Canada, House of Commons Debates, “Establishment of Special Joint Committee of the Senate and House of Commons”, 32nd Parl, 1st Sess (6 October 1980)


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Date: 1980-10-06
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1980 at 3274, 3280-3314.
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[EngIi.shj
THE CONSTITUTION
ESTABLISHMENT 0F SPECIAL JOINT COMMITTEF 0F THE
SENATE AND HOUSE 0F COMMONS
On the order: Government Notices of Motions:
October 2. 1980 -The Min, srer of Justice:
That aî Special Joint Commîittce of the Scnatc .rnd aittc Flouse ai (anions
te *tppointed ta cansider and repart upon the document entitled “Proposed
Resolution for a Joint Address ta Her Majesty tte Quceni rcspecting ttc
Constitution ai Canada” publishd by the goverrmnt on 0ctbr 2, 1981) and
ta rccommcnd in their repart whether or not ‘.ueh an ,tddress, with such
,,mcndrncnts .ts the carnmittee considers necessary, should bc presented by bath
Hanses ol Paritmcnt ta Her Majesty the Qneen.
That 15 members af the Hanse of Commons ta be destgnated na later than
three si Iling days atter the adoption of this motion by members on the paîrt of
this House af the Speciai Joint Committee;
That the eommittee have power ta appoint front tmang its members sueh
subeommittees as may be deemed advisabie and necessary and ta delegate ta
sneh subeommittees ail or any af their powers exeept the power ta repart dtrectiy
ta the Hanse:
That the cammîttee bave power ta sit durîng sittiags and adjoarnaients of the
Hanse of Commons;
That the cammittee have power ta send for persans, papers and records. and ta
examine wiînesses and ta prînt sncb papers and evîdence lfrom day ta day as may
be ordered by the cornmittce;
Th,îî the committec snbtîîît thetr repart no i,îîer th.îti December 9, 1980;
Thai the quorum afitlc ocmmitîee be 12 miembers. wtencver a vote, resalation
or other decision is taken, sa long as bath Hanses are represented and tht.î
t he joint chairmen te anthorized ta boid meetings, ta receive evîdence and
authorîce the prîntîng thercaf, when six meinhers ire present sa long as bath
Hauses ire represented, and
That a message be sent ta the Senate reqnestîng ttat Hanuse ta unîe wîth thîs
Hanse far tte abave pnrpase. and ta select, if tte Senate deets tl ta bc
advisabie. members tua ,ct on the prapased Special Jatnt (ammitter.
Madam Speaker: Pursuant 10 Standing Order 21(2), this
notice of motion is transferred tu and ordered for consideration
under government orders later this day.

GOVERNMENT ORDERS
[Translation]
TUE CONSTITUTION
ESTA BLISH MENT 0F SPECIAL JOINT COMMITILE 0F THE
SENATE AND HOUSE 0F COMMONS
Hon. Jean Chrétien (Minister Of Justice and Minister of
State for Social Developinent) moved:
That a Special Joint Commttc of the Senate and of the House of Commons
be appoinîed t0 consider and report upon the document entitled “Proposed
Resolution for a Joint Address 10 Her Majesty the Queen respecting the
Constitution of Canada” published by the government on October 2, 1980, and
t0 recommend in their report whether or nlot such an address, ssith such
amendiments as the committee considers necessary, should be presented by both
Houses of Parliament 10 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
ibis House of the Special Joint Committee;
[En glish]
That the committee have power to appoint fromn among its members such
subeommittces as may be deemned advîsable and necessary and to delegate to
such subcommittees ail or any of their powers except the power to report dîrectly
to the House.
That the committee have power 10 sit durîng sittings and adjournmecnts of the
House of Commons,
That the commîttee have power to send for persons, papers and records, and to
examine witnesses and to prînt such papers and evidence from day to day as may
be ordered by the committee;
That the eommittee submit their report no liter than December 9, 1 980;
[Translation]
That the quorum of the eonmîîtee be 12 members, whenever a vote, resolution
or other decîsion is taken, so long as both Houses are represented and that
the joint ehaîrmen bc authorized to hold meetings, to receive evidence and
authorize the prîntîng thereof, when six members are present su long as both
Houses are represented. and
That a message bc sent 10 the Senate requesting that House to unîte with this
Flouse for the above purpose. and to select, if the Senate deems t 10 be
advisable. members 10 ,ict on the proposed Special Joint Commitîcee
[English 1
He said: N4adam Speaker, for over haîf 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 ail 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 aIl failed.
On May 9 of this year, ten days before the Qucbec referendum,
the House of Commons approved unanimously a resolulion
proposed by the hon. member for Edmonton East (Mr.
Yurko) and scconded by the hon. member for Provencher (Mr.
Epp). The resolution read:
Whereas sonte provinces have repeatedly refused 10 endorse the paîriation of
the Constitution of Canada from Brîtaîn-
It was movcd:
That the Parliament of Canada submit an address 10 Fier Majesty the Queen,
that Fier Majesty may graciously bc pleased to caîuse al bill 10 be laid before the
Parliament of the U nited Kîngdom 10 provide for the ameodment in Canada of
the Constitution of Canada.
Some hon. Members: Hear, hear!
Mr. Chrétien: At the time the resolution passed, the Prime
Mvinister (Mr. Trudeau) said:
We are determined that in the months ahead the I-buse isili have an occasion
10 express itself on Ibis matter.
Mr. Dick: N4adam Speaker, I risc 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 resurne the debate and listen
to the hon. Minister of Justice (Mr. Chrétien).
Mr. Nielsen: That is very nice.
[Translation]
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.
* (1540)
[English]
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 1 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.” lndeed, 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!
3281
October
6 1980 COMMONS DEBATES
COMMONS DEBATES
The Constitution
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: 1 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
itseif. 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.
a (1550)
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.
[Translation]
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 1 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
3282 October 6, 1980
The Constitution
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.
e (1600)
[En glish]
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
October 6, 1980 COMMONS DEBATES 3283
The Constitution
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 Hurnan 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 al]
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
3284 COMMONS DEBATES October 6, 1980
The Constitution
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.
* (1610)
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 fundamenta]
values al] Canadians share would, we think, have an important unifying
effect. It would inculcate in al] 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
debate.
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.
[Translation]
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 l1 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.
October 6, 1980 COMMONS DEBATES 3285
COMMONS DEBATES
The Constitution
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 ail 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 ail 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 ail about. When minority
language education rights are taken away, the right to take up
a job in any part of Canada is seriously impaired. Englishspeaking
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 al] 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
3286 October 6, 1980
Octoer 6 1980
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.
e (1620)
[English]
1 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 tax 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
The Constitution
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.
e (1630)
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.
COMMONS DEBATES 3287
October
6 1980
3288 COMMONS DEBATES October 6, i980
The Constitution
An hon. Member: He is the best fricnd René Lévesque ever
had.
Some hon. Menibers: Oh, oh!
[Translation]
Mr. Chrétien: As 1 was saying, we wiil have a Canadian
constitution in which both officiai ianguages wiii Aiso, be protected.« the Constitution of Canada wiii protect the fundamental
rights of Canadians as weii as the rights of Francophones
outside Quebec to be educated in French finaily, which was
not the case in the past. 1 was also saying that we wouid 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, tl is a beginning. For 53 years, N4adam Speaker, we have
tried ta bargain the patriation of the constitution against
something eise, and that bas neyer worked. Since 1921, there
have been many constitutionai conferences. Starting today,
change wiil become possible. 1 spent three months with the
ministers of the different goverfiments and 1 can say today that
if under the present constitution we couid have made some
constitutional amendments during the summer, we couid easiiy
have arrived at four or five agreements.
But as usuai, at the iast minute, somne tried ta bargain ta try
ta get more, just like in Victoria, just iike in 1939 and at other
times. But by having in Canada the means ta bring about
changes as they may become necessary, then, as 1 said in my
speech and as the Right Hon. Prime Minister promised in his
address ta the nation iast Thursday, we are committed ta
continue thc renewal of aur constitution, ta review the division
of power, ta change Canadian institutions. We have ta get
started, and the oniy way ta succeed is by patriating the
constitution ta Canada immediateiy sa that we can amend it in
Canada, and that, Madam Speaker, is exactiy what we are
doing today for the benefit of ail Canadians.
Some hon. Members: Hear, hear!
[En glish]
Mr. Clark: 1 do not think you, N4adam Speaker, werc able
ta hear me, but members opposite did and they knew 1 was
rising on a point of order. 1 do so simply because 1 would not
want the Nlinister of Justice (Mr. Chrétien) ta ieave what 1
arn sure was an inadvertentiy misieading statement on the
record of the House.
[Translation]
He spoke about the ianguage rights of Francophones outside
Quebec. He said French Canadians wiil have the right t
speak French anywhere in Canada. Yes, that is what he said,
but he neyer quaiified this right, even though il is weii
quaiified here in the resoiution. 1 wouid iike ta 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 manipuiating public opinion or saying something
which is flot in the statute.
Mr. Chrétien: Madam Speaker, if the Right Hon. Leader of
the Opposition thinks that 1 do flot go far enough in these
proposais, if he wishes ail these rights to be written in the
constitution without any restriction, we wiil giadiy accept an
amendment moved by the opposition in this matter.

GOVERNMENT ORDERS
[En glish]
THE CONSTITUTION
17STABLISHMENT 0F SPECIAL JOINT COMMITTEE OF THE
SENATE AND HOUSE 0F COMMONS
The House resumed consideration of the motion of M4r.
Chrétien:
That a Special Joint Committee of thc 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” publtshed by the governmnent ou October 2, 1980, and
Io recomutend in their report whether or not such an Addrcss, witt such
arnendnicnts as the committee considers neeessary. should be prescnted by both
Houses of Parliarnent te Her Maiesty ttc Quecu:
That 15 icoibers of the House of Commons te bc designated ne later ttan
three sitting days after the adoption of tht, motion be members ou the part et
this Hotte of tte Speci:iI Jotnt Committee,
That the cotmtittee hatve power te appoint from .tntong its members such
subcommitees as may te deemed advistble and net.essary and te delegate te such
subcommittees ail or auy of tteîr pewers ecept ttc pow~er te report dtreetly te
tte flouse;
Itat tteceoîttmittec have power te sit durîng sittings and .îdjouruimeuts of ttc
House ef Commous:
3288 COMMONS DEBATES October 6, 1980
Octaber 6. 1980 COMMONS DEBATES
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.
The Constitution
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.
e (1640)
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-
October 6, 1980 COMMONS DEBATES
COMMONS DEBATES
The Constitution
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
question.
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 taking of the action-its actual
taking-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.
a (1650)
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 resolu-
3290 October 6, 1980
,c1o9e06C MOSDBTS39
tion 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.
[Translation]
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.
[English]
There are several specific issues in this resolution. Some of
them, of course, deserve approval, such as the act of bringing
The Constitution
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 witness 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-1 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.
October 6 1980 COMMONS DEBATES 3291
3292 COMMONS DEBATES October 6, 1980
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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 legisiation 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, guarantecing rights, and doing all of those good
things that we want to have donc. But inside, hidden away,
written into the detail of this legislation is a range of other
changes, a series of other proposais which could not only
fundamentally change the nature of this country but could, in
fact, as 1 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.
e (1700)
Without detaining the House of Commons too long at this
stage, I think il 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 internai
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
coloniais. 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
3292 COMMONS DEBATES October 6, 1980
The Constitution
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 proposai 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 proposai are
understood by the Canadian people because, after ail, 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
proposais. 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 understand 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
proposai that has never been seen before, a fatal proposai
which would allow a majority government that controls Parliament
to use a direct and binding referendum to bypass entirely
the elected governments of ail 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.
0 (1710)
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 ail provinces and
change any item, any item at ail, 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-1
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 proposai of this kind.
October 6, 1980 COMMONS DEBATES
COMMONS DEBATES October 6, 1980
The Constitution
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 bc
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
bc, 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 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.
[Translation]
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.
S(1720)
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
COMMONS DEBATES October 6, 1980
The Constitution
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 disposai
to amend it and make it acceptable.
[English]
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 so
little 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
80088-63
October 6, 1980 COMMONS DEBATES 3295
COMMONS DEBATES
The Constitution
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.
a (1730)
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 billprovisions
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 ail the details of this proposcd
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 1, 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 aIl 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
not just-
[Translation]
Quebeckers are not the only ones to have problenis 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.
[English]
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.
3296 October 6, 1980
The Constitution
The point is that if one thinks we have to do something at
this moment in our history, then 1, 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!
a (1740)
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 for 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 Alberta
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
October 6, 1980 COMMONS DEBATES 3297
The Constitution
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!
[Translation]
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.
[English]
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 systern 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.
h 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 ail 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
COMMONS DEBATES October 6, 1980
The Constitution
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.
* (1750)
i wish to digress for a second, not because resources are
more important substantively to western Canadians than to
those who live in Newfoundiand. 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!
October 6, 1980 COMMONS DEBATES 3299
The C’onstitution
whether there is a disposition 10 cail il six o’ciock?
Some hon. Members: Agreed.
e(1800)
[Translation]
Madamt Speaker: Il bcing six o’clock 1 do now Icave the
chair until eight o’ciock this cvening.
At 5.58 p.m. the House look recess.
[En g/i)h]
AFTER RECESS
The House rcsumed at 8 p.m.
Mr. Chas. L. Caccia (Davenport): It wouid be worth while
for one moment, Mr. Speaker. t0 ask ourseives tonighl, during
what the prcceding speaker described as an historic debate,
why we are amending the constitution.
As 1 recail il, the process of looking I our constitution was
initiated in the city of Toronto from which I corne. At the
instigation and initiative of the then premier of Ontario, Hon.
John Robarîs, a conference was calied together, and il was
perhaps from that moment that the movement began in
Canada, in rccnt limes aI least, toward the deveiopmcent of an
all-out effort, initiaîed ai the provincial level, 10 reforim the
constitution. Now tonight, sorte 14 or 15 years later, we find
ourselves invoived in what hopefuily is the conciuding phase of
that process.
If you look ai this document before us, a ‘”Proposed Resolulion
for a Joint Address to Her Majesly the Qucen respecting
the Constitution of Canada,” and begin 10 read it you wiii sec
there is a heading on page 3 which immediateiy jumps 10 your
eye, namely, the “Canadian Charter of Rights and Freedoms”.
In that scheduie we find fundamental freedoms speiied out as
foiiows:
(a) freedom of conscience and religion.
(b) freedoni of thought. belief. opinion and expression, including freedonm e)the
press and other media of information. ,ind
(c) frcedoni of pe.iceful assembIy and of asseociation.
A growing number of Canadians have over the years
expressed their desire 10 sec freedoms of this kind safeguardcd
in our constitution, and you wiil find îhem among our majorities
as weli as our minorities across the country. May I point
out 10 you aiso, Mr. Speaker, that since the end of the war
over four million individuals have come 10 Canada to sele
here from coast 10 coast. It is among those four million new
Canadians that you wiil find a very keen desire 10 have these
righîs and freedoms and a charter embracing them in our new
constitution. The fundamentai freedoms as set out in this
resoiution wiil give our people a reassurance of how deepiy
Canada once again is comnmiîîed as a nation 10 such basic
principles.
Over the weekend in Toronto a number of peopie
approached me and voluntarily expressed their support, quite
vigorously so, for a charter of rights and freedoms, embodied
in the constitution and they expresscd their deiight on learning
through the media that this is the case. The same can be said
for our fine democratic rights and the principie of mobiiity and
of legai rights as outiined in this proposai.
1 wouid like for a moment to deal with a question in relation
10 this resolution under the heading “Minorily Language
Educational Rights”.
( 2010)
1 havc difficuity putting this ail together into one titie
because it is mny concept of Canada that language rights arc
attached 10 what are majorities in some parts of the country
and to what are minorities in others, but that these arc two
major groups in our society from which educationai rights
fiow. What is contained in this bill seems to me to be a very
good step in the right direction in the light of present politicai
circumnstances and within the limitations imposed flowing from
three months of consultations between Ottawa and the provincial
premiers. Howevcr, I hope that one day our constitution
wiil give 10 anyone the right t0 have his children educated in
the other officiai language. When il comnes to English and
French, cach of these languages is a majority language in some
parts of Canada and the worid. We have here a great cultural,
iinguistic asset, and the icast wc can do t0 give the fuilest
scope Io this iinguistic heritage of ours wouid be. in the long
run if il cannot be donc now, 10 modify clause 23(2) and 10
remove the idea that oniy a sufficient number of childrcn
wouid warrant minority ainguage education.
One child in this nation of ours shouid bc sufficient, in my
view. Otherwise, how can a Francophone civil servant be
transferrcd from Quebec 10 Alberta and have the assurance
that his chiidren wiil continue to be educated in French? Or Ict
us consider the English-speaking family in Toronto which
wishes, a more recent dcvelopment in our city, 10 have ils
children cducated in French. Il is the desire of a growing
number of Canadian families t0 bring up their children fully
biiingual, competent in both languages, in the hope that by
doing so over the years some of the isolation betwcen the two
major groups wiii be reduced and in the long run completeiy
eiiminatcd. That effort, of course, begins îhrough the effort
that is made in the iearning of a language at an eariy stage in
ife. A growing number of Canadians, 1 am giad to report, not
only in Toronto but I understand aiso in Vancouver and other
cities want 10 bring up their chiidren in both ianguages.
I believe firmiy and passionatciy that Canada neyer was and
neyer wili be a country of one ianguage and one culture. I
believe that our existence and survivai in North America wiii
depend to a considerabie degree on how cieariy we have
established in our minds-and as a resuit of that in our lawsthe
essential quaiity and character inherent in Canada, the
concept of biiinguaiism, fromn which naîuraiiy fiows that of
multiculturalism.
3300 COMMONS DEBATES October 6, 1980
October 6, 1980 COMMONS DEBATES
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
The Constitution
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.
* (2020)
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
October 6, 1980 COMMONS DEBATES
COMMONS DEBATES
The Constitution
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
end. 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.
* (2030)
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 al] 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
3302 October 6, 1980
The Constitution
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 legisiative 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 legisiatures 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 formai more than real. The British parliament,
ail the statements of ministers of the Crown to the
contrary, has not made major changes to Canada’s constitution
except in response to formai 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 not
true.
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 formai 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 aul 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 ail 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”.
80088-64
October 6, 1980 COMMONS DEBATES 3303
The Constitution
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.
* (2040)
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 cach 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 tel] the provincesnot
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 aniending
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 governiment 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 goveriments. 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 sinaller 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 gencral 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
3304 COMMONS DEBATES October 6, 1980
October 6, 1980 COMMONS DEBATES
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 (M4r. Caccia) and the Minister of
Justice. Weli, Mr. Speaker, 1 trust the people. Every member
of this House bas to trust the people because that is how we
got here. You finaiiy have to put yourself before the judgment
of those from whom you are asking support. But there is a
question which remnains. Before 1 even get to section 42, which
is s0 onerous to us, there is the principle of the tyranny of the
51 per cent majority. People say the majority rules. Yes, that
is truc in pure democratie 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. Menîber: Auschwitz.
e (2050)
Mr. Epp: There is no question that in the Germany of the
I1930s, 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 aiso develop a tyranny of
the majority. On this basis-and 1 wouid like to go into
greater detail, but I do not have the time-I wouid like to refer
to a schoiar who bas 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 morais and that
is what we are dealing with in a constitution-become a
matter of averages. Yet they are absolutes.
Let us as members neyer forget that averages can be
manipulated and statistics can be used. i do flot wish to be
disparaging of the media or of my coileagues in the House, but
1 think ail of us recognize that we bave a certain abiiity 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
politicai leadership to convince a majority for the time that a
certain course of action were the right one? Before too may
days hence, vie wouid find that the majority was in fact simpiy
a hoilow victory to the detriment of everyone concerned. i say
to ail hon. members that when we get into committee we must
be careful about referendums because so often the minorityand
we are saying bere 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.
Aithough my leader bas spent a fair amount of time discussing
section 42, I think the reason we object to it bears
repeating. The problems arising from the unilaterai imposition
of the Victoria amending formula, 1 believe, pale against the
other formula outlined in section 42 and section 46 of this
The Constitution
resolution. It is a Catch 22 situation, or perhaps more aptiy
put, a “Catch 42” situation as it concerns the federai government’s
proposais.
This section bas received very little attention from federai
officiais, the media or hon. members, yet it couid fundamentaiiy
alter the future of our federai system. According to
section 42, the federai government by a simple majority in this
Parliament, can initiate a referendum on any constitutionai
amendment. If the federal government’s proposai 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 traditionai
provincial minority rights without even having consuited the
legisiatures, much iess having received their concurrence.
There is no doubt that this is an affront to the federai
system. There are those who have said, “Maybe section 42 is
oniy a throw-away bargaining position”. If it is, 1 say to the
government, “Throw it away”. I believe that if there is a
staiemate, the people shouid be consuited directiy, but oniy as
a iast rcsort. Section 42 does not make such a provision. In
fact, it can bccome an amending formula of the first order. As
1 have said, we want to patriate the constitution, but we do flot
accept the Victoria formula as mnodificd in the constitution and
we absoluteiy reject section 42.
i will say a few words on the Vancouver consensus and go
on from there. The Prime Minister bas frequentiy criticized
the Vancouver consensus because of its provision for opting
out. Yet, if an amendment must appiy to ail] provinces, it
would be the obligation of the federal and provincial goverfiments
to work out suitable compromises. That is tradition in
our country. The Prime Minister says that this formula would
resuit in a so-called checkerboard Canada. Personaliy, 1 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 caîl 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 flot say to us,
“Our system is perfect and if you do flot agree with it, we will
impose it anyhow”. That is flot how the system works.
There are other points which shouid be mentioned, for
exampie, 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 flot ihe case. Traditionaliy my party bas
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. 1 am not sure whcther 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,
October 6, 1980 COMMONS DEBATES
3306 COMMONS DEBATES October 6. 1980
The Constitution
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: Ail 25,000 of them.
Mr. Clark: Someone demeaned them by saying ail 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.
9 (2100)
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
aIl, 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 aIl 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 ail political parties from ail
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.
3306 COMMONS DEBATES October 6, 1980
COMMONS DEBATES
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 establish’ed 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
The Constitution
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.
* (2110)
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!
October 6, 1980 3307
COMMONS DEBATES October 6, 1980
The Constitution
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 1
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 cach 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. Fie scems 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 goveriment 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
COMMONS DEBATES October 6, 1980
The Constitution
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 ail. 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 ail of Canada, and
certainly no parliamentarian should be prepared to go along
with that issue and say he is doing a job for ail 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.
* (2120)
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 ail 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 bas 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 aIl 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 ail 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 ail 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 ail 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
October 6, 1980 COMMONS DEBATES
3310 COMMONS DEBATES October 6, 1980
The Constitution
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 a]l 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 corne 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.
* (2130)
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 naking 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 corne 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 nie will know that during the eight years
3310 COMMONS DEBATES October 6, 1980
COMMONS DEBATES
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 lcave 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 donc 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-
The Constitution
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.
* (2140)
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
October 6, 1980
3312 COMMONS DEBATES October 6, 1980
The Constitution
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 ils 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 1 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, interna] 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 magie 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. 1 hope the media will fully
reflect that. I think somebody said earlier today that the media
is being sonewhat superficial in this. That was not a criticisn
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 gel to the charter of rights. This is supposed to
be very attractive, as we heard yesterday, and as I arn 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.
* (2150)
I believe it is important for us to move eventually to an
entrenchment. I am not speaking against cntrenchment; 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
3312 COMMONS DEBATES October 6, 1980
October6, 1980 COMMONS DEBATES
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!
The Constitution
[Translation]
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 al] 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 somestimes heard politicians call these
conferences “circumferences”. I think that in the past few years
October 6, 1980 COMMONS DEBATES
3314 COMMONS DEBATES October 6, 1980
‘The Constitution
we have witnessed several such circumferences and lime has
corne for the federal government to show leadership in this
malter. 1 think we enjoy publie confidence. We enjoyed it at
the last election and we have it again in this endeavour.
Earlier 1 heard the member who spoke before me say that he
was afraid of ending up with a different Canada, If he has
corne 10 sit here 10 lct things remain as they are, il is fortunate
he belongs to the Progressive Conservative Party because what
we preciscly want, and tl is also why I have corne 10 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 10 making those changes and we will keep on
doing s0 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 projecî and the
Premier of Quebec went short of calling us traitors. Frankly, I
arn wondering who is the real traitor with regard to the
inlerests of French Canadians.
An hon. Member: And Canadians!
Mr. Lapierre: And C.înadians. French Canadians are part
of Canada.
I believe that the real traitor in this debate is certainly the
Premier of Qucbec who hides behind the smokescreen of
collective righîs 10 ignore ail] improvements made to individual
rights. Wc know that his policy was nol intended to serve the
individual inîcresîs and righîs of Quebeckers, but we believe
that Canada and Canadians have certain righîs 10 gain and we
are rcady 10 go ahead. That process might require more
intestinal fortitude but we are ready to take part in al]
discussions and I think that the debate that will be going on in
the next days in this flouse will demonsîrate our determination
10 act 10 the opposition and particularly to the Progressive
Conservatives who are the greaîest reaclionaries.
I read in the paper that the Leader of’ the Official Opposition
said that this proposaI did nol mccl the expectations of
those who voted no. Beware. 1 urge him 10 visit the province of
Q uebec and meet some people and as evidenced by polIs and as
he recognized himself in his press conference, he will sec that
his position did not reflect the opinion of the rnajority or the
consensus of Canadiarîs.
An hon. Member: He neyer visits the province of Quebcc.
Nir. Lapierre: MVay I call it ten o’clock?

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