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Date: 1981-03-10
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 1973-1977.
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March 10, 1981 SENATE DEBATES 1973

THE CONSTITUTION
MOTION FOR AN ADDRESS TO HER MAJESTY THE QUEEN
DEBATE. CONTINUED
The Senate resumed from Thursday, March 5, the debate
on the motion of Senator Perrault that an Address be present~
ed to Her Majesty the Queen respecting the Constitution of
Canada.
Hon. G. I. Smith: Honourable senators, I should like to
express my appreciation of your thoughtfulness and accom~
modating spirit in so kindly agreeing to the arrangements with
respect to the committee meeting I spoke about some few
minutes ago. I turn now to the words of wisdom I mentioned in
those few remarks a little while ago, and as I rise to take part
in this debate I emphasize that it is not, as some would have us
believe, a debate on patriation of the Constitution.
I am strongly for the patriation ofthe Constitution and have
been for many years, and so, I believe, is every member of my
party in both the Senate and the other place. But it is one
thing to want patriation with an amending formula agreed to
by a majority of the provinces-which is, I believe, what we
ought to be looking for —– –and it is quite another thing to do
what we are being asked to do now. If the original motion had
been introduced in that form, I believe it would have been
passed long ago with little debate, and would now have passed
the British Parliament and very likely would be the law in
Canada.
But, I say again, this is not a debate about patriation. The
debate we are having concerns unilaterally asking the Parlia~
ment of a foreign nation to do something to which the prov-
inces of Canada have not consented, and which would be
illegal and unconstitutional if attempted in Canada without
such consent.
Honourable senators, l should like to add my words of
congratulation to the many words of that nature which have
been spoken about the work of the Special Joint Committee on
the Constitution, which worked so hard and so long at this
resolution. No matter what one’s opinon may be about the
merits of what has resulted from the work of that committee,
there can be no doubt that its members deserve not only the
thanks of the two houses of Parliament but the thanks of the
country for the dedicated way in which they carried out their
work.
Since one of the co-chairman of that joint committee was
Senator Hays, I am glad to say to him that we are all proud of
the work that he did in carrying out his sometimes onerous
duties.
Q (I520)
A great many speeches have been made, and I suppose there
will be more. While I do not intend to refer to all of them,
there are some to which I would like to make reference. For
instance, I notice that in opening the debate in this house,
Senator Austin, very early in his speech, said:
————I also feel deeply the responsibility for marshalling in a
clear and cogent way the desirability and, even more, the
necessity of taking this critical step forward at one of the
most decisive moments in Canadian political life.
It seems to me that if, as Senator Austin said, he accepted
the responsibility for making a case for this proposal “in a
clear and cogent way,” his effort to do so was a great deal less
than successful. Of course, I think he was somewhat unfair to
himself in assuming the responsibility to show something that
does not exist, and so I suppose that one should not judge his
efforts too harshly.
Senator Austin also said in his speech that this joint resolu~
tion is evidence of the response of the rest of Canada to the
Quebec referendum in i980. Well, I am certainly not so
familiar with the attitude of the people of Quebec towards this
resolution as are those of my friends who live in that province.
If, however, one can judge from what those friends say and
from what one can observe in the press, on television and
elsewhere, what the people of Quebec think of this resolution
docs not seem to square with what Senator Austin thinks they
think. It does not seem to appear to them at all in the light in
which Senator Austin refers to the matter.
What evidence is there to support Senator Austin’s conten-
tion’? What do the leaders of all three provincial political
parties say-~though I recognize, of course, as well as anybody,
that one of those political parties is dedicated to leaving
Canada, in any event, and that one must keep this in mind in
assessing what they may say? What is the attitude of the
editors of the major newspapers of either language in Quebec?
As I understand from what I see, read and hear, the majority
of those editors have been expressing their dissatisfaction, not
only with the substance of the resolution but also with the
process by which the whole thing is being handled. What do
the people of Quebec themselves think’? Well, I suppose that is
very hard to assess, and I do not intend to do so, but I do note
that some people who are skilled, or who allege they are
skilled, in assessing the views of the people—and I refer to the
Gallup poll-—have found that 61 per cent of the people of
Quebec are not satisfied, either with the substance of the
resolution or the process by which it is being handled.
I also noted in the press last week that a distinguished
Canadian lawyer, who was once a member of the Supreme
Court of Canada and retired from it of his o\vn volition, Mr:
Yves Pratt, presided over a triumvirate of lawyers, including
himself, in preparing a written opinion for the Government of
Quebec as to the legality, the constitutionality or otherwise of
this proposal. As I have already said, no one can deny that the
Government of Quebec is not very enthusiastic about federal~
ism. Similarly, no one can deny that Mr. Yves Pratt is a
distinguished Canadian who believes in federalism and is-—and
I have no reason to believe otherwise—a very close friend of
the Prime Minister of Canada. Yet, if one looks at the (Globe
and Mail of March 4, I981, one can see that in the written
opinion prepared at the request of the province, that a triumvi-

1974 SENATE
DEBATES March 10, 1981
rate of lawyers presided over by Mr. Yves Pratt says that the
charter will change the rules of the constitutional game in
Canada, and goes on at some length about it.
Q (I525)
All of the evidence I have been able to find docs not bear out
the allegation made, not only by Senator Austin but by many
others, that this resolution is a response to the verdict of the
people of Quebec in the referendum of May last.
I must now make mention of the splendid speech delivered
by Senator Tremblay. It was comprehensive, learned and
clear, and ought to be required reading for anyone who wishes
to understand what this debate is about. I shall perhaps quote
from it as I speak today. In any event, I am sure that Senator
Tremblay deserves our very warm thanks for all the work and
ability he must have put into the task of preparing it.
I listened with great interest to the learned speech delivered
by Senator Lamontagnc, and I certainly congratulate him on
the depth and quality of his research, which must have been
extremely comprehensive and must have involved a great deal
of effort, although I must say that as I listened to Senator
Thompson‘s speech I wondered whether some of the quotations
or citations that Senator Lamontagne gave us were as full and
complete as they could have been.
It may well be that Senator Lamontagnc convinced himself
and many other senators that there is no legal rule requiring
the agreement of all the provinces before an Address is sent to
Her Majesty asking for changes in the Constitution. It may be
that in matters relating to the Canadian Constitution, just as
in everything else, the British Parliament has the legal right to
pass any law it pleases. I do not dispute that proposition, which
I think is probably accepted throughout the common law
portion of the world. It may even be that Senator Lamontagne
is correct in these two assertions, but we do not know that,
since the Supreme Court of Canada has not made any pro»
nouncement on either of them.
Honourable senators, even if Senator Lamontagne is right
on both these legal questions, however, that is no answer to the
fact that what this proposal amounts to is an attempt to have
the British Parliament deal with the rights of Canadians in a
way that the Prime Minister is not prepared to leave it to
Canadians to do, as and when and to the extent that Canadi~
ans may wish. This is simply an attempt to do in Britain what
cannot be done in Canada.
Honourable senators, insofar as I am concerned, Senator
Lamontagne can be completely right, in a legal sense, on the
two points that he emphasized. I believe, however, that that is
completely irrelevant to the objection which lies at the centre
of my opposition to this proposal. I object, honourable sena-
tors, to the Government of Canada going on bended knee, like
a subject nation, to the parliament of another country, and
asking that foreign parliament to impose laws upon Canada
which could not be imposed by Canadians without the conscnt
of the provinces. To me, that is being colonial in the most
objectionable sense. It is a barc~faced attempt to get Britain to
[Senator Smith.]
do what Canada cannot do, and to circumvent the Supreme
Court of Canada.
I now come to Senator Thompson‘s speech. It does seem to
me that Senator Thompson disposed pretty thoroughly of most
of Senator Lamontagne’s arguments in a clear and decisive
way-—
Senator Flynn: He certainly did!
Senator Smith: and I do not think they carry very much
persuasive value now.
The speech of Senator Thompson must have been a very
difficult one for him to make, as must have been the case with
others of his colleagues who took a similar stand. I honour and
congratulate them for their courage. Arid I congratulate Sena-
tor Thompson, too, on the extraordinary research on which his
speech was based, and on the clear and eloquent way in which
he marshalled his facts and presented his reasoning. I think
that no one can dispute his facts, or that his conclusions from
those facts are clear, logical and convincing. I intended to
present some of those historical facts and arguments myself,
although not in the depth that he did; but he presented them so
well that all I need say is that I agree with his facts, his
reasoning and his conclusion.
Q (1530)
Senator Steuart entertained us with quite a lively speech a
few days ago. He was very entertaining; but, honourable
senators, I must say that he took great care not to let his
entcrtainmcnt value be diminished by either facts or reason,
Indeed, as I listened to him, Icould visualize him sitting in the
Saskatchewan Legislature as Leader of the Opposition, par~
ticipating in the debate on the Address in reply to the Speech
from the Throne, or on a budget speech, and trying to divert
attention from the facts in that Speech from the Throne, or
budget speech, by being as lively, as witty, as vigorous and
sometimes, I think, even as loud as he could possibly be, and
thus restore morale to his colleagues»-just as those on his side
must have needed a restoration of morale after the way
Senator Thompson took apart the flimsy arguments we have
listened to on their behalf here over the last little while. That is
about all one need say about Senator Steuart‘s speech. I
appreciated it as a work of art, and I congratulate him upon
the splendid execution of a distracting and entertaining
presentation.
Senator Steuart: Bless you; bless you.
Senator Smith: I did not hear what Senator Steuart just
said, but I am sure it was complimentary.
Senator Steuart: I said, “Bless you; bless you.”
Senator Smith: I am afraid that blessing might not be quite
the laying on of hands.
Honourable senators, a great deal has been said, earnestly
and sincerely, by those who support the idea of a Charter of
Rights. A grcat deal has been said about the wonderful
improvement and the wonderful benefits that this proposed
charter will bring to the lives of the people of Canada.

March 10, I981 SENATE
DEBATES 1975
I believe there has been a great deal of exaggeration about
the alleged benefits which will result. Indeed, I am inclined to
the view that in the long run the proposed transfer of authority
to the courts from Parliament and the legislatures may be very
disappointing to those who are now looking forward to receiv-
ing so much from such a transfer. Certainly, such a transfer
will make the process of keeping up with changing social,
political and legal values much more difficult than would be
the case if the authority were left in the hands of the people
through their elected representatives.
Some Hon. Senators: Hear, hear.
Senator Smith: One has only to look at our great neighbour
to the south~whose head of state is doing us the honour of
visiting us today–~~-to make this observation, The difficulty of
getting their Constitution changed, for example, to provide for
equal rights legislation for women, ought to be a clear lesson in
this respect for all of us. This agitation has been going on in
the United States for I don’t know how many years and has
not yet been brought to fruition, although a legislature could
have done so very quickly.
Honourable senators, some people, in explaining the benefits
which they think will flow from the Charter of Rights, make
reference to the tragic experience of Japanese Canadians on
the Pacific coast during the second world war, and seem to
believe that the Charter of Rights would prevent such a thing
from ever happening again. That argument, in my opinion, is a
most misleading one. I deplore the action which was taken on
behalf of the people of Canada on that occasion; but one has
only to recall the extraordinary circumstances in which it took
place to have the gravest doubts as to whether in similar
circumstances similar action would not occur, no matter what
a Charter of Rights might say. It is worth recalling too that
the existence of highly praised constitutional provisions of the
United States did not prevent their taking the same or, at
least, very similar action to that which was taken in Canada.
I would not oppose a Charter of Rights if the process of
obtaining it took proper account of the rights of the provinces;
but I have very little confidence in the good it might do; and I
believe there are a good many honourable senators whose
views would not be greatly different from mine.
As to equalization, much has been made of the fact that the
draft Constitution, in clause 34(2), commits the Parliament
and the Government of Canada to the principle of equalization
payments. While the principle of equalization is of vital impor-
tance to those provinces, such as my own province, which are
less well off than others, this provision will neither help nor
improve the situation.
The principle of equalization may be contained in the new
Constitution, if and when it comes about, but if it comes about
as it now reads in that draft resolution, there is absolutely no
way of applying any legal sanctions to the Government of
Canada, or any other government, if that principle is not
followed. It does not make a jot or tittle of difference as to
equalization. Who is going to say to the Government of
Canada, “The equalization payment you are now giving us is
not in conformity with what you were committed to in the
Constitution,“ and enforce it? I can envisage the present
Government of Canada saying, “Well, that’s all right. If you
don’t like it, sec if you can get us dislodged from office at the
next electiong” and they will go on and do whatever they
please, whether or not it is in the Constitution.
As I said on an earlier occasion, equalization without some
sanction or some means of enforcing it is no more valuable or
useful than are the present arrangements. I emphasize again
that equalization, whether or not it is in the Constitution, will
be carried out exactly the way the Government of Canada
decides, insofar as federal funds are concerned, unless there is
some legal way to enforce that principle.
All we have to do is turn to the provision in the resolution,
which simply reads:
Parliament and the Government of Canada are com-
mitted to the principle of making equalization payments
to ensure that provincial governments havc sufficient
revenues to provide reasonably comparable levels of
public services at reasonably comparable levels of
taxation.
That is the principle, if honourable senators will pardon a
personal reference, that I have been arguing in Ottawa for well
over 20 years. That is the principle on which equalization is
now based, and that is the extent of the proposed provisions of
the Constitution. One has only to read it and look at the
present situation to know that it is not, in the slightest, any
more or any less than what is now happening, and that there is
no way to enforce it under the provision as we see it.
Honourable senators, I now turn to the question of a refe-
rendum. Firstly, I should like to refer to the referendum
provisions which appear in Part V under the heading “Interim
Amendment Procedure and Rules for its Replacement,”
clauses 36 to 44.
Q (1540)
Clause 42 is under the “Interim Amendment Procedure”
heading, but, according to my reading of the resolution, by
that provision a permanent amendment may be made-—or, at
least, an amendment as permanent as any other that can be
made. According to that clause, within two years of the
coming into force of thc act, the legislatures of seven or more
provinces having at least 80 per cent of the total population
may make a proposal to be substituted for the permanent
amendment proposal under clause 45(l)(b) which, of course, is
essentially the Victoria formula. If seven or more provinces do
that, then the Government of Canada shall cause a referen-
dum to be held to decide whether that provincial formula,
agreed upon by seven or more provinces having 80 per cent of
the population, “or paragraph 45(l)(b)”—the Victoria for-
mula—~“or any alternative thereto approved by resolutions of
the Senate and House of Commons . . . shall be adopted.”
In the first place, instead of encouraging the provinces to
agree on a formula in the hope that it would be accepted, it
would seem to me that this would drive them away from any
agreement. How can you expect seven or more provinces to

SENATE
DEBATES March I0, 198]
agree on a formula and propose it, knowing full well that the
Government of Canada can hold a referendum as to whether
that proposal will be adopted or any other proposal passed by
the Senate and House of Commons will be acceptable and
become our Constitution‘?
This referendum would be decided by all the people of
Canada, with no restriction as to majorities in any province.
While I have nothing against Ontario or Quebec, I cannot help
but observe that with well over one half of the population of
the country in these two central provinces, they could, and in
all probability would, dominate the voting, with no protection
being provided for the rest of us at all. That docs not seem to
me to be fair or reasonable, and, I submit, will clearly be a
strong incentive for the provinces not to risk getting themselves
into that kind of situation by agreeing on any new proposal
during the interim period. If they do agree, they then run the
risk of having their agreement defeated by some as yet
unknown federal alternative in a referendum which gives no
protection whatever to regions or provinces. Honourable seria-
tors, I submit that this is a provision which is worse than
useless, which is divisive and which ought not to be included in
the proposal.
There is another referendum proposal which is found in
clause 46. This is applicable after the interim period has
expired. You will note that it gives some protection to the
provinces. It requires that there be a national majority and a
majority in Ontario, in Quebec, in two or more of the western
provinces having at least 50 per cent of the western population,
and in two or more of the Atlantic provinces. It is not easy to
understand why the same protection is not given in a referen~
dum pursuant to the interim procedure undcr clause 42, which
I referred to a moment ago.
I agree with the preceding speakers who have argued that
the referendum has no place in the Canadian system of
government. A referendum is bound to be divisive. It is likely
to be decided partly by the feeling of the moment about some
particular subject, and partly by the most efficient propaganda
rather than by the intrinsic, long>term merits of the questions.
It is inconsistent with our parliamentary system of govern~
mcnt, and I repeat that it has no place in our Constitution.
I will now turn to the question of the Parliament of the
United Kingdom. A few days ago my colleague, Senator
Macquarrie, made reference to the deplorable situation which
seems to have developed between the Government of Canada
and the Government and the Parliament of the United King-
dom. Senator Macquarrie did so eloquently, clearly and in a
most interesting way, and I shall not try to repeat what he
said. He expressed my views better than I could have done,
and I commend them to honourable senators.
I cannot refrain, however, from saying how reprehensible l
find the conduct of the Prime Minister of Canada and the
Secretary of State for External Affairs in making the insulting
threats they have been about what Canada is going to do if the
United Kingdom Parliament does not do what Canada wants.
I do not find such conduct consistent with the dignity of
Canada or with the dignity with which I believe relations
[Senator Smith.]
between Canada and any foreign country should be conducted.
I feel that the Prime Minister reached the very epitome of
insulting nonsense when he threatened that if Britain did not
look out Canada would consider excluding her from the Com-
monwealth. His threats were almost equalled by the silly
words of the Secretary of State for External Affairs when he
threatened the Parliament of the United Kindgom with “grave
consequences” if it did not do what Canada wanted.
One might \vell ask how the Prime Minister intends to go
about excluding Britain from the Commonwealth. After all,
Canada, important, vigorous and growing though she is, is just
one member of the Commonwealth, with only 24 million
people. The Commonwealth consists of over 40 countries with
many hundreds of millions of people, approaching, I believe, a
billion. What is the Prime Minister going to do as he sets
about excluding Britain from the Commonwealth? Are those
the same grave consequences that the Secretary of State for
External Affairs has in mind? If not, what are those grave
consequences, and how docs he intend to in?ict them on
Britain? If it came to that, it is much more likely that we
would be tossed out.
D0 these two honourable gentlemen really imagine that the
Parliament and the people of Britain can be frightened by such
bombastic threats into doing something they might not wish to
do? I think you know the answer to that yourselves, honour-
able senators, and the answer is: Of course not. Going further,
I do not think that they should be asked to do more than
afford simple patriation with a temporary or permanent
amending formula acceptable to a substantial majority of the
provinces; but whatever they may be asked to do, they cannot
be frightened into doing it. Trying to frighten them only
reveals the weakness of the Canadian govcrnment’s position
and its own immaturity.
I turn now to the subject of federalism. It is clear that some
of the things proposed in the so-called Constitution Act, l98l
are contrary to the provisions of the British North America
Act. lndccd, the Prime Minister does not deny that that is so.
He does not deny that some of the proposals completely ignore
the rights given to the legislatures of the provinces. There are
some who have argued that this really does not matter. They
quote Sir John A. Macdonald and George Brown, those two
great and distinguished Fathers of Confederation, to show that
they would have preferred not only a central government with
stronger and wider jurisdiction, but, indeed, a unitary state. I
do not doubt that those two distinguished gentlemen from the
central part of the country did have such preferences. I do not
doubt that they argued for them whilc the Confederation
debates wcrc going on. The fact is that able, distinguished and
influential though they were, they were not able to convince
the delegates from the rest of the country to accept a union of
a unitary nature or anything like it. The fact that these two
able gentlemen wanted a unitary state but could not get it is
the clearest possible proof, I submit, that the three other
original provinces could not be persuaded to yield to a central
government those rights of the people which can best be

March 10, 1981 SENATE
DEBATES I977
protected and exercised by a level of government which is
closer to the people.
(I550)
No matter what Sir John A. Macdonald and George Brown
wanted, what they had to accept is clearly set out, in the main,
in sections 9l and 92 of the British North America Act. As all
honourable senators know, section 92 specifies the matters
which come under provincial jurisdiction. Section 92 begins
with the words:
In each Province the Legislature may exclusively make
Laws in relation to Matters coming within the Classes of
Subjects next hereinafter enumerated; that is to say,-
It then enumerates some I6 matters, the first of which is:
“The Amendment,,, of the Constitution of the Province,
except as regards the Office of Lieutenant~Governor.” Within
the matters therein set out, each province has complete and
sovereign jurisdiction, subject only to the power of reservation
and disallowance which has fallen out of use anyway.
Honourable senators, there could and would have been no
union or federation without leaving these enumerated matters
to provincial legislatures. There had to be, and there was,
acceptance of the view set out by Senator Tremblay at page
I833 of the Debates of the Senate of February 24, when he
said:
In short, the sharing ofjurisdictions means that nation-
al interests are best served by assigning legislative author-
ity to the provinces in certain matters. They are also best
served in other matters when that jurisdiction belongs to
the central Parliament.
I wish to give particular emphasis to one point about the
division of jurisdiction between Parliament and provincial
legislatures, one which I have not heard mentioned. It is that
jurisdiction over all of these matters belongs to the people and
not to governments, whether they be provincial governments or
the Government of Canada.
Hon. Senators: Hear, hear.
Senator Smith: The allocation or division of jurisdiction, as
set out in the B.N.A. Act, is merely an expression of the means
by which the people will exercise their sovereign authority:
that is, by means of the persons they elect to the federal
Parliament, in federal jurisdictions; and by means of the
people they elect to the legislatures of the provinces in which
they live, in provincial jurisdictions.
It is the duty of the premiers of those provinces to protect
the rights of the people for which they are responsible; and
they would be found wanting in their duty if they did not
protect those rights.
It has been popular, and perhaps it still is, to complain that
all the premiers and the provincial governments are trying to
do is to hold on to, or to increase, their own power. Honour-
able senators, I deny that that is so; I assert that it is not so.
They are protecting, for the people of their provinces, the
rights of those people to deal with certain things themselves in
their own legislatures, as provided by the British North Ameri-
ca Act, in carrying out the terms agreed upon at the time of
Confederation.
One has only to look at clause 3l(1)(b) of the proposed
resolution to know that it intends to take away from the people
of the provinces their right to have their legislatures deal with
the matters given to them under the British North America
Act. This provision reads:
31. (I) This Charter applies…
(b) to the legislature and government of each province
and to all matters within the authority of the legislature
of each province.
The fact that it is being passed, if it is passed at all, by the
parliament of a foreign country, does not make it any better;
indeed, it makes it much worse, This is the kind of provision
that could not get by the Supreme Court of Canada, if it were
being passed by the Parliament of Canada, without the con-
sent of the provinces. It is the sort of provision which would be
illegal and unconstitutional if enacted by the Parliament of
Canada without the consent of the provinces. There are a
number of other similar provisions in the proposed British
legislation which could not be enacted in Canada.
There is absolutely no doubt whatever that the Prime Minis-
ter is intending to ask the parliament of a foreign country to do
what the Parliament of Canada cannot do. He is trying to
avoid and evade the rights of Canadians by asking the Parlia-
ment ofGreat Britain to pass legislation affecting the individu-
al rights of every Canadian, knowing full well that the Parlia-
ment of Canada cannot legally do so.
Honourable senators, you have been very patient. I have
taken a good deal of your time, and I appreciate your atten-
tion. I conclude as I began, by saying again that this is not a
debate about patriation of the Constitution. It is a debate
about taking to another country proposed changes in the
Constitution which could not legally be made in Canada. I
believe in patriation—patriation with an amending formula
acceptable to Parliament and to a substantial majority of the
provinces, which I believe would not be hard to find. As for the
other contents of this proposal, let them be dealt with in
Canada by Canadians, in a way calculated to unite the country
rather than to divide it.
On motion of Senator Wood, debate adjourned.