objective. Some would prefer a constituent assembly. If they think that with such an assembly things will go faster, I wish them good luck. Others would rather hold additional constitutional conferences. Before I got involved in this kind of debate I sometimes heard politicians call these conferences “circumferences”. I think that in the past few years…
we have witnessed several such circumferences and lime has come for the federal government to show leadership in this matter. I think we enjoy public confidence. We enjoyed it at the last election and we have it again in this endeavour.
Earlier I heard the member who spoke before me say that he was afraid of ending up with a different Canada, If he has come to sit here to let things remain as they are, il is fortunate he belongs to the Progressive Conservative Party because what we precisely want, and it is also why I have come to Ottawa, is to change Canada. I think that some members opposite fear change. fi is only the beginning of their surprise because we are committed to making those changes and we will keep on doing so and I hope that following this procedure other changes will take place.
Mr. Speaker, I also read the articles published in newspapers in the wake of the various reactions to our project and the Premier of Quebec went short of calling us traitors. Frankly, I am wondering who is the real traitor with regard to the interests of French Canadians.
An hon. Member: And Canadians!
Mr. Lapierre: And Canadians. French Canadians are part of Canada.
I believe that the real traitor in this debate is certainly the Premier of Quebec who hides behind the smokescreen of collective rights to ignore all improvements made to individual rights. We know that his policy was not intended to serve the individual interests and rights of Quebeckers, but we believe that Canada and Canadians have certain rights to gain and we are ready to go ahead. That process might require more intestinal fortitude but we are ready to take part in all discussions and I think that the debate that will be going on in the next days in this House will demonstrate our determination to act to the opposition and particularly to the Progressive Conservatives who are the greatest reactionaries.
I read in the paper that the Leader of the Official Opposition said that this proposal did not meet the expectations of those who voted no. Beware. I urge him to visit the province of Quebec and meet some people and as evidenced by polls and as he recognized himself in his press conference, he will sec that his position did not reflect the opinion of the majority or the consensus of Canadians.
An hon. Member: He never visits the province of Quebec.
Mr. Lapierre: May I call it ten o’clock
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