Canada, House of Commons Debates, “Resolution Respecting Constitution Act, 1981”, 32nd Parl, 1st Sess (11 March 1981)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 8130-8152.
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THE CONSTITUTION RESOLUTION RESPECTING CONSTITUTION ACT, 1981
The House resumed debate on the motion of Mr. Chrétien, seconded by Mr. Roberts, for an address to Her Majesty the Queen respecting the Constitution of Canada. And on the amendment of Mr. Epp, seconded by Mr. Baker (Nepean-Carleton),-That the motion be amended in Schedule B of the proposed resolution by deleting Clause 46 and by making all necessary changes to the Schedule consequential thereto.
Mr. Gus Mitges (Grey-Simcoe): Mr. Speaker, when I called it ten o’clock last night, I was talking about the real crises in our country, such as family crises, family break-ups, high unemployment, inflationary prices and a continued lower standard of living which all Canadians are experiencing today in Canada. We should not be sidetracked in our efforts to solve these crises by fake constitutional crises that will not put one slice of bread on the table, build one affordable house for Canadian families lacking suitable accommodation, or put clothes on the backs of Canadians. These are the real crises to which Canadians want us to address ourselves, not this fake constitutional crisis which we are being forced to railroad through.
The people of Canada elected us in good faith to represent their wishes and aspirations and to help Canada and Canadians grow and prosper. However, in my estimation the government has shirked its responsibilities and duties and has not lived up to its mandate.
Surely, the people of Canada deserve better than to have their desires and aspirations relegated to the bottom of the pile in priority by a government which is so imbued and obsessed with its own importance and with trying to make its mark in history that it does not want to be concerned about anything else but the Constitution.
I believe that when future generations look back to this particular time in our history, they will look back with amazement, incredulity and wonderment that so-called intelligent men and women were really responsible for such a fiasco, one which could have been very easily prevented by the use of common sense and good will instead of the use of deliberate confrontational tactics by the government in all its deliberations regarding not only the constitutional resolution but many
other areas as well. Good will and common sense would have gone a long way toward resolving many of our national problems, achieving a better understanding and resolving our economic woes. It would have brought about a better understanding of the diverse cultures and traditions which make up our great country and far greater unity in our great country and its regions, from one end of Canada to the other.
Hopefully, when future generations do look back at us, they will look back more in pity than in disdain, although it will be hard for them to understand how their ancestors let such a fiasco get its start and get out of hand, progressing so far before the alarm finally went off. One thing about which I am certain is that it will make very interesting reading.
I could go into considerable detail regarding the many sections in the constitutional resolution with which I do not agree and which I believe should be changed. However, many of the changes which should be made in this resolution have already been emphasized quite well by numerous speakers who preceded me in this debate.
Having said that, I would be remiss in my duty as a member of Parliament representing all my constituents if I did not draw the government’s attention to an area in the constitutional proposal pertaining to legal rights, a subject which is very close to my heart. I refer to section 7 which states:
Everyone has the right 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.
As glowing as this section may sound, one aspect is missing. It does not in any way extend protection to the unborn foetus; the wording “Everyone has the right to life” pertains only to those who have been born and not to the unborn foetus. In other words, in the proposed Constitution a foetus is not legally recognized as a living person. This decision was handed down by the Supreme Court of Ontario, which defined life as beginning at birth. In essence, this could almost result in abortion on demand, which would increase quite substantially the present disgraceful abortion rate in Canada of 65,000 per year. The decision by the Supreme Court of Ontario could quite conceivably be concurred in by the Supreme Court of Canada, which would be an unspeakable disaster.
The people of Canada have replied, in numerous questionnaires, that the vast majority are against abortion on demand, but this is what we will have if the government does not act to change this section of the constitutional proposal to include, in unequivocal terms, the concession that a foetus is indeed a living person and should be protected in the same way and fashion as outlined for everyone else.
I believe that if the government enacts this change it will be giving a great service and will find itself in accord with a great percentage of the wishes and desires of the Canadian people who abhor the practice of abortion, as I and many of my colleagues in this House abhor it, Mr. Speaker. Indeed, I have no problem in classifying abortion as premeditated murder, unless the life of the mother is honestly at stake.
So I ask the government again, Mr. Speaker, to give thought to protecting the lives of those who are in no position to speak for themselves. Foetuses are human beings, Mr. Speaker. It is up to us to protect them. Let us protect them, Mr. Speaker, for all time guaranteeing their status and rights and by enshrining their recognition and rights in our Constitution. As fellow human beings, Mr. Speaker, they have the right to life, peace and happiness and the Constitution will guarantee their rights against any possible changes or contemplation of changes in the future.
I again implore this government-and I cannot emphasize this too strongly, Mr. Speaker-to show compassion and humanity and change this section of the proposed constitutional resolution. This will save thousands upon thousands of human lives which today, without thought and without regard, are being destroyed for ostensibly nonsensical reasons. This act is perpetrated by so-called medical therapeutic abortion committees which in most cases have shirked their responsibilities by taking the path of least resistance and have rubber-stamped their approval for abortion, which I firmly believe makes them accessories to murder.
If they have a conscience at all, Mr. Speaker, I believe they will regret to their dying days their part and role in the wholesale slaughter and murder which they initiate on a continuing basis as members of abortion committees in the great majority of our hospitals across Canada. If the government decides to exclude the unborn from the protection of the law, Mr. Speaker, and to entrench this exclusion in its charter of rights, then that is done in full knowledge of its abominable consequences. Let there be no doubt about it, Mr. Speaker; legalized abortion is in fact the legalized killing of human beings, even though these human beings have not been born.
It is no secret, Mr. Speaker, that the 1969 amendment to the Criminal Code which allows an abortion to take place for reason of mental health or where the life of the mother may be endangered has proved to be a failure. The therapeutic abortion committees set up to police this amendment, Mr. Speaker, rubber-stamp practically every case for abortion that comes before them, with the exception of pregnancies which are too far advanced.
On the other hand, Mr. Speaker, there are many doctors who resent the brazen killing of life by some of their colleagues and who have spoken out against this abominable practice. They should be greatly commended.
Yes, Mr. Speaker, it is a terrible travesty that, in spite of ten years of outcry and the killing of more than half a million unborn lives, the government up to now has proceeded to ensure that this process be made irreversible by incorporating it in the proposed Constitution. I am again asking the government, Mr. Speaker, to reconsider this terrible injustice and change the proposed Constitution to include fellow unborn humans so that they will have the same protection as other human beings.
I would like to quote from an article in the January 26, 1981, edition of the Western Catholic Reporter which reads as follows:
All people of any religion or non-religion should stop voting for any politician who condones legal abortions no matter what the party.
We do not vote for known crooks no matter how brilliant they may be.
We do not vote for those who condone legalizing violence against unborn life, no matter how many times they appear at church.
Still quoting the article, Mr. Speaker, it continues:
If you want to know which MPs accept legalized abortion, watch for the coming vote on the charter.
And as a final note of confirmation of the government’s intentions, I will quote this piece of evidence from the same periodical:
Upon receipt of the text of Mr. Chrétien’s amendments to the charter on his speech of January 12, the following note was found among the section by section explanations: Section 15.1 “‘everyone’ is replaced by ‘every individual’ to make it clear that this right would apply only to natural persons” –
Thus the intention of the government is perfectly clear. It docs not intend to do anything for foetuses, unless it does a complete change of heart.
I fervently hope, and many Canadians hope as well, this will indeed be the case, Mr. Speaker, that the government will have a complete change of heart and reverse its attitude regarding unborn human beings and guarantee their rights as well in the proposed Constitution.
I fervently hope, and many Canadians hope as well, this will indeed be the case, Mr. Speaker, that the government will have a complete change of heart and reverse its attitude regarding unborn human beings and guarantee their rights as well in the proposed Constitution.
I fervently hope, and many Canadians hope as well, this will indeed be the case, Mr. Speaker, that the government will have a complete change of heart and reverse its attitude regarding unborn human beings and guarantee their rights as well in the proposed Constitution.
Surely, Mr. Speaker, not enshrining property rights in the proposed Constitution is a glaring omission, and the government must admit it is a serious error of judgment on their part to omit this very important right from the proposed charter of human rights. Such an omission, Mr. Speaker, will have serious consequences for a very large section of our population. Such an omission, Mr. Speaker, has to be rectified, and property rights must be included in the Constitution. To ignore this, Mr. Speaker, could be considered a direct affront and disservice to all the people of Canada.
If the government really believes in the democratic principle, it will know that it was elected to serve the people and not the other way around. That would be the undemocratic way, with the people subservient to the government. That is some- thing which Canadians abhor and disdain and they will not tolerate it for long.
Mr. Mike Landers (Saint John): Mr. Speaker, I welcome the opportunity to participate in this historical debate and to read into the record a letter I received from a constituent whose view of Canada is totally compatible with my personal view. The letter, dated May 16, 1980, reads as follows:
You may remember that we met several years ago before an election when you were touring the Ridgewood veterans wing of the Saint John regional hospital.
I am writing to you as my member of Parliament from Saint John, New
Brunswick, in hopes that you will do everything in your power to expedite
negotiations between the federal government, the other provinces and the
province of Quebec as soon after the referendum is over as is possible. I am assuming that Mr. Claude Ryan’s forces are going to be successful. And I feel
very strongly as does my family that we not only want Quebec to stay in
confederation, but we want them to know that they are as equal as any other
Canadian in every way, shape and form. We want them to know that as a founding people of this nation that their culture and aspirations can be met and
protected in our confederation of Canada. We want them to know that it
enhances our culture and will make for a stronger Canada if their hopes and
aspirations can be met within our union. There is no need for any bad feeling
among anglophones and francophones. This country has plenty of room for us all
to flourish in peace and prosperity.
I had the good fortune to study medicine at the University of Ottawa in the
late 40s and early 50s-then lo practice among the Acadians in Shediac, New
Brunswick for five years. They are wonderful people and it is my hope that they will be able to develop in every way in a united Canada.
I am sending a copy of this letter to Mr. Ryan so he will know the feelings of
the Creamer family of Saint John, New Brunswick. While we do not intend to
sell our own English heritage short we do not intend to sit idly by and watch our French Canadian cousins lose all the things they hold dear.
Yours very truly,
(Dr.) Roy Creamer
What I would like to ask Dr. Creamer to do is keep writing.
Mr. Speaker, not all of my constituents are as fair and broadminded as Dr. Creamer. The worst comment and when I say worst, I mean the slimiest comment I have heard since the introduction of the resolution on the Constitution in Parliament-was from a constituent who, to protect the narrow- minded and ignorant, shall remain anonymous. His comment was to the effect that anybody supporting the resolution was, “a French Canadian papist”. The only reason that I would condescend to even repeat such a dastardly remark is to point out that there are some prominent New Brunswickers whose ancestors would be quite surprised to hear their descendants referred to as “French Canadian papists”.
Three New Brunswickers who have given solid support to the resolution on the Constitution come to mind immediately. Imagine the look on the faces of the English protestant ances- tors of Premier Richard Hatfield to hear him being referred to in the manner previously described. Imagine the look of astonishment on the faces of Gordon Fairweather’s English Angli- can ancestors, or the look on the faces of the British Anglican ancestors of the hon. member for Moncton (Mr. McCauley).
Turning to the substance of the resolution, a Canadian charter of rights and freedoms will guarantee that Canadians are entitled to the following rights and freedoms with respect to all matters of federal, provincial and territorial responsibility: fundamental freedoms, which include freedom of con- science and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of
information, and freedom of peaceful assembly and of association.
With respect to democratic rights, which comprise the right to vote in the election of the members of the House of Commons and of a legislative assembly, the charter will include the right to stand for office in either of these institutions; the requirement that no House of Commons and no legislative assembly continue for longer than five years except in extraordinary circumstances; and the requirement that there be an annual sitting of Parliament and of each legislature.
With respect to mobility rights, the charter will enshrine the right of every Canadian to move freely from one province to another to establish a residence and to seek a job anywhere in Canada, as well as to enter, remain in or leave the country.
Regarding minority language educational rights, the charter will provide that citizens of the English-speaking or French speaking minority of a province have the right to educate their children in that minority language, wherever numbers warrant.
Finally, respecting legal rights, the charter will include the right to life, liberty, and security; the right to equality before the law; protection against unlawful search or seizure, detention and imprisonment; protection against denial of counsel, undue delay of trial, and cruel or unusual treatment or punishment; and the right to the assistance of an interpreter. Also included are non-discrimination rights, which protect citizens from discrimination on the basis of race, national or ethnic origin, colour, religion, age or sex.
Hon. members may ask themselves why there is a need to entrench rights of Canadians in a Constitution? As a Canadian first, but as a Canadian of Irish Catholic descent, I am all too familiar with the British penal laws which reduced Irish Catholics to chattel status without human rights. Under these penal laws, no Catholic was permitted to own land; no Catholic was permitted to vote; no Catholic was allowed to hold public office; no Catholic was allowed to work in the civil service; no Catholic was allowed to own a weapon; no Catholic was allowed to own property of value over 5 pounds; no Catholic was allowed to be educated in or out of Ireland; no Catholic could earn more than one third of the value of his crops; and no Catholic was permitted to practice as a lawyer, doctor, trader or professional. The Catholic religion was largely forbidden, with no facility to train new priests, and foreign educated priests were outlawed. Ali Catholics were compelled to pay a tithe to the Anglican protestant church. This brought on secret masses, and priests, returning from the continent, were hunted down, hanged, drawn and quartered in the diamonds of Ulster townships. We all know what long-lasting effects these dastardly laws had, and are still having in Ireland today.
If the joint resolution before the Canadian Parliament were taking away rights the way the penal laws did, then I could understand why the Right Hon. Leader of the Opposition (Mr. Clark) would be opposed to it.
Some hon. members opposite may still think that the penal laws were appropriate. And no doubt, there may be a fringe element of Vancouverites who believe that no Canadian of oriental extraction should be permitted to own land. There may be a small ill-advised segment of Albertans who believe that no native person should be permitted to vote.
If one believes the media coverage, there seems to be a minority of Torontonians who believe that no Pakistani should be allowed to hold office. Some misguided Quebec separatists may believe that no anglophone should be allowed to work in the Quebec public service. Yes, there may even be the odd Haligonian who might believe that no black should be allowed to own a weapon. I know that hon. members may find it hard to believe, but there may even be a closet bigot or two in the fair city of Saint John who might believe that no francophone should be allowed to own property over a certain value.
It is because extreme right wingers continue to reside in Canada, or, as the hon. member for Winnipeg North Centre (Mr. Knowles) refers to them, red-necked yahoos-although no doubt they are few in number-that we are entrenching human rights and freedoms in our new Canadian Constitution.
In closing, may I point out that a substantive measure in the resolution, of the utmost importance to the Atlantic provinces, provides that the Parliament and Government of Canada will be committed to the principle of making equalization payments to the poorer provinces. Both orders of government will be committed to promoting equal opportunities for Canadians, furthering economic development to reduce disparities, and providing essential public services at a reasonable level to all Canadians.
Mr. David Orlikow (Winnipeg North): Mr. Speaker, I rise to speak on this important question because I believe that passage of this proposal, patriation of the Constitution, and entrenchment of a bill of rights will have important beneficial effects on the people of this country. I say this, however, making it quite clear that I have not been flooded with masses of letters, telephone calls or personal representations on the subject, as so many members in this chamber have said they have.
Mr. Paproski: Talk to Nystrom.
Mr. Orlikow: It has become apparent during the debate which has gone on in this chamber since last October that this bill and the support or opposition to it cuts across all party lines. As I listened to some of my Conservative friends, one would think that, because the New Democratic Premier of Saskatchewan opposes the position taken by the majority of the New Democratic members in Parliament, we are the only party in which there are divisions on this subject.
I point out to my Conservative friends that the Conservative premier of the largest province of this country, namely Ontario, supports the proposal before Parliament and is in opposition to the position taken by almost all of the Conservative members of this Parliament. i point out for their information, in the event they do not know, that the leader of the Liberal Party in Quebec, Mr. Ryan, who will probably be the next premier of Quebec, opposes the constitutional proposal we
are debating now which was put forward by the Liberal government.
It should not surprise anyone to learn that there are some differences of opinion in our party and that the Premier of Saskatchewan opposes the constitutional package before us. I want to say to members of this House that in supporting this constitutional package before us, we are saying that when this is passed, it will bring important improvements to the people of Canada. We are saying also that this proposal is not perfect. We are saying that had we been drafting the proposal, were we the government, it would have been considerably different. I am certain that it would have had in it some provisions about spelling out the economic rights of the people of this country, for instance, the right of every person in this country, who wants to and is able to work, to have a job so that we do not have the kind of unemployment we have today.
In supporting this proposal and the idea that our Constitution should be patriated, and in supporting the idea that in the Constitution there should be an entrenched charter of rights, we are following the policies laid down by our party and by the CCF before it. The first convention of the CCF was held in Regina in 1933. At that convention, the party adopted a manifesto which has become well known in Canada as the Regina Manifesto. I want to put on the record some provisions from that manifesto because I think people are entitled and want to know that our position is right in line with the position we have followed for many years. Let me quote from the Regina Manifesto of 1933 as follows:
— the amendment of the Canadian Constitution, without infringing upon racial and religious minority rights or upon legitimate provincial claims to autonomy, so as to give the Dominion government adequate powers to deal effectively with urgent economic problems which are essentially national in scope;
The convention resolution from which I just quoted looked to the patriation of the Canadian Constitution and the entrenchment of a section spelling the fundamental freedoms of the people while seeking “collaboration of the provinces to incorporate them in the Canadian Constitution”. All the party resolutions urged that provincial consent for this change be sought, but never called for unanimous agreement for patriation or any other aspect of constitutional change.
However, it has become obvious that a majority of the provincial governments are now, and are likely to be in the foreseeable future, opposed to entrenchment of the bill of rights in the Constitution. If we have to wait until we have approval from the provinces, we are not likely to achieve either patriation of the Constitution or an entrenched bill of rights, for which our party worked for so many years, in the foreseeable future. If we are to patriate the Constitution and get a bill of rights, much as we would have preferred to have it done in co-operation with the provinces, we have to do it unilaterally.
Let me give another example from Frank Scott, one of the founders of the CCF, former dean of the law faculty at McGill University, a renowned expert on the Constitution and one of the leading civil libertarians during the past 40 to 50 years. He has spoken and written frequently on the question of bringing the Constitution back to Canada and on the desirability of entrenching the bill of rights in the Canadian Constitution. It is in part because of the arguments that he has advanced over the years that I am so enthusiastic in my support for both the patriation of the Constitution and the entrenchment of a bill of rights. Let me quote a couple of paragraphs from what Professor Scott has written:
The insertion of a bill of rights in our own Constitution, and support for the proposal of an international bill of rights, seem to be logical parts of a good domestic and foreign policy for Canada. Perhaps a growing recognition of the international importance of cultural liberty for minorities will help us to reduce our internal conflicts over such issues.
In the Canadian Bar Review, 1949, he wrote:
To define and protect the rights of individuals is a prime purpose of the Constitution in a democratic state, in Canada today many people are feeling that this purpose is not being adequately achieved . .. it is not surprising that natural law concepts are being re-examined and put forward in the form of a bill of rights for Canada, designed to shield the individual from abuses of governmental power, while at the same time a more positive role for the state in securing the economic basis for personal freedom is also being stressed.
I respect the views of those who oppose entrenching a bill of rights in the Constitution. Some who take that view do so because they have been impressed by the fact that in Great Britain people have had freedoms and property rights as much as in any democratic country without any bill of rights. Their rights are protected through common law. They were successful in protecting the rights of their citizens for hundreds of years.
In recent years, several million people have come to Great Britain from former colonies, mostly non-white people. There are reports almost every day in the newspapers of prejudice and discrimination against those people. I am certain that those people now living in Great Britain have come to realize that they need protection from an entrenched bill of rights such as the one we are discussing at the present time.
Let us look at the experience in the United States, a country with a large and diverse population which includes people from many different racial, religious and ethnic backgrounds. For many years they had open, and indeed admitted, legal discrimination. There were segregated schools, buses and restaurants. Between two and three million non-white people living in the south and southwest were not permitted to vote. Their Congress was not able to deal with those problems because of the divisions in that country. Discrimination in those and other fields in the United States was not banned by law until the United States supreme court dealt with some of the problems. The United States supreme court outlawed discrimination because their constitution and interpretation of their bill of rights showed that that kind of discrimination was illegal.
The first major decision handed down by the Supreme Court was reported in The New York Times on May 18, 1954, headlined “High court bans school segregation 9-0″. The story began:
The Supreme Court unanimously outlawed today racial segregation in public schools.
In explaining its decision, the court found that:
The fourteenth amendment provides that no state shall -deny to any person within its jurisdiction the equal protection of the laws”. The fifth amendment says that no person shall be deprived of life. liberty or property without due process of Iaw”.
That is the kind of provision which is in the charter of rights and constitutional proposaL before us.
Some Canadians say we do not need this kind of law because we have never had discrimination. Those who say that have very short memories. I will not repeat what other members have already said regarding the discrimination we have had in this country. I will just mention a few examples. There was the padlock law in the province of Quebec in the 1930s; the expulsion of Japanese Canadians from British Columbia during World War II; the attempts to gag the press by the Social Credit government in Alberta; and the use of the War Measures Act by the Trudeau government in 1970 to arrest and incarcerate about 450 citizens of Quebec in October, 1970, few of whom were ever charged in court, and none, to my knowledge, ever convicted.
If we had had a charter of rights in our Constitution, those who had been incarcerated could have gone to court and demanded that they be set free. It is my beiief that an entrenched bill of rights would give a substantial degree of protection to Canadian citizens, even when they hoid views which are unpopular to the majority of the people of Canada.
It is easy to grant democratic rights to those people who agree with us. That is easy and comfortable. But, it is a great deal more difficult to grant those rights to people who disagree with us, particularly in times of emergency when, as sometimes happens, almost everybody agrees that something should be done. That is when the few who disagree reaîly fe the wrath of governments.
I want to deal with the proposals before us at the present time. In my view, what we are dealing with is substantially different from the proposaL the government made last October, different because of the agreement of the government, after a great deal of pressure, to allow extensive hearings of the committee on the constitutional proposaLs; because of the many representations made by dozens of organizations in which they outlined the inadequacies, as they saw them, of the resolution as originally proposed; and because of the work of many members on the committee who were not satisfied with the original proposal but who thought that, if they onîy opposed it and did nothing else, the package would probably pass in an imperfect manner. The groups which made representations and the members of the committee who wanted seriously and honestly to improve the package did a great deal of work, as a result of which it has been substantially improved.
i am told that over 50 amendments have been proposed. I understand from my reading of them that 49 improved the package while only one is a retrograde step. Let me deal first with the retrograde step and then with a few of the improvements.
The retrograde step in my view, and the view of members of this party, is the elimination of that clause in the original proposal which would have Limited the authority and power of the Senate. Members of this Parliament will not be surprised when I say that, along with other members of this party, I believe the Senate should be eliminated or that we can do very well without it.
Some hon. Members: Hear, hear!
Mr. Orlikow: Having that view, I support any idea which would reduce the power and authority of the Senate. To say the least, I was unhappy with the decision of the government to take that clause out of the original proposal. We opposed that removal and, if we have an opportunity, I am sure we will move an amendment on this subject.
We must be clear on one thing. Even though that clause has been eliminated, the effect is that if we pass this constîtutional proposal, the Senate will have no more power than it has had until now. After the constitutional proposal is passed, before any amendment to the Constitution can be put into effect, it will require, as has been the requirement up till now, the approval of both Houses of Parliament. That means, to my regret and the regret of members of my party. that any such amendment will require the approval of the Senate and the House of Commons.
Some people suggest we will never get this situation changed. We have been through crises and miner incidents in the past as a result of the Senate expressing its disapproval regarding some things we have done, but eventually the Senate has always gone along. I have no doubt that the Senate, for which I have little use, would bow to the will of the people of Canada, given a substantial and overwhelming majority of consensus on the part of Canadians as expressed through their members of the House of Commons, even if it meant that the Senate would be eliminated.
Let me mention just a few of the improvements in the constitutional package before us. First of all, there is the amendment with regard to resources and the power of the provinces to manage and direct those resources within the provinces. The BNA Act gave the provinces the right to their own resources. Recently, however, judicial decisions based on a narrow interpretation of the law have overturned provincial attempts to manage and tax their resources for the general benefit of the people in the provinces. These decisions have blocked the provincial right to raise new revenues from resources and regulated their right of development, especially when those resources were being sold outside the province or provinces.
I will not refer in any detail to the court decisions made in several instances in respect of the province of Saskatcbewan, except to say that at least they have created an area of uncertainty for the provinces. The resources amendment now included in the package gives important powers and reassurances to the provinces. I asked the attorney general of the
province of Saskatchewan whether the resources amendment which we had proposed, and to which the government had agreed, represented an improvement to that province, and he assured me lit did.
I am from the province of Manitoba which, as far as we know, does not have any resources with great world demand. We are increasingly a have-not province. Believing, as I do, that all the people of Canada, regardless of where they live, are entitled to certain minimum standards in the provision of basic services, I accept the idea that any federal government must have the financial ability to help those have not provinces. My province is a have-not province. Therefore, I am happy the government agreed to amend the original clause dealing with equalization benefits, making clear the reference to equalization payments to the provinces.
Originally, the amendment would have allowed the federal government to bypass the provinces and pay equalization benefits directly to individuals. This would have endangered a major source of revenue to a poorer province such as Manitoba. I am, therefore, happy the government agreed to strengthen this equalization amendment. I do not want the people of my province to be dependent on the good will and charity of the Premier of Alberta or the Premier of Saskatchewan. I want the federal government to have the power and authority to help people in all parts of this country.
I am particularly interested in the charter of rights. This embodies a principle of major importance to the people of this country. I was happy to hear what Professor Walter Tarnopolsky of the Canadian Civil Liberties Association had to say when he appeared before the committee dealing with the Constitution. Let me quote him in part. He said:
-without a bill of rights, the only protection for minorities is the good will of the majority. No doubt people, like the Japanese Canadians, native people, Jehovah’s Witnesses, and others could give us examples of how the majority. at one time or another, did not recognize them as human beings equal in dignity and rights.
Then he went on to say:
-particularly for opposition politicians. reliance on a written bill of rights is a much more effective weapon to oppose legislation which is deemed to be excessively oppressive or arbitrary. than a mere claim the legislation is oppressive or arbitrary.
So when we look at the amended package, here is what it provides in the way of fundamental freedoms:
(a) freedom of conscience and religion;
- b) freedom of thought, belief. opinion and expression. including freedom of
the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
I would remind hon. members that this clause is very much like the one adopted by the 1961 NDP convention, so my enthusiasm for it is not surprising.
Very impressive representations were made to the committee by representatives of the disabled. A representative of the Coalition of Provincial Organizations for the Handicapped told the committee that:
– of most importance to disabled people in Canada is that disability or handicap should be included as grounds protected from discrimination under Section 15 (1) and we recommend this amendment to you.
The charter now says.
15 (1) Every individual is equal before and under the law and has the right to equal benefit of the law without discrimination and, in particular. wîthout discrimination based on race, national or ethnic origin, colour. ses, age or mental or physical disability.
In other words, the committee accepted the proposal of the representatives of the handicapped.
As for women’s groups, the then president of the Canadian Advisory Council on the Status of Women, Doris Anderson, told the committee:
The Canadian Advisory Council on the Status of Women supports entrenchment in the Constitution of a charter of rights and freedoms which guarantees women’s human rights to equality.
As I have already said, Section 15(1) states there shall be no discrimination on the basis of sex.
Mr. Speaker, I am particularly interested in the discussions in committee with reference to native people. I have been interested in the subject for many years and, of course, large numbers of native people have moved to Winnipeg in recent years. I was looking at a brief sent to the Minister of Indian Affairs and Northern Development (Mr. Munro) just a couple of weeks ago by the Winnipeg Indian Council and they estimate that there are 12,000 status Indians in Winnipeg. The hon. member for Winnipeg North Centre (Mr. Knowles) and I probably have more status Indians in our constituencies than does any other member. The conditions of native people in this country are a disgrace and a disaster.
I would quote from a book entitled “Indian Conditions: A Survey 1980” put out by the Department of Indian Affairs and Northern Development, which was sent to Members of Parliament. In that book you will see that the mortality rate for native people one to four years old is 3.1 per thousand, and for non-Indians it is 0.8. The rate of suicide is almost three times the national rate. In 1974, 55 per cent of Indian reserve population were receiving social assistance as compared to a national rate of 6 per cent. In 1977, one in three Indian families on reserves lived in crowded conditions. I could go on but I think hon. members who are interested know what the situation is.
The rights and freedoms of Canada’s native people were not included in the original constitutional package. Very strong representations were made by native groups, status and non-status Indians, to all parties represented here and to the constitutional committee. The president of the National Indian Brotherhood, Delbert Riley, said this to the committee:
We are opposed to any amendment of the Canadian Constitution whîch affects our special constitutional position. wîthout our consent. The Royal Proclamation of t1763 provided that constitutional or political change would occur by a process of negotiation and agreement. That, to us, is a fundamental constitutional principle, and one that should be recognized in any amending formula.
I do not have to tell hon. members of this House how much discussion there was on that question, or how reluctant the
government and many members were to do that, and yet the charter now includes the following:
The guarantee in this charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.
My colleague, the hon. member from Nunatsiaq (Mr. Ittinuar), moved the following amendment which was accepted unanimously by the committee:
Rights of the ahorigi nal peoplea of Canada:
33(1) The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this act. “‘aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.
The inclusion of those amendments is of tremendous importance to the native people of this country. We have seen in many parts of Canada provincial hydro organizations building dams and power stations, flooding land on whîch native people have lived for hundreds of years and doing it almost unilaterally without any real agreement, certainly no legal agreement, with the native people concerned.
Now, I do not say that because of these clauses the problems of the native people are automatically solved, but when differences arise between native people and government or private organizations, they now have a clause in the Constitution which they can use in negotiations, and if negotiations are not successful, they can use this in testing their rights in the courts. I say for that reason alone they are worth while.
In dealing with multiculturalism, Mr. Speaker, I am not going to try to emulate the eloquence of the hon. member for Dauphin (Mr. Lewycky) yesterday. I represent what has been called an ethnic constituency because we have members of almost every racial, ethnic and religious group in this country. Apart from Anglo-Saxons, we have Ukrainians, Poles, Czechoslovakians, Jews, Russians and Germans, in the thousands. In the years since the end of World War II, we have had people coming from Portugal, The Philippines, Italy, Greece, China, Hong Kong, the Caribbean, Africa, India and Pakistan.
An hon. Member: What about the people from Sweden?
Mr. Orlikow: If I have omitted any groups, I apologize. I am of ethnic origin. My father came to this country 75 years ago. He was 14 years old then, and he went to work in order to brîng the rest of his family here. He did very well in this country; he was proud of the fact that he had never gone to school in Canada but was able to send three sons to university. I know, as he knew, that for many, many years ethnics were considered second or third-class citizens.
It is not many years ago that ethnics were not able to get work in department stores in Winnipeg and in most other cities. It is not many years ago that one would not find ethnics working in Canadian banks. It is not many years ago that some of our universities had quotas; only certain groups could get into medical college and only certain numbers. That prejudice and discrimination is disappearing, but it has not gone completely. One has only to walk around my constituency or any other constituency to see the buildings owned and operated by varîous ethnic groups and to see how they change as the population moves.
Ethnic groups are very proud of the way in which they have been able to maintain and develop the cultures and languages they brought with them to this country. They recognize, as the spokesman for the Ukrainian Canadian committee said before the constitutional committee, that there are two official Languages, English and French. They are proud of the fact that they have been able to maintain, promote and build their cultures and languages. It was made clear by the spokesman of the Ukrainian Canadian committee that the inclusion in the Constitution of the section which spells out the multicultural background of the country is an important recognition of the fact that they are first-class citizens. I welcome that section.
I should like to refer to one more section in which I am particularly interested, the one which deals with the legal rights of Canadian citizens and their rights regarding search, seizure, detention and imprisonment. The original resolution indicated that everyone has the right not to be subjected to search or seizure except on grounds and in accordance with procedures established by law.
I have already referred to what was done under the provisions of the War Measures Act. Many civil liberties groups were very concerned about the freedom it would give police forces as it was then written, so they welcomed the amendment which restricted the following clause:
Everyone has the right not to be arbitrarily detained or imprisoned.
There have been some improvements in the constitutional package which I think have made it much more effective than when it was brought forward in October of last year. I am happy to support this constitutional proposal because of the improvements that have been made, because it brings the Constitution back to Canada, and because it entrenches a bill of rights which is of tremendous importance to the people of Canada.
Some hon. Members: Hear, hear!
Hon. Ron Huntington (Capilano): Mr. Speaker, I will try to make eight basic points which concern me about the constitutional resolution. One thing which perhaps worries me more than anything else is the fact that I consider it a threat to our basic structures which protect our freedoms. Since Bill C-60 was tabled in the Thîrtieth Parliament, I have advised my constituents of my concern; I sent them an extensive riding mailer in July, 1978. I have seen nothing in the debate and in the proceedings of the committee which has dealt with the resolution package to change my opinion.
In my opinion, there is no democratic mandate for this resolution. I believe it is changing our style and form of
government. Where in the rhetoric of the last election campaign did Canadian people, even those voting in Quebec and Ontario, give the Liberal Party of Canada a mandate to change the Constitution unilaterally through the Parliament of Westminster; to emasculate the powers of western provinces so that the population centres of Ontario and Quebec could control western resources, making the west a colony forever; to expropriate and nationalize the energy industry as it is doing with its energy policy; to change the parliamentary procedures in place to protect people from excessively centralized powers which can only lead to an executive form of democracy: to entrench a charter of rights which contains questionable wording and has serious omissions?
Where, in fact, was the Prime Minister (Mr. Trudeau) in the last election on these very issues? His handlers were allowing his body to be seen, but his thoughts and ambitions were well hidden from public scrutiny and debate. The Liberal Party of Canada, the party of entrenched power at any cost, at any level of morality-one year ago it was 18 cents-are now playing games with structures affecting our basic freedoms. With this constitutional resolution, the Liberal Party of Canada, in my opinion and in the opinion of other colleagues who have spoken, is fanatically seeking to achieve power objectives before the public can express its will in a democratic fashion.
This is the reason for time allocation, for the threat of closure and for the great rush to put this matter through the legislative processes before July 1, 1981.
They love to say that it has been in the process of negotiation for 53 years.
Mr. Pinard: Fifty-four years.
Mr. Huntington: I am now told that it is 54 years. They do not tell us that in those 54 years it has been discussed for approximately 48 days at the official level, or less than one day a year. They do not tell us that the extremely important and dangerous entrenchment package was not part of the discussions over that period of time. They try to belittle the fact that elected representatives of the people are worried about issues which were not part of those negotiations. They do not tell us why they want to entrench aspects which go beyond the protection of our basic freedoms. Rather, they work on a shallow perception of a docile population. They do not tell us why they are removing the right to property; they sneak it into the terminology.
The constitutional resolution is, by all the rules and precedents of a representative monarchial parliamentary democracy, illegal because it is a coup d’état. It changes the very form of our government.
The hon. member for Surrey-White Rock-North Delta (Mr. Friesen) in his speech on February 19 and 20, as reported at pages 7499 and 7581 of Hansard, ably pointed out the following:
The Liberal government is giving the citizen rights. It is now telling the citizen what he or she can do.
I urge those members who have not read his speech to do so. This Liberal party charter assigns rights in the same manner and employs the same language as communist charters. As any thinking person knows, rights assigned and given by rulers can also be denied and taken away by rulers. I see an hon. member opposite shaking his head. I suggest that hon. members opposite take off their blinkers, get out of the tunnel and open up their minds to what they are doing to this country.
The U.S. constitution, on the other hand, comes from the citizenry, and the powers of government are by the people, for the people. It is not a government of the majority telling them what their rights will be.
As my colleague, the hon. member for Surrey-White RockNorth Delta said as reported at page 7519 of Hansard for February 20, 1981:
The government is presenting a proposed charter which purports to give rights to citizens. It is presenting an illusion; it is a fraud. It is not entrenching the rights of citizens; it is entrenching the power of the state.
In my opinion, the people of this great country had better wake up and shake off their apathy before it is too late. The priorities in this debate are not in order. Apart from economics, our national problem is regionalism. It goes right through our country; it is in our cities and our provinces. Federally, the structure of our Parliament does not address this problem, but rather creates it.
Before this resolution is passed, it is my belief that we should discuss the form and structure of our government. The structure of our present government needs amendment. The British parliamentary form of government has great strengths and great weaknesses. Its strengths lie in the fact that it is of a very slow and cumbersome nature. It acts like a huge sponge which absorbs the forces of change within a big, cumbersome and complicated society. It absorbs these forces, and down through the ages it has been able to protect man’s freedom better than any other form of government yet devised. This House turfs out those of us who fail to continue to relate to our constituents on the emotional level, and that is one of the great strengths of the system. It allows us, as it should to debate the great ideologies of change of our times.
A key principle and an aspect that is not widely understood is that we are a monarchial parliamentary system. Therein lies the power to demand delay for more mature thought on these forces of change. It is during national crises of arrogance and lawlessness that constitutions are tested. If those constitutions fail-and history is full of examples-nations are destroyed. The power to demand delay for more mature thought has to exist, which is most desirable and in the public interest since governments with parliamentary majorities which have been too long in office have a natural human tendency to abuse power and, perhaps, to go beyond constitutional limits
Under the royal prerogatives, the sovereign has four instruments with which to procure this essential element of freedom. It has the right to veto legislation, the right to dismiss a government, the right to dissolve Parliament, and the right to
order a general election. Had the Italian constitution allowed the King of Italy these powers, the world might have been spared the fascist regime of Mussolini. It should be voted that in all countries of the former British Empire in which the monarchy has been replaced with some other head of state, countries such as South Africa, India, Pakistan, Ghana, Nigeria-and I ask: Is Canada the next?-there has been a steady decline in freedom from arbitrary government, in the application of due process of law and in respect for the Constitution.
I remind you, Mr. Speaker, that the people under these regimes enjoy markedly less security, both psychologically and materially. I say this in all sincerity, since I was brought up to understand that when I uttered the prayer “God save the Queen” I was, in fact, asking God to help us govern ourselves better. Yet we find today not only reference to the Crown being minimized in Canada but even reference to God being struck from the proposed Constitution by the socialists. I am not one to run and stare at the Royal Family, but I am a Canadian who knows from experience how delicate and precious our freedom is. I know from history how it is earned and how easily it is lost through apathy and indifference. I say to colleagues and fellow citizens: please, let us understand the safeguards which underlie the foundation of our freedom before we carelessly toss it all away.
On the other hand, I must say that the structure of the British parliamentary system has failed us and other former members of the Commonwealth because it represents centres of population. It does not carry the checks and balances necessary for less populated regions to feel and remain a part of the whole. Bangladesh is a recent example of this. The same is also happening in Canada today.
In Canada, Parliament is controlled by the province of Quebec with its 75 seats in this House, and the swing power is in the province of Ontario. The rest of us in the outback regions of this land have the feeling that we really do not matter. The successful strategy of the Liberal Party is to play to the Latin vote in Canada. In every federal election, the Liberal Party starts with 100 Liberal seats out of 282. The other regions, races and ideologies within the country, struggle to overcome that handicap.
To new Canadians who came to this country to participate in its freedom, its opportunities, its welfare benefits and its historical adherence to the principle of private property, I say: beware, new Canadians, of the propaganda to which you are being subjected. If you doubt that this resolution on the Constitution is nothing more than a vehicle to socialize this once proud country, just look at the National Energy Policy which plays one region against another, nationalizes industries under the guise of Canadianization, and has yet to address the problem of oil self-sufficiency within the land.
In my opinion, we in this country are dangerously close to one-party rule. The arrogant audacity of this resolution tells us that we are a frustrated and confused people; we are alienated, when we once had a great sense of nationhood; we are now divided, and our sense of nationalism has been deliberately removed from us over the last 15 years. We are being told that there is racial antagonism in the land; we are changing our form of government without full comprehension of what is ahead; and we are dangerously regionalized. Surely within these issues lies the challenge which must be resolved if, once again, we are to become a strong federal nation.
Our parliamentary structure serves only the population centres, for that is where political power is rooted. We understand that. Our Senate is not structured, or used, to give regional balance. Therein lies one of our failures. Of course, I disagree with the hon. member for Winnipeg North Centre (Mr. Knowles) who wants to abolish the Senate. One of the problems we have in the provinces is that there is not a balance between the regions and the elected assembly which represents or gives power to the population centres. Instead of fooling around with a document of political revolution, which this resolution is, we should be addressing the faults in our structure which are causing the degree of regionalism from which we suffer today. The party caucus system locks behind closed doors the great interregional debates from which understanding and consensus flow. Those great debates in search of consensus are not part of the House of Commons. They are not part of the Canadian awareness at large. Instead, they are buried in the dangerous game of backroom regional party politics.
All three parties are experiencing the tension and strain of this dilemma, for one of the aspects of political power in Canada is caucus solidarity. But if we are really and truly representing the ideals, wants and emotions of our regions, how can we have total solidarity in caucus? That is one of our dilemmas.
Members from Ontario know that the politics of their region is to support the Liberal government because the people in Ontario have been sold a bill of goods which says that their sharing means that the resources of the outback, the west, must be available at half the world prices.
Meanwhile, a customs union forces every Canadian, no matter where he or she lives, to pay 130 per cent to 160 per cent of world price for all capital and consumer goods to protect the industries and the payrolls at the centre and heart of the country. We in the west simply do not see that as being fair or even falling within the ambit of fair sharing. It is raw power politics which causes intense regionalism.
The vast majority of people in the west are not being bamboozled by twisted rhetoric and Machiavellian strategies. These regional tensions and views would be out in the open if the Senate was an elected Senate and if it represented the regions on an equal basis, with full powers to veto abused power from this House of Commons.
The caucus system of achieving consensus has been under debate for centuries. In my opinion, the caucus system fails the minority regions of the country.
In search for an answer to this problem, I have ventured to suggest that we must work federally from a four-region concept. The other day I noticed that the NDP wanted to work
from a five-region concept. I have given that up. As much as I would like to see B.C. become a region, in my opinion it will not work.
I am not alone in my feelings. Back in 1965, there was a paper on an Atlantic union. In 1970, there was a commission of three of the Atlantic provinces on an Atlantic union. They tried to address the same problems. It is not a new problem.
Quebec has gone through an emotional experience with a referendum and does not feel it is a part of the whole. It wants to participate as an equal in the whole. Ontario is a troubled region of the land today. It sees power drifting out. It has obsolete industries and it wants to catch up. It is wondering what is happening to this country. The other region is composed of the western provinces. If we were four regions, we could talk and deal with each other as equals, and we could solve some of this regional inequity. At least with this base the regions could participate as equals rather than be divided, isolated and made to appear as ten fractious fiefdoms. The way it stands at the moment, under the amending formula proposed in the resolution the Atlantic and western provinces are given second-class status compared with Quebec and Ontario. In the west, the provinces of Saskatchewan and Manitoba are reduced to third-class status. Is that fair sharing? This is not the way in which to build a strong federation with strong and vital regions.
In my opinion, it is essential that the Atlantic and western regions participate in the decisions of the federal government as equals with Quebec and as equals with Ontario. We know that Quebec wants to participate as an equal. So do we in the west.
With regional inputs to the council of decisions at the federal level, much of the sense of isolation, frustration and alienation would be removed.
I do not know whether the regions should sit in the House of Commons and caucus as regions or if the Atlantic and western regions first need to caucus in their own assemblies from which they would then elect members to the federal Parliament. However, I do feel that our federal dilemma, caused by a misuse of parliamentary structure, could be resolved as a first priority by a constitutional constituent assembly. It is wrong for the leader of a party with a parliamentary majority to be imposing unilaterally a new style and form of government with entrenched rights which reach well beyond those essential to our freedom and individual dignity.
As this government initiative stands, we will have government by and for the population centres. Those who think we can have a strong federation, or even a strong federal state with the degree of freedom we have enjoyed over the past three and a half decades, should really try to understand the depth of division and alienation which exists within the country. An imposed move towards a unitary state is not Canadian. That approach is foreign.
A few months ago, I went into the office of a chartered accountant who is in his late thirties. He is a very busy man. On his desk was a copy of a book from the Life series “Prelude to World War I”. I asked him what a busy man was doing with a book of that nature on his desk. He told me that he was startled to learn of the horror and brutality which existed in Germany in the thirties. I was literally shocked. I realize I am getting on, but I did not know I had gone this far. I suddenly realized that we who have lived through the prelude to World War Il and who fought to defend our freedom and sense of decency and human dignity are a rapidly diminishing percentage of the population. That is why I am concerned about our basic freedoms and structures. That is why I am concerned that we are taking these structures for granted and that apathy is accelerating.
The situation in Germany started with inflation. I am not implying, Mr. Speaker, that you are as old as I am. Oh, you are older, Sir. It started with inflation in a representative democracy which worked into a direct democracy. Direct democracy soon became leadership democracy, which then turned overnight into a dictatorship. The provinces and neighbouring countries were eliminated, and Germany became a unitary state. It was nationalism at its worst. Essential to that process and maintenance of power was a propaganda system. One of the most powerful men in Germany through the thirties and into the Second World War was the minister of propaganda. Even as a young person, I found this power over the minds of people to be frightening. The same thing is happening in Canada today. The perceptions of our people are being manipulated by strategists and social engineers using the Liberal Party of Canada as their vehicle to impose a socialist unitary state. All legislation submitted to Parliament is designed with a political strategy to serve this end, and this has been going on for years. Seldom do we see an issue addressed alone; it is always in the company of a diseased hooker which attempts to influence the emotions and perceptions of the people at large. As a recent example, Bill C-57 slipped through this House in two and a half hours at second reading. Part I of that bill attacks the very fundamental heart of a free press. We on this side always appear negative, but it is our function as the official opposition to watch what is going on and to make the government justify its legislation.
If hon. members doubt that as an example, how many are aware that an innocuous clause in the omnibus bill in the Thirtieth Parliament dealing with weights and measures made the imperial Canadian standard measure illegal in this country? Not one member in this House understood the meaning of that word until recently. Laws are written without addressing essential definitions such as, what is news, what is advertising? As a result, we face reckless confusion.
This bill came to the House and attacked the independent newspaper structure of the land right after the major newspapers in the land had fallen to the ownership of two separate central capitalistic bodies. What is happening in this land? The National Energy Policy used the catch phrase “Canadianization” when in fact it is nationalizing and confiscating private rights and properties. An example of this is Merit Oil which is an independent, wholly Canadian-owned company.
Why is PetroCan buying an independent wholly Canadian Owned company? Why was it on the market? It was an the market because the monopoly structure and cartel at the refinery gate did not allow it enough room and freedom to operate within the marketplace.
The most recent first ministers’ conference was held under the umbrella of a strategy designed to make the premiers look bad. A leaked document was proof of that. A litany of words was listed for the delivery of impressions to an unthinking and apathetic public. Mob manipulation has become the order of the day in Canada, I am very sorry to say. As I said, not one member of the House of Commons recognized that little clause which changed the nature of weights and measures in Canada.
In the Thirtieth Parliament, we became alarmed at the degree of corporate concentration which had taken place. With a great flair, the Prime Minister appointed the Bryce Commission on Corporate Concentration. What has happened since its report came down? The rate and magnitude of corporate concentration has accelerated. It is without restraint or bounds in this country at the present time.
Today, in Canada, we are rushing in bath directions. On the one hand, corporate concentration is taking place, and on the other, there is rapid and accelerating state confiscation and state ownership of the means of producing goods and services.
As was demonstrated in Germany, excessive corporate concentration of power leads to a fascist state. As was demonstrated in the U.S.S.R. and other socialist countries which have gone too far, excessive state ownership and contraI over the means of production leads to a communist state. In bath political situations, man loses his freedom. When capital and property are removed from the people and concentrated excessively in corporations or the state, we lose the essence of a free economy. When we lose the element of freedom in the economy, we lose freedom. When people allow themselves to be manipulated into an egalitarian society by intellectuals and elitists, they are no longer free. People who are equal are not free. We are not born equal.
As I mentioned, our parliamentary system has great flexibility. It has built-in safeguards for second looks. Historically it has allowed for the forces to change through legislative debate and law. This resolution and the Constitution attacks the heart of these safeguards. It turns this duty and function over to the courts. Our courts and legal system address words, not issues. Our legal system is operating at the extremities of reasonable interpretation. Why should we turn over this vital function ai aur legislative assemblies to deal with issues to the word merchants in the courts?
There is a Machiavellian morality to this resolution on the Constitution. It delivers us into a structured society. It removes power from the people and delivers that power to the state. It uses the language ai totalitarian societies in the wording ai its rights. The state gives the rights to the people – it is not a Constitution by the people and for the people. It removes the right to private property, and I say to you, Mr. Speaker, that this is something that I am here to defend. It carries the potential of eliminating the political power of our second level of government. It creates a unitary state with control at the centre, and the power of the centre is anchored permanently in one province. It creates different classes of citizens depending on the province or region in which they live and work. It does not address the national problem of regionalism but, rather, aggravates it. It attacks the very structures that have allowed change to take place and leave man with his freedom.
A new Constitution must come from a constituent constitutional assembly which represents all aspects and has inputs from society. Only then can Canadians feel secure and enjoy rights that wiII survive the abuse of power. This resolution must be defeated preferably in Canada.
Today the Right Hon. Prime Minister, in his address to this House, said, ” … the people are the architects of its change, not the victims of the change.” These words came from a brîlliant political strategist who admits that he is capable of changing the course of the ship of state in the middle of the night while the people are asleep.
I have not spoken to the amendment on the resolution, Mr. Speaker, because I refuse to play with tinker toy amendments when the basic issues within the resolution carry such a threat to my freedom.
Some hon. Members: Hear, hear!
Mr. Brian Tobin (Humber-Port au Port-St. Barbe): Mr. Speaker, I am pleased and indeed honoured to rise today to speak in support of this historic resolution before the House of Commons and the Senate. It has been almost 53 years since we in Canada began our attempt to patriate and have our own Constitution in Canada. It is four months since this government, alter a great deal of thought, a great deal of sou] searching and a great deal of effort to reach agreement with the ten provinces, assumed the responsibility it has as the national government with a mandate to break the constitutional deadlock that has existed for the last five decades.
On October 2, 1980, the Prime Minister (Mr. Trudeau) said that building a country to match a dream is a long and painstaking process. But as each generation has made the sacrifices, so each has reaped the rewards. He said that every generation of Canadians has given more than it has taken and that now is our time to repay our heritage. He said that our duty is clear; it is to complete the foundations of our independence and our freedoms.
I had the honour in the last few months to be a member of the joint Senate and House of Commons parliamentary committee on the Constitution. Every member of that committee worked hard. I believe that members of all parties, when dealing with the Charter of Rights and Freedoms in particular, approached their duties with honest and open minds and wîth the desire to give back to the people after all the debate had taken place, alter all witnesses had been heard and after all the expert testimony had been analysed. the best charter of rights and freedoms possible at this point in our history.
I am proud of the work that the constitutional committee was able to do. I believe it is clear to everyone that the resolution before the House has been substantially improved, especially in the amended charter of rights, and that it is far superior to the bill presented some four months ago. The bill now before us was amended a total of 50 times at committee stage.
In saying this, I want to acknowledge the contribution made by the opposition, Conservative and the New Democratic parties who, in some instances, were the authors of a number of very important amendments or improvements. I speak in particular of the charter of rights and freedoms.
Because of the all-party work which went into the drafting of that charter, I believe it is fair to say that there is near unanimous support in this chamber for the Charter of Rights and Freedoms.
Mr. Malone: That is false.
Mr. Tobin: There must be very few people in this chamber who would deny Canadians the provisions of the charter. I speak now not of the process but of the content of the charter. I would find very little disagreement on that point.
Mr. Malone: You just got it.
Mr. Tobin: Nearly every Member of Parliament supports legal rights for the handicapped in this country, for example. Every member would support new legal rights for Canadians. Every Member of Parliament would support the equalization formula or many of the other provisions in the charter of rights.
There are those who would argue that the Charter of Rights and Freedoms, those privileges enjoyed by Canadians, are important, are paramount, but second only to the whim or the disposition of provincial governments and provincial politicians. That is the argument put forward by the Conservative Party. We in the Liberal Party, and I am pleased to say the vast majority of those members of the NDP, cannot accept the shallowness of that position. We believe that the rights, freedoms and privileges of individual Canadians are paramount, and superior to the disposition or the whim of any politician or any government in this country. That is a fundamental difference.
The shallowness of the kind of argument being put forth by the Conservative party about the process, while it claims to support the content, is so self-evident that there is no need for me to carry on about it any longer. Some members of the Conservative Party have been so uncomfortable, and I am desperately trying not to be partisan –
Mr. Crosby: Don’t try.
Mr. Tobin: – that I applaud Mr. Yurko. I do not mean to embarrass him by doing so –
Mr. Nielsen: Order. His riding is Edmonton East.
Mr. Deputy Speaker: Order, please. The practice is to refer to hon. members by their constituency.
Mr. Tobin: I applaud the hon. member for Edmonton East (Mr. Yurko) and I do not mean to embarrass him or to be cute by doing so. As I say, some of his colleagues have been uncomfortable with the shallowness of the argument which says they believe the charter is good but the process is wrong, and they have gone on to say: “Look, besides that, we have had a long tradition of freedom in this country. This is tolerant land. Therefore, we do not need a charter of rights and freedoms. We can trust Parliament to look after the rights and interests of Canadians.”
For the most part, I would agree with that. Our country’s record, if we look back through our history, has been excellent, especially in comparison to many of the other so-called democratic countries in this world. While it has been excellent, it has not been perfect. It has not been unblemished. We need only to look at some of the activities which occurred during World War Il. Neither Parliament nor the legislatures protected the rights of Japanese Canadians who found their rights arbitrarily taken away and in many cases never returned.
We are talking about the rights and freedoms of individual Canadians. Whatever the government, be it Liberal, Conservative, NDP or whatever, I say no government should have the power arbitrarily to remove people’s rights.
Again, I say the argument which the Conservatives would make that somehow we can trust the Canadian Parliament to protect the people of Canada does not hold water if we look back through our history. To make such an argument is to suggest that the rights and freedoms of the individual Canadian, the single man, the single woman or child, is his or her right only as long as it is the will of the majority or the will of Parliament that he or she should have rights. That is not good enough. I say we hardly have our eyes open to what is happening in this world when we make that kind of a suggestion.
Just today we had the President of the United States here in our chamber. We were honoured by his presence. Hon. members do not have to look at the most extreme examples of the oppression of rights in this world; they need only cast their eyes south to the problem there with which President Reagan will be struggling soon. In the country to the south of us, in the last few years we have seen the rise of paramilitary units and groups. I watched a special program on the American network the other night which showed a group of 155 people who were armed. What do they stand for? They stand for the extreme right, neo-Nazi, Ku Klux Klan extremist groups. They say a war is coming. They say they are going to do battle with the blacks in the U.S. The only way that kind of extremism will be controlled in the United States, the only way that kind of thing will be challenged before it can mushroom, is through rights entrenched in the American constitution. The present rights in themselves are not enough.
I look at my own country. I am sad to say I look at my own province of Newfoundland and at what the Premier of New-
foundland has proposed in recent months. We have a government in Newfoundland-I pray there are no others in Canada, but I fear there may be others-which proposes to pass laws saying the first qualification to work in Newfoundland on certain developments is that the person be born in that province. If that first requirement is not met, the individual would be told he or she is not qualified to work in Newfoundland.
In this charter of rights we have mobility clauses. These will guarantee Canadians the right to live, work, pursue happiness and to raise their families anywhere in this country. But if Premier Peckford has his way, that right will not be extended to Canadians as far as Newfoundland is concerned.
I have a younger brother who could not find work in Newfoundland. He is now working in Edmonton. I have another younger brother who will complete a course in the college of trades this spring. He may not find a job in Newfoundland. We are glad that my younger brother can pursue a job anywhere else in this country. He, too, may end up out west. The fact that I have two brothers who have to go out west is the kind of shortsighted argument that Premier Peckford would use to justify saying that no one but Newfoundlanders shall work in the offshore industries of Newfoundland. That may appeal to people, perhaps even my brother, the day he boards a plane to leave home. But that kind of shortsighted vision, if allowed to grow, will destroy and balkanize this country and will turn us into ten banana republics.
I find Premier Peckford’s position hard to swallow. I cannot accept it, especially in light of what he himself said in his paper “Toward the Twenty-First Century-Together”, dated August 18, 1980. In that paper, we read that:
The entrenchment of democratic rights and fundamental freedoms is a means of giving explicit constitutional recognition to values which have served Canada well.
Newfoundland, therefore, supports a charter of rights which will entrench the democratic rights and fundamental freedoms of Canadians.
Only mobility rights entrenched in a Canadian constitution can put an end to the kind of threat with respect to mobility which Premier Peckford and his government represent.
Only mobility rights entrenched in a Canadian constitution can put an end to the kind of threat with respect to mobility which Premier Peckford and his government represent.
I am absolutely delighted to sec that mobility rights are to be enshrined … If the maritime provinces, from where I come, had been restricted in mobility, there would have been social revolution in ibis country and I think it is time that people remembered that … We are totally committed to this principle and I think 99 per cent of the people of Canada are.
Mr. Edward Hearn, a Newfoundlander representing the Newfoundland branch of the Canadian Bar Association, said this:
One of the… legitimate objectives of the Constitution of Canada is the integration of the Canadian economy. The free circulation of goods, services, capital and workers has not always been adequately protected under the BNA Act. We are strongly in favour of improving and protecting the Canadian economic union.
The Task Force on Canadian Unity said:
In a federal union, the regions can expect their economies to perform better as a result of the free movement of labour, capital, goods and services.
I only regret that the mobility clause at this time does not include capital, goods and services. As a start we have guaranteed the mobility of individual Canadians to move about this country.
The premier of the province of Newfoundland was quoted while speaking at the National Press Club just across the street here in Ottawa some time ago as saying that the central government has only that life and authority delegated to it by the ten provinces. I do not know that if there are other premiers who share Mr. Peckford’s view, but that kind of vision for Canada, if it were universally accepted, would not result in a community of communities but in ten balkanized little states, each to the detriment of the whole, protecting what they see to be their own self-interests.
When I see that kind of a statement by a provincial premier, especially the premier of my province, then if we were to accept that concept, I wonder who Premier Peckford would have arbitrate what he perceives, and indeed what I perceive, to be the difficulties and the differences he has with the province of Quebec on the question of hydro development. With that kind of perception, I wonder who Premier Peckford would have arbitrate the fisheries conflicts which arise from time to time, not between Canada and the United States, but between the maritime provinces.
There is one other matter I want to speak on, namely the referendum provision. There are those who oppose the resolution because they do not like the process and do not want to offend the premiers and provincial politicians. There are those who are upset about the referendum procedure.
There was a referendum not too long ago in my province. Let us review what is in the referendum procedure. The government has already stated it does not intend to impose an amending procedure of its own devising immediately, but rather a two-stage approach to the adopting of an amending formula as proposed which will provide opportunity for all governments in this country to work out an amending formula together.
During the first two years following proclamation of the Constitution Act, 1981, the general amending formula will require the unanimous consent of Parliament and the ten provinces. First ministers will meet at least once a year during that interim period in a constitutional conference. A key item on the agenda of the conference will be a search for a general amending formula.
If unanimous consent on an amending formula is secured, Part V of the act as amended by Parliament and the provinces will come into force and we will have reached agreement for the first time after 53 years of deadlock. If agreement is not possible during the interim period and seven or more provinces representing at least 80 per cent of the population can agree on
a provincial alternative for the general amending formula, a referendum will be held. The people will be asked to decide. They will be called upon to choose between the provincial alternative and either the Victoria formula or another alternative approved by the Senate and House of Commons. Two years in which to reach agreement is a very reasonable and rational position. If agreement is not reached and the provinces and the federal government each present one position, the people of Canada, in the most democratic way possible, will decide what the general amending formula should be.
I want to speak for a moment about referenda. One of the big arguments is that referenda are divisive, that they result in province battling province, father battling son, neighbour battling neighbour.
Mr. King: Your Prime Minister said that.
Mr. Tobin: I agree that referenda are divisive. Of course they are. Elections are divisive. There was a referendum in Newfoundland 32 years ago. I cannot talk personally about it because I was not there. I am not proud to say that I am 26, but being 26 I am proud to say that I am the only Newfoundlander in this House of Commons who was born a Canadian. Having been born after 1949, I was born a Canadian.
Let me say what a referendum means to me. My father, mother, grandparents, older friends and many of my constituents have told me about the great battle of confederation, and a great battle it was. There was a lot of debate and the result was very close. Only 52 per cent of the people of Newfoundland voted for confederation in the referendum. For many of the older people, the scars have still not healed. However, for the vast majority of those in Newfoundland, the scars have healed.
What does a referendum mean to me and what can it mean to future generations of Canadians? I know from reading history that previous to making the final decision on where its future lay, my province went from democratic government to responsible government to government by commission. There was a turbulent history because we, as a country or dominion, had not decided where our future should lie.
There was a referendum held. It was divisive and it hurt. What did it accomplish? It gave to my generation, those born after the referendum and those being born today, for the first time in history, stability for our province. It gave us a sense that we had a future, that we belonged, that we are part of a greater whole, a sense that we live in a land of opportunities and that five years down the road there will not be an appointed or delegated governor or commissioner to run our land.
Although the referendum was divisive, to those of my generation it was a great gift, given to us by our forefathers, our parents, and our grandparents. When they gave us that gift of liberty and stability, for the first time they gave it with the sense that we had a responsibility to preserve and project that new but rich heritage. I suggest that the way I can do that best as a young Newfoundlander, as a Member of Parliament and as a Canadian, is by ensuring that this gift passed to me is passed on to my children. I can do that best by supporting this resolution before the House, with a charter of rights and freedoms which provides for the individual in society-not for provincial premiers, not for political parties, not for government and not for any particular language or racial group those basic freedoms, rights and privileges that allow the individual to pursue happiness and a rich life in a rich and generous country.
* * *
RESOLUTION RESPECTING CONSTITUTION ACT, 1981
The House resumed debate on the motion of Mr. Chrétien, seconded by Mr. Roberts, for an address to Her Majesty the Queen respecting the Constitution of Canada.
And on the amendment of Mr. Epp, seconded by Mr. Baker (Nepean-Carleton)-That the motion be amended in Schedule B of the proposed resolution by deleting Clause 46, and by making all necessary changes to the Schedule consequential thereto.
Mr. Howard Crosby (Halifax West): Mr. Speaker, I thank you for the opportunity to join in the debate on the constitutional resolution now before this House.
Let me begin my remarks on the constitutional proposal of the Prime Minister (Mr. Trudeau) by stating in very clear terms that I, like others, have come to bury Caesar, not to praise him. I say this unashamedly and in good conscience because I made my views known to him in a letter delivered the day before Parliament reconvened and before this constitutional resolution was introduced in the House on October 6, 1980. I said to the Prime Minister, and I repeat it now in this House, that the greatest impediment to constitution reform and change is the Prime Minister himself.
Reform and constitutional change is not only a matter of principle but has become and continues to be a matter of personalities, indeed, a conflict of personalities-conflict between the Prime Minister and the majority of provincial premiers, conflict between the Prime Minister and parliamentarians in the United Kingdom, conflict between the Prime Minister and the British High Commissioner and other
diplomats and, most importantly, conflict between the Prime Minister and his colleagues in the House of Commons.
This Prime Minister does not accept as a matter of personal choice and preference the two basic and founding principles of our Canadian constitutional system. The first principle is that Canada is a federal state governed by both a national government and a provincial government for each of our ten provinces. In contrast, Canada is not a unitary state with a single, centralized government, as is the United Kingdom.
The second principle is that the form of government in Canada is a parliamentary democracy in which the Prime Minister is first among equals and holds office only with the consent and concurrence of his parliamentary equals. Again in contrast, our government is not of the republican form wherein the head of state is elected to hold executive office, with the powers and duties of that office separate and apart from the authority of the legislative component, as in the United States.
To put the matter in more mundane terms, the Prime Minister of Canada or, indeed, of any nation governed by the British parliamentary form of government is not justified in assuming he has, as a person and as an office holder, the support of the people, or to assume, as the Prime Minister did, that he “only had the people behind him”.
Let us talk about the people of Canada who the Prime Minister of Canada has behind him. What the Prime Minister has behind him and beside him are 142 Members of Parliament, or a clear parliamentary majority in the House of Commons, who proved by their election that they had the support of a plurality, not a majority, of those who voted in their respective constituencies. Indeed, if one counted Canadian noses one would find it very difficult to establish a mandate based on support of the population for the Prime Minister, or for any of his predecessors other than the Right Hon. John George Diefenbaker. Everyone agrees that the former right hon. member for Prince Albert won a tremendous personal mandate in addition to an overwhelming parliamentary majority.
Let us count the people behind the Prime Minister. First, there are just under 24 million people in Canada. Second, there were only 15.8 million registered voters. Third, only 69 per cent of the registered voters, or 10.9 million, voted. Fourth, only 4.8 million of those voters voted for the Prime Minister’s party, only 1.3 million more than the 3.5 million who voted for the Progressive Conservative Party. The end result is that if the Prime Minister has a mandate it is from less than 20 per cent of the Canadian people.
Let us not confuse election success with the support of the people. Many of us are well aware that we were elected by a plurality of voters and not the majority. We are well aware that we must earn popular support and work hard to maintain it. Popularity among Canadians, either nationally or in any federal constituency, cannot be assumed from election results. I firmly believe that no one in Canada should know that better than our Prime Minister. He assumed wide and national popularity from an election victory when his party received 44 per cent of the votes of those who voted, 30 per cent of the votes of the total electorate but, most importantly, a minute 20 per cent of the votes of the Canadian population.
The Prime Minister now knows the real answer. Over 65 per cent of the Canadian population is opposed to the constitutional proposal. This result was established and confirmed by scientific polIs, the very polIs upon which he formerly based his assumption of broad support.
I have said, and I repeat, that Canadians are not opposed to the principle of constitutional change and reform. They are opposed to the person who demands that this change be made now in the United Kingdom Parliament, not in Canada by Canadians. That person is the Prime Minister of Canada.
I have taken some pains to qualify and characterize the popular support for the constitutional proposal. My conclusion is based on sound facts. The Prime Minister has the electoral support of 20 per cent of the people of Canada according to the 1980 election statistics. According to the scientific polis, as I have said, 65 per cent or more of the Canadian population oppose constitutional changes beyond simple patriation. This is the sum and substance of public support for the constitutional proposals.
Let me record the fact that I am well aware many Canadians from coast to coast want change. Many Canadians, particularly those whose origins are outside the British Commonwealth system, want constitutional guarantees and safeguards. Many want rights and basic freedoms enshrined in a bill of rights or a charter of rights. But it would be a cruel deception to offer those well-meaning Canadians a piece of paper, a mere written document approved by the parliament of another country-words with no spirit, statements of right which have no concurrence or that do not stem from a consensus within Canada. That forces us to consider the process and procedure for constitutional change in Canada, and whether the traditional process and procedure has been honoured in the proposal for constitutional change.
An hon. member referred to the shallow argument about process and said that our arguments were not directed to the substance of the proposal. That member and, I am afraid, many members do not understand the meaning of constitutional process. They do not understand that it is equally as important as the substance of the constitutional provisions because it is that process that brings about within Canada the consent and concurrence of the people which is the support for the provisions sought to be enacted. Without that support, consent and concurrence the proposals and provisions are shallow and meaningless and will not be accepted by the people.
On a recent occasion in this House my colleague in the adjoining constituency of Halifax (Mr. Regan) made some remarks about the hon. Leader of the Opposition (Mr. Clark) and his arguments on the Constitution. Let me say very clearly that I was ashamed of my colleague from Halifax but very proud of the Right Hon. Leader of the Opposition in the stand he has taken on the constitutional proposal.
Some hon. Members: Hear, hear!
Mr. Crosby: Because he took that stand when the Prime Minister said he had the people behind him, when it appeared the proposal would go through and would be endorsed and accepted by the people of Canada. He took that stand on principle because what the Prime Minister was doing was wrong, and today it has been proved to be wrong. It does not have the support of the people, and it is the Prime Minister and his supporters who will suffer for that mistake.
Canadians have heard the Prime Minister say time and time again that his proposals for constitutional change evolved from the frustration of years and years of federal-provincial disagreement and inaction. He says that over 50 years of effort failed to produce agreement, that the only effective method and process for constitutional change is unilateral action by the Government of Canada which will exercise its control and authority over the Parliament of Canada.
Certainly proposals have been considered and rejected, but what in specific terms has the Prime Minister done to bring about constitutional reform? Between 1968 and 1971 federal and provincial ministers met seven times in constitutional conferences and produced the Victoria charter which was rejected by the province of Quebec. Apart from these meetings the only real initiatives the Prime Minister promoted or permitted are the following: the establishment of the Special Joint Committee on the Constitution of Canada in February of 1970; the creation of the so-called Pepin-Robarts Task Force on Canadian Unity in July of 1977; the constitutional amendment bill introduced in this House on June 20, 1978, Bill C-60. Apart from first ministers’ conferences, these were the only real catalysts for constitutional change launched by the Prime Minister in the 1970s.
We know the conferences failed. Some of us suspected the last effort in September of 1980 was intended to fail in order to justify the unilateral proposals now before Parliament. That is why we are considering this important proposal in an atmosphere of suspicion and mutual distrust.
Let us examine some aspects of those three initiatives, because I think we will see quite clearly that the thrust of the proposed constitutional reform is very different from the changes discussed in those three initiatives. The special joint committee began its work in 1970 and tabled its report two years later. A feature of the report was Senate reform but the proposals were not dramatic. The proposal was that the Government of Canada make all future appointments to the Senate, but that one half would be of persons nominated by the provincial governments. Distribution of Senate seats would be changed to increase representation from western Canada and review of judicial appointments by the Senate was rejected. Also, the Senate’s veto over legislation was to be reduced to the right of a six-month suspension of legislative measures. The role of the Senate was to be largely investigative and advisory. The joint committee did not advocate major changes in the Supreme Court of Canada although the report advocated a consultative process with respect to appointments.
The second area of initiative was the Task Force on Canadian unity. After much fanfare and publicity the task force tabled its report in this House on January 25, 1979. Those who remember the establishment of this task force know that it followed the election of the Parti Québécois. There was implicit in its creation the implication that federal government institutions were not responding to the needs of Canadians, particularly those in Quebec, and the task force was intended to direct attention to the revitalization of those institutions. The report contained a long list of 75 recommendations with three areas of special interest, the Senate, the Supreme Court of Canada and the House of Commons, and reflected its concern with revitalizing federal institutions.
As for the Senate, the task force recommended a council of the federation, the real purpose of which was to institutionalize and integrate into the parliamentary system the process of federal-provincial consultation. In other words, the council of the federation would reflect the concerns and interests of Canada’s provinces. Its membership would include 60 voting members appointed by the provinces with non-voting participation by the federal cabinet. It would also have the authority to review judicial appointments to the Supreme Court and some federal boards.
As for the Supreme Court, the task force rejected the idea of a separate constitutional court but said the Supreme Court should be composed of five judges from Quebec and six from the common law jurisdictions in the other provinces. Consultation with Quebec and other provincial authorities would be required before appointment to the Supreme Court and the council of the federation would review those appointments. The judges would be separated for some purposes but would jointly deal with constitutional questions.
The most controversial recommendation of the task force related to the House of Commons and involved proportional representation. This complicated proposal was intended to relieve problems of regional representation and the distortion that occurs when one party wins all the seats and no representation is given to the opposition parties from that region. Needless to say, these major proposals respecting the Senate, Supreme Court and House of Commons remain sterile recommendations of a spent force, even though the co-chairman of the task force now sits in the highest council of the Canadian government and from time to time holds the office of Acting Prime Minister. One wonders, Mr. Speaker, what the Minister of Transport (Mr. Pepin) now thinks of his government’s constitutional proposals.
The third initiative was Bill C-60, introduced in this House June 20, 1978, which proposed important changes with respect to federal institutions. The primary thrust for constitutional change was the Senate. The proposal was to replace the Senate with a house of the federation consisting of 118 members, 59 of whom would be appointed by the House of Commons and 57 by the provincial legislatures, with two members appointed by the Government of Canada for the Northwest Territories and Yukon.
The concept involved was to take into account the preferences of the electorate expressed at the most recent provincial or federal election. This concept would be implemented by each provincial legislature naming its quota of members after a provincial election, and the House of Commons and the federal government would make their appointments after a federal election.
The house of the federation could delay but not veto the legislation. But it would have authority to affirm or veto judicial appointments, including appointments to the Supreme Court of Canada, subject to an overriding power exercisable by the House of Commons.
Another feature of Bill C-60, the constitutional amendment bill, was the proposal of an I 1-person Supreme Court of Canada with four judges from Quebec. The bill proposed a nomination process for appointment involving federal-provincial consultation and a joint nominating council if a dispute arose. The monarchy was to be retained, although the role of Her Majesty the Queen was clearly nominal and the prerogatives and functions relating to the Crown would be exercised by the Governor General.
One other parliamentary initiative which should be mentioned is the Senate Standing Committee on Legal and Constitutional Affairs established in January, 1980. This committee considered an elected Senate, the house of the federation proposal of Bill C-60, and the council of the federation proposed by the Task Force on Canadian Unity. But the point of all these exercises was and still is the necessity of involving the provinces in the process of constitutional change.
This brings me back to my original point which I want to underline. The Government of Canada has ignored in its constitutional proposals the pith and substance of proper constitutional reform. The process and procedure whereby the duly constituted federal authority and the duly constituted provincial governments agree and concur on constitutional change. Only constitutional reform which attracts this kind of concurrence and agreement will benefit the people of Canada.
It may be asked what is the proper procedure for constitutional reform and change. The traditional process and the process honoured by parliaments and governments of the past was to obtain the concurrence of the provinces to any constitutional change affecting the provinces. If one reads the Statutes of Canada and the appendices to those statutes, one will see illustration after illustration wherein the Government of Canada sought the consent and the concurrence of the provinces of Canada affected by changes in the British North America Act. There are amendments to the British North America Act which deal with the extension of the boundaries of provinces. That amendment was made to the British North America Act only after consultation with the provinces and with their consent. Unemployment insurance was the result of a consultative process. There may be cases in which the provinces were not consulted in respect of amendments to the British North America Act, but in each case the provinces were not affected in the manner in which they will be affected by the constitutional proposals now before the House of Commons.
I do not think there is any doubt in the minds of members of Parliament on this side of the House, and I do not think there is any doubt in the minds of Canadians, that the provinces of Canada must be consulted with respect to constitutional change and that only constitutional change which comes about as a result of the consent and the concurrence of the provinces will be effective in Canada. It is much more than a question of process. Hon. members on the other side do not understand that they will enact constitutional changes not only to their peril, but to the peril of all Canadians.
Why should there be provincial consent to and concurrence in constitutional change? It is absolutely necessary in order to have the basic support for the constitutional provisions when they are enacted. I could give a hundred examples, but let me say that in my career I had occasion many times to deal with law in its application to people. Even though a law is carefully written, appears to observe proper standards and is intended to benefit people, that law in its application can result in great injustice and unfairness if it is not properly administered. Yet the Government of Canada in its constitutional provisions is asking the provinces properly to apply, implement and administer a law with which they have not concurred, a law which they have had no opportunity to review and examine. That kind of law will not accomplish whatever the Prime Minister thinks it might accomplish.
I must say that it is not necessary to have complete unanimity; no one has suggested that. The more agreement one has to the enactment and application of a law, the more effective the law will be, whether it is a constitutional law or any other law.
I want members in the House to reflect upon the fact that there is no magic to the constitutional provisions contained in the charter of rights. They are no different from any other words on pieces of paper. They have to be applied by the same people who apply the laws in Canada, they have to be observed by the same people, and they have to have the same spirit and backing as any other law of Canada. There is nothing magic in the House passing a law under the guise of a constitutional amendment, a charter of rights which will go forward to the parliament of the United Kingdom to be rubber-stamped and then come back to Canada. When it comes back to Canada, there will be no magic to its enforcement; it will have no greater force than the people who support that law.
The matter of the constitutional proposals and their application to Canadians has been much discussed in Nova Scotia. Early in the constitutional debate, in November, 1980, I had occasion to participate in a public forum sponsored by the Council on Canadian Unity. The Minister of Labour was present at that meeting, as well as representatives of the provincial legislature. We debated the need for and desirability of constitutional change. I am proud to report to the House what I said on that occasion, that the fight has just begun, that the constitutional debate would be escalated in Canada and that the constitutional proposals would be exposed for what they were-the product of one man with the apparent loyal
support of his party in this House, not the product of a Canadian consensus.
At that point in time it was not an easy thing to say because it appeared that the constitutional proposals would be rushed through the House before Christmas, that they would be sent off to the parliament of the United Kingdom for endorsement, brought back to Canada and enacted in great fanfare and celebration on July 1, 1981. That was the proposition put forward by the Prime Minister in the House. Today we see that schedule has not been continued. The Prime Minister has admitted the difficulty we confront in this proposal. He has delayed the debate, and it is obvious he was mistaken in the first place because, as a result of the delay in the debate and the continuation of the consideration of the constitutional provisions, no amendments were brought forward. Changes were made which the last member who spoke admitted were valuable changes that made the charter of rights one of the best pieces of legislation in the world.
This brings me to another point. Members of the government party have stood up time and time again and called the charter of rights the best constitutional provision in the world. I had occasion to deal for one year with a group of students who studied the constitutional provisions of the world. They are written in many books; I have one or two to which I should like to refer. For example, there is a reference in a constitution to a society in which the rule of law, fundamental human rights and freedoms, equality and justice-political, economic and social-with be secured for all citizens. That is the constitution of Bangladesh. I could quote provisions from the constitution of Haiti which would indicate that things are perfect and all rights are preserved in that nation. I can quote a constitutional provision from Sri Lanka which ensures mobility rights to all persons in that country. Guatemala has provisions which would rival the charter of rights now before us.
So my message to you, Mr. Speaker, and to the members of this House is that it does not matter what you put in a constitution if you do not have the spirit of the people behind it. If anyone wishes to come over to my seat, i can show them the constitution of El Salvador, which is of so much concern to my friends to the left. They think, and they have the audacity to say in this House and elsewhere, that they know how to solve the problems in El Salvador. Mr. Speaker, my friends to the left do not now how to solve the problems in El Salvador or anywhere else in this hemisphere.
Some hon. Members: Hear, hear!
Mr. Crosby: The gang of four is rising up because of disputes in that party; they cannot solve their own problems. But that does not bother them. They are prepared to solve the problems in El Salvador or anywhere else where they think socialism can take over and destroy the country, as it has destroyed the economies of so many countries in this world. We are not fooled by that talk. We are not afraid to stand up for the free enterprise system and endorse a system of government which responds to human challenges, honours incentive and respects the work ethic. There is nothing wrong with that.
As I have said, in the province of Nova Scotia there has been much consideration given to this constitutional debate. I was very proud of the Premier of Nova Scotia, the H on. John Buchanan, when he appeared before the constitutional committee to state the position of the province of Nova Scotia. He said:
– we Nova Scotians believe that we have a special stake and a special responsibility in what is happening to Canadian federalism at the present time, Apart from our native peoples we are first among Canadians, … we were one of the four original provinces in that federation of 1867 and we brought to that federation a great deal-a great deal of history, of law, of government, of purpose and not least of all, we brought to the union of 1867 our commitment to serve in a constructive way in the new federal state that had been created.
We feel that we have special responsibilities to preserve and to protect the understanding of 1867.
That is what the Premier of Nova Scotia did when he came before the constitutional committee; he came to protect and preserve the confederation which was established in 1867. He did not come to that committee to debate any minute points of constitutional law, of what the rights of the government were in relation to the enactment of constitutional law and what right the government had to ask the Parliament of the U.K. to pass a law. He came before the committee in the interests of preserving this confederation. I was proud of him. What his message was when he came was simply this: the provinces must be consulted in relation to constitutional reform. There must be a process whereby the provinces can have the opportunity to consent to and concur in constitutional changes. Without that consent, without that concurrence, the constitutional changes are a threat to the Canadian confederation. You’d better believe that, Mr. Speaker.
Reference has been made many times in this House to the British North America Act. I wish to comment very briefly on the existence of that act, because sometimes it occurs to me that people are not quite certain about what is involved. The BNA Act is a statute of the parliament of the United Kingdom which was passed in 1867. Over the years it has been interpreted by the judges in Canada and formerly by the Privy Council in order to meet the needs of the Canadian economy and of the Canadian people as we have grown over the years. It has been regarded as a “living tree”, something which has lived over a period of 100 years since confederation. It is flexible. It allows for change. It allows Canadians to develop their economy and their individual interests. It is not a document to be trifled with or to be put aside for some draftsman in the Department of Justice to determine what is an appropriate constitutional provision for the people of Canada.
There have been many battles under the BNA Act with regard to interpretation of its provisions. None is more important to the people of eastern Canada, in particular to the people of Nova Scotia and Newfoundland, than the dispute over offshore resources. This is a provision which, if it could be solved by the Prime Minister and the Government of Canada, would give rise to an economic development on the east coast
which would ensure our prosperity for the future. But it is not being resolved. In fact, in this constitutional provision it is being totally ignored. If we had constitutional changes and reforms of that kind before this House, we would see great co-operation from members like myself, since that is what we need.
We need the kind of constitutional changes which will permit development of Canada, which will permit people on the east coast to develop the economy and resources which exist for the betterment of the people. Instead we are faced with a constitutional provision that guarantees equalization. It guarantees the same kind of federal hand-outs that have been received in the past, which have done nothing for the area and which have only maintained us in our poor economic state. At the same time the Government of Canada ignores those kinds of constitutional changes which would guarantee economic progress on the east coast, particularly in Nova Scotia and Newfoundland.
One must ask: Where are the real interests of the government? Is it really trying to change things in Canada or is it just sloughing off its responsibility? Is it creating a constitutional argument, a constitutional debacle which will take people’s minds off real concerns, which will take us away from real solutions to the problems and we will simply become a debating society with no purpose, no objectives and no goals?
I think it is a shame, Mr. Speaker, that we in this House, and others elsewhere across the country, must enter into a constitutional debate. Many people have said this to me time and time again. All I can say is that it was not of the making of the Progressive Conservative Party. We believe in constitutional change and reform. But we believe in a Canada that involves the provinces and the people of Canada in the decision-making and which does not simply force upon people something which members of this House could not possibly know whether or not Canadians are willing to accept.
I have mentioned several times that many Canadians have joined in this constitutional debate. I want to honour Mrs. Norah C. Biron, of Green Cove House, Shore Road, Port Maitland, Nova Scotia. She wrote what I think is a very instructive letter to a Halifax newspaper. She comments on the constitutional proposal and indicates a genuine perplexity with the attitude of the Prime Minister with respect to constitutional reform and change. In her letter to the editor she quotes the Prime Minister as saying:
Politicians who spend their time and energy complaining about the Constitution are simply trying to find excuses for not doing as good a job as they should. Canada’s real problems are not constitutional ones but concern housing shortages, the cost of living and other social problems; those who blame the Constitution for their troubles are deluding themselves in thinking that constitutional changes alone will work some sort of miracle on this continent.
Mrs. Biron was quoting what the Prime Minister said in 1967. She asked in her letter what he is saying now. He apparently has changed his tune. He apparently thinks that changes in the Constitution will result in a better Canada. Well, I do not agree with him. I can tell you, Mr. Speaker, he is wrong with respect to a great many of these provisions. He may be wrong on the enshrinement of the so-called legal rights. If he were to consult with Chief Justice Berger of the Supreme Court of the United States he would be told that there is a reign of terror in U.S. cities and that it is related to the constitutional provisions. I can say that because I worked for five years in legal aid. I have defended many criminal offenders, many of whom were charged with murder. I know that at this stage of our development it is highly questionable whether we ought to be giving more rights to criminal offenders in this country than they now have, bearing in mind the reign of terror that Chief Justice Berger says exists in the United States of America and its principal cities. If hon. members do not believe me, they should take a walk through New York City some night.
There are provisions for handicapped persons. I stood in this House under Standing Order 43, and asked the government to change the constitutional provisions to provide for handicapped persons. I wonder if the government really knows what that involves. Is it prepared to finance, for the provincial governments, the programs and the educational system which handicapped persons need? Handicapped persons may have learning disabilities, for example, and they are being denied special training programs. Will the government on the other side of the House really help handicapped persons, or will it merely put a few words into a sterile constitutional provision?
I said I welcomed the opportunity to speak on the constitutional proposal which is before this House and the people of Canada. I hope that by now the people of Canada recognize the true intent of this constitutional proposal and recognize that without the consent and concurrence of the provinces and without the consent and concurrence of the people of Canada it will be a meaningless exercise, a sterile provision which will not help anyone and will cause great division and distortion in the country. Of course the blame will lie at the feet of the Prime Minister of Canada.
Mr. Gordon Gilchrist (Scarborough East): Mr. Speaker, there are times when I wonder about the intelligence, the sense of duty, the motives and even the loyalty of people who are elected to membership in this House of Commons, which is part of the Parliament of the world’s most blessed and beautiful of countries, our Canada. I wonder about their sense of devotion to a country with a proud history, which needs no apology, and a magnificent future, which needs, not meddling, but planning.
I wonder about the quality of Members of Parliament who sit here complacently watching escalating inflation beset our senior citizens and breadwinners, watching our students graduate to unemployment levels where only one in every seven is able to find work, watching our Canadian dollars flow out of the country to pay oil workers in Venezuela and Mexico and to help those countries to become rich at our expense, and watching this government neglect the research and scientific and technological development of the world’s richest nation so that our main source of jobs and revenue is through the sale of
our valuable resources to foreigners, while our country grows relatively poor and theirs grow richer.
Is it any wonder then that I am reluctant to enter this unnecessary debate when less than 10 per cent of the Canadians surveyed rate it as a low priority issue? This debate, which has wasted a year of Parliament’s time, is on an issue which, instead of uniting the people of this vast and diverse land, has divised us all the more. What a legacy this Prime Minister (Mr. Trudeau) will have left to Canada’s posterity! This is a debate which I enter out of a sense of compulsion. I enter it reluctantly because it is not necessary. The British North America Act and the common law have served us well.
This debate is divisive because it pits region against region and Canadian against Canadian. It is counterproductive. It emphasizes differences instead of cementing similarities of purpose. It is dishonest in that it masks the real issues with which governments should be dealing, and it has used up a whole year in smoke-screening, unwillingness and inability of the government to deal with and solve the real problems of the country.
A member might well ask himself why he should enter into acrimonious debate which can only serve to divide further this wonderful country of ours when the Prime Minister of Canada has clearly indicated that he will not change his mind, no matter what any of us say, on unilateral patriation and on the charter of rights, even though one in every two Canadian is opposed to these actions, even though eight out of ten provinces are opposed, and even though six provinces feel it necessary to take the matter to the courts.
So just what purpose is there in my taking up the valuable time of the Parliament of Canada to speak out against this undemocratic and unCanadian action by the Liberal Government of Canada, which ignores the wishes of the people of Canada whom the government is sworn to serve? Well, let us have it clearly understood: a government is put in place to serve the people of a country. The people do not serve the government. This Trudeau Liberal government, in securing its mandate in the last election, declared it would serve the people in matters of lower cost energy, lower inflation rates, and by instilling a greater sense of unity in a divided country. It made no mention of constitutional change and therefore has no mandate from the people of Canada to carry out these drastic and divisive changes to our Constitution.
If the government believes itself to be right in its views and actions, but if those actions are contrary to the wishes of the majority of the people, then democracy fails. There are many times when complex issues are resolved by Members of Parliament, the representatives of the people, without the direct involvement of the people on complex issues. However, the Constitution of a country cannot be one of those items. The Constitution by which a nation will govern itself into the future is a document which must come from the people and reflect their views and beliefs. It cannot be the unitary and arbitrary act of one man or one political party dancing to the tune of one man. If one man or a small group of people feel they know better than the clearly expressed wishes of the majority and if that small group imposes its will contrary to the wishes of the majority, then democracy is replaced by oligarchy or, even worse, by dictatorship.
My purpose, then, in rising to debate is simply to sound a warning to those who will listen that this government has no mandate and little public support to act as it is acting in relation to the present Constitution of Canada. It is intolerable and inexcusable for this arrogant Prime Minister to say that it does not matter what Canadians think. He will not change his mind on this matter, which is critical to all Canadians and even to unborn generations. Let the Prime Minister take part in this debate-I hope he will-and tell us all why he has such an obsession to give the people a new Constitution, when they already have one, and to amend it in a way that every second Canadian opposes.
Just what is wrong with the present Constitution? We have a partnership agreement with the provinces which has served us well and has built a great nation over the past 114 years. Can it be that the traditional French bitter mistrust of anything British has blinded the Prime Minister to the fact that the British North America Act-which was really designed by Canadians, aided and bolstered by the common law, which was patriated not only to Canada but also to the United States from Great Britain centuries ago and has constantly been amended and updated by Canadians-has successfully protected Canadian rights, Canadian lives and Canadian property right up until the present? The common law, linked to the British North America Act, has bound Canadians together and to the land they love for over a century.
Can the Prime Minister explain how written words or even words chiselled in stone can better protect the rights of a citizen when a government-any government in any future day-can do away with those written words just as easily as the Prime Minister did away with the rights of Quebec citizens under the War Measures Act, for example? It is not that the War Measures Act was wrong or right but simply that it happened, and it can happen again any time a government decides to call an emergency, in spite of golden constitutional words to the contrary.
We are all aware of the world’s finest, most flowery constitution, that of the Union of Soviet Socialist Republics and how it protects the rights of its citizens! I would like to read a few words from it for the benefit of the Prime Minister, although that may be unnecessary, as his inspiration for his own charter of rights may have originated there. Article 2 of the U.S.S.R. charter says:
All power in the U.S.S.R. belongs to the people.
That is great stuff. Article 34 says:
Citizens of the U.S.S.R. are equal before the law, without distinction of origin, social or property status, race or nationality, sex, education, language, attitude to religion, type and nature of occupation, domicile, or other status.
Article 50 reads, in part:
– citizens of the U.S.S.R. are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations.
I wonder what the result would have been in Russia had the recent demonstrations by dissidents in front of Parliament taken place there?
Article 54 states:
Citizens of the U.S.S.R. are guaranteed inviolability of the person.
Citizens of the U.S.S.R. are guaranteed inviolability of the home.
The privacy of citizens, and of their correspondence, telephone conversations, and telegraphic communications is protected by law.
So says the charter. And article 57 says, in part:
Citizens of the U.S.S.R. have the right to protection by the courts against encroachments on their honour and reputation, life and health, and personal freedom and property.
We are all aware of the rights of Russian citizens and the worth of written guarantees. So much for a written constitution!
The BNA Act and the common law have been effective and flexible in protecting Canadians for 114 years, not because of written guarantees but because we Canadians believe in rights and freedoms. If changes are needed from time to time, Parliament can enact new laws to cover any deficiencies, and Parliament does enact new laws every day; every year 100,000 or more new laws emanate from this place.
What does the Prime Minister hope to achieve by switching Canada over to the republican system of government? Does the man who took the guillotine to Parliament in this important constitutional debate wish to become the Charles de Gaulle of Canada and arrange to impose his will on Parliament as de Gaulle was able to do to the Parliament of France for so many years?
What can be said in favour of a new Constitution-new, but still within the parliamentary system incorporating a written charter of rights? In fairness, it must be said that from time to time both the central government and the provinces have been guilty of enacting legislation contrary to the rights and interests of some group or other of Canadians. Examples which come to mind are the Japanese Canadians who were discriminated against in the last war in the same way as Japanese Americans who were protected by a written constitution; the Quebec discrimination against workers from other provinces, a deplorable action by a provincial government which denies the spirit of confederated rights, as well as repeated failures to live up to rights and treaties of native peoples which were not corrected by charters but by intelligence and good will.
The Trudeau charter would attempt to prevent such unfair legislation in future by making it unconstitutional. This is admirable and is deserving of support and careful consideration. But we cannot afford to slap a Constitution together. We must create a just and meaningful Constitution, not an instant one created quickly enough to be passed by Britain, but bad enough that it will have to be passed by Britain because it could not be passed in Canada.
I could applaud such motives and even such actions, if I believed that by just the writing of words, all would be corrected in Canada; that the morning after the proclaiming of the Trudeau Charter of Rights and Freedoms, all Canadians would march arm in arm into the golden dawn. That is not the way life is. Russia certainly has not achieved excellence or individual freedoms by writing a wonderful constitution. Our respected neighbour to the south has not achieved a more hallowed society through the enactment of a ringing constitution. In fact, they have amended their constitution some 26 times in an attempt to reflect changing attitudes.
That is exactly what federal and provincial legislation and the common law have done so well in this country ever since confederation. Why then has the government taken a whole year of time away from valuable economic and social planning if there is so little to be gained from all this discussion? It is a discussion which the people of Canada hold in little regard, and well they might, with inflation of 12 per cent occupying their real concerns in raising their families or in supporting their retirement, or with unemployment staring a million Canadians in the face in a country rich enough in resources to sustain zero unemployment but so poor in government ideas and resolve that it foists an unwanted year of unnecessary debate and bitterness on people who believed that by electing a Liberal government they would get cheap energy and a unified country after the Quebec referendum.
The government promised to keep the increase in the price of gasoline below 18 cents per gallon. It failed to keep that promise, and gasoline rose over 20 cents per gallon in a year.
The government promised to keep the increase in the price of gasoline below 18 cents per gallon. It failed to keep that promise, and gasoline rose over 20 cents per gallon in a year.
With no mandate to change the Constitution of Canada, no promise to do it, or not to do it if Canadians do not want it donc, the government says it is going to do it anyway. Is that responsible government? Is that a government Canadians can trust to deal honestly and capably with our most sacred trust-a constitution for Canada?
You may well ask, just how did this sudden constitutional urgency come about? And why must such important work be subject to an early deadline? There are two reasons. Canadians had rejected the Prime Minister and his Liberal government in 1979 because of its terrible economic mismanagement of the country. Suddenly, the emperor who had quit was the emperor again, and a last ditch opportunity presented itself.
Then the Quebec referendum took place and Canadians rejoiced that Quebecers had opted for confederation, little realizing that Canada’s arch socialist would use the occasion as an excuse to change Canada’s Constitution under the guise of national unity. As a reward for staying in Canada, he would give Quebec the rest of Canada-as a French socialist republic.
So, with no election mandate and with no demand from Quebec to do so-in fact both political parties opposed the Constitution-this arrogant Liberal government plots to tear down the historical contract under which Canada was built.
I say “contract” because Canada’s Constitution, the BNA Act, is a contract, a contract which is the very underpinning by which Canada came together and by which Canadians live. It is a contract entered into by two partners, the provinces on the one hand, and the federal government on the other. While a contract may be broken by cither partner, it cannot be the instrument by which one partner can take over the rights and privileges of the other, without consent. Such a takeover would be illegal, and that certainly is the provincial view. Is it any wonder that eight of our ten provinces oppose this Liberal plot? Is it any wonder that two out of three Canadians, 64 per cent of us, are opposed to the unilateral action of an undemocratic government?
In the last Gallup poll, when asked the question if they “preferred to have the Constitution amended by the British parliament to incorporate a bill of rights, and then brought to Canada”, four out of five Canadians responded “no”. Four out of five Canadians are directly opposed to the very action which this obviously undemocratic government plans to take.
This government, and every one of its members, was elected to represent and enact the wishes of the majority of Canadians. The majority of Canadians are saying, “No, don’t change our Constitution in Britain”, and the majority of Canadians are not stupid. They, too, have been reluctantly watching the developments of this constitutional debate and they have heard how their rights are being put in jeopardy, not made stronger.
Mr. Speaker, I intend to explore a couple of the rights which have been written, but I sec that my time has run out for today. With your permission, may I call it six o’clock and continue tomorrow?
The Acting Speaker (Mr. Corbin): Order. It being six o’clock, the House stands adjourned until 2 p.m. tomorrow, pursuant to Standing Order 2(1).
At six o’clock the House adjourned, without question put, pursuant to Standing Order.