Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Debate Continued” (11 March 1981)

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Date: 1981-03-11
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 1997-2011.
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March ll, l981 SENATE

The Senate resumed from yesterday the debate on the
motion of Senator Perrault that an Address be presented to
Her Majesty the Queen respecting the Constitution of Canada.
Hon. Dalia Wood: Honourable senators, I did not intend to
go beyond a token word in this debate, having had an opportu-
nity to work with all sides of Parliament in the hearings on the
Constitution of Canada, but in view of the circumstances I feel
that I should do so.

DEBATES March ll, 1981
The committee sessions were gruelling, but we were very
privileged, since we met so many truly national organizations
of Canada which made tremendous contributions towards
shaping the Constitution that they and their children will want
to enjoy.
When, however, I hear those with a different perspective
claim that this hammercd~out package is the result of the
machinations of one man, or that it is as divisive as the flag
debate, or is damaging to French-speaking Canadians, I feel
duty-bound to review events as I understand them, but without
the help of quotations from ivory-tower mentors, including
constitutional lawyers.
Generally, we are divided constitutionally because we have
never faced the reality of our degree of statehood. The new
package will determine this once and for all, and the “one
man” responsible for this is the one elected to lead a govern-
ment for all Canadians. It is ironic that senators from Quebec
consider it too compromising a package for French-speaking
Canadians of Quebec, and incredible when you think that for
the first time since i760 a constitutional document for all
Canada will have an official French version.
How much more could have been attained had the Govern-
ment of Quebec yielded to the concept of Canada as the people
did, in electing Pierre Trudeau and 73 Liberal members from
that province.
In 1864 Macdonald and Cartier were att0rneys~gencral for
Upper and Lower Canada, with Viscount Monck as the driv-
ing force. In the I978-79 debate we had the Honourable Jean
Chrétien with 10 attorneys~general, including Ray Romanow
as co-chairman for the provinces. Things were looking good
until the shopping list became too big for the store. This would
have been enough to make anyone say, “l tried my best and
gave my everything,“ but he did not, and may our country and
its historians forever inscribe Jean Chrétien as one of the
greatest great-grandsons of Confederation. His inspiration and
empathy during the hearings will remain as one of my most
epic memories.
The hearings were conducted with impressive skill, tact and
impartiality on the part ofthe joint chairmen, Serge loyal and
Senator Hays. A vote of thanks from the Senate is owed to
these two men.
Jake Epp, representing the Progressive Conservatives, comes
in for the highest commendation. Unlike others, he supports
patriation with an amending formula and an entrenched
Viewpoints differed, but revealed nothing insurmountable
except, of course, the usual caveat that all was generally in
order, just so long as the premiers agreed. My ensuing probe
into political history will indicate this impossibility.
There was one disappointing, if not bewildering, develop-
ment during this experience, emanating from the man who is
quoted in Hansard as saying:
Mr. Chairman, this is a major first step in the new
chapter of what, I hope, is a very exciting book in the new
Canada of the twentieth and twenty-first centuries.
[Senator Wood.)
A few weeks later, when Premier Blakeney reversed his
position, Lorne Nystrom, the man who made that statement
and who had worked so diligently with us, felt compelled to
reverse his position.
Honourable senators, we could quote many sources and
many personalities who throughout our history have fought
for home rule and national sovereignty. It would be painful for
me to review all the events involved, and even disconcerting
for anyone to listen to me do so.
Let us simply recall that the first all-Canada efforts in this
direction arose in the 1830s, and after some years of systemat-
ic obstruction, hangings and exilings by the colonial govern-
ment, the two Canadas were granted the Act of Union of I848
setting up legislatures and certain autonomics. You will recall
that when this act was proclaimed by Lord Elgin, he was
virtually pilloried by the ruling “Family Compact” because he
sided with the “Reformists,” unlike Governor Head who was
chastised by the home government for siding with the Tories.
When, some 20 years later, the imperial government decid-
ed, for reasons of better management, security and trade, to
re~organize their colonies in British North America, some 30
parliamentarians met in Quebec in 1864 and in several weeks
agreed on 72 articles which were to be promulgated by the
imperial government. Governor General Lord Monck, because
of his untiring efforts, patience, lrish empathy and experience
as a Liberal member of Parliament at Westminster, was the
man most responsible for the compromise solutions of the
British North America Act, prompting and motivating discus-
sions of it in Canada and parlaying it through the corridors of
the Parliament at Westminster, which agreed that national
defence on our 3,000 mile border had to be paid for and
organized by the colony itself. There was no Prime Minister
during that period of the colony, but we have one today, a
home-grown Canadian who was born in Quebec, and whether
or not he is your choice as Prime Minister, he has the
constitutional right to govern on behalfof all Canadians. That
is a fundamental difference in the two debates.
Q (l6l?)
These new regulations would then apply to Canada as well
as to Nova Scotia and New Brunswick. History related most
dramatically Nova Scotia’s reaction to assuming a privileged
position which dealt directly with the home office, as opposed
to one which required a submission to a larger branch office.
Newfoundland attended the conference as an observer and
agreed to join Confederation 85 years later–that is, once they
saw it starting to work for the maritimes.
ln the meantime, national defence was a responsibility of
the imperial government. Places like Prince Edward Island,
the other island colony, had no recourse but to turn to the
Canadian treasury to enable them to link up with the emerging
transportation network and to provide the means to repurchase
its land from the absentee landlords who had acquired it via
Westminster patronage. Farmers would now have freehold
tenure. This reminds me of the statement made at the last
conference, a reference to their first nine inches of soil as their
natural resource.

March ll, i981 SENATE
Therefore, armed with the Colonial Act of 1865, the imperi-
al government was able to annex other land areas as they saw
fit. I suppose it was very often a sink-or-swim choice, but
regardless, we cannot turn back the clock. Furthermore, I
could not, in hindsight, wish for or imagine a better institution
to oversee our affairs of state than the mother Parliament at
Westminster. In 1868 Nova Scotia instituted separation pro-
ceedings, but Westminster said no.
As time rolled along trade routes diversified, corporate
marketing no longer needed ?ags and wars were becoming
very costly. As a result, the colonies became a liability. Hence,
the Statute of Westminster was enacted and we were told to
fly on our own wings. But we could not make a pact among
ourselves. The present youth of our great country is different
from that of the thirties. Need we remind ourselves of those
days? What alternatives will they have if we do not succeed
this time‘?
We failed in 1931 supposedly because we could not produce
an amending formula which was appropriate to our sovereign-
ty then. any more than we can now, some 50 years later. No
one in this chamber can spend the next 50 years on this
project; and, if they could, the people of Canada would not.
They want it done now, so let us do it now.
I do not agree with Senator Cook, who claims that we have
been independent since 1931. We could have been, but the
provinces were not ready to agree on the mandatory amending
formula. But here I yield to constitutional experts, our crown
lawyers. Can Senator Cook assure the Canadian people that, if
we ask for simple patriation with no amending formula, cer-
tain provincial governments will not simply proclaim their
autonomy in the interim? After all, it could be argued that
they are in a quasi-legal position to attempt to do so. But then,
I have never read law.
May I read you section 7(1) of the Statute of Westminster,
Nothing in this Act shall be deemed to apply to the
repeal, amendment or alteration of the British North
America Acts, I867 to 1930, or any order, rule or regula-
tion made thereunder.
It seemed innocent enough when we changed from a domin-
ion government to a federal government. Most Canadians
associated this with a United States type of federal govern-
mcnt, but some conveniently saw it as an opportunity to bring
Canada down to size and preferred to use the definition of a
federation of states. We are not the government of a federa-
tion; rather, we are a federal government. This is not a lesson
in history; it is more one in emotion and basic understanding of
nationhood and security.
Respect for our degree of sovereignty with regard to both
domestic and international matters has now reached a point
where the world will soon be questioning our passports, our
currency, our 200-milc limit, our international trade pacts and
so forth.
The country to the south of us certainly must have more
than a passing interest in our affairs. We know that Washing-
ton has had a Quebec desk for some time. I would imagine
that they have now added a few more, pending the degree of
sovereignty desired by the provincial petitioners to Westmin-
The fact that the Manitoba Court of Appeal has found the
federal government in order has not dissuaded the premiers
from dealing with the Colonial Office, nor has it altered the
thinking of those in this House opposing the legislation on
their behalf. The notion of provincial lobbyists or anyone
petitioning the Colonial Office or Foreign Office of another
country because they assume Westminster could obstruct is
somewhat repugnant to me, as I think it is to most Canadians.
Let us formally dissociate ourselves from any more of this
undermining of our integrity as a people.
Unilateral action is a major hurdle in the minds of many
people. It is an expression which both haunts us and rekindles
our complexes as unassured Canadians. My view is that joint
action with the provinces, though desirable, is just as impos-
sible now as it was in 1867, when the British North America
Act was imposed on us. Everyone was supposedly robbed
then——everyone, that is, except the people who within that
framework built us a nation before we could constitutionally
become one. I also hold the view that we have progressed too
far and have committed ourselves to too much to remain a
non-nation of differing, checkerboard statehoods.
If, as suggested, we heed the advice of those who advocate
trying “one more time” to achieve a joint approach, which one
of the common front of premiers would compromise provincial
benefits for those of value to the nation as a whole? I would
not even venture a guess. As a matter of fact, in such a
trade-off, wc might find Ontario saying, “Enough. We will
now deal directly with Westminster.”
I think if you were to list all the demands and conditions of
the premiers and study them, it would be obvious that, even if
Westminster could grant them, we would have nothing more
than a secretariat in lieu of a national government. But it
seems fashionable to blame the federal government which
must and does say “No.” And is this national government,
elected by the entire constituency of Canada, supposed to
remain muzzled, lest it be considered divisive for refusing to
allow one premier an exclusivity on something which belongs
to all and serves to unite all Canada’?
The fact that the provinces are daily undermining federal
institutions is not considered by some to be divisive. The fact
that one or two or perhaps three provinces want out-——not for
reasons of discontent but, rather, for supposed economic short-
term advantages or cultural supremacy~—again is not con-
sidered divisive; rather the national government, which with-
stands their barrages and which cannot give to one something
which belongs to all, is called the divisive one.
Provincial governments have difficulties with competing in-
terests among themselves. Most premiers will assume no re-
sponsibility in seeking a consensus for Canada at any cost to
their own governments. Since their electorate is strictly provin-

DEBATES March 11, 1981
cial, their strategy, as shortsighted as it may seem, can also
appear to be astute, and therein lies the difficulty.
Are federal members of Parliament and senators simply an
extension of the provincial members or do they represent the
constituents directly? Surely the whole has to be more respon-
sible than any one part and at the same time equal to all the
parts combined. Are we, as members of the Senate, not
compelled to look at matters from and within the pan-Canada
Premiers whose interests and degrees of political stability
vary cannot be expected to agree with anyone about anything,
not evcn among themselves. The common front of premiers,
so-called, has but one goal—to prevent the supposed encroach-
ment of national government. Rather, they want a mishmash,
checkerboard series of sovereignty associates, with some
premiers being more Canadian than others.
Has anyone asked where the funds for equalization pay-
mcnts would come from’? And yet, at present, that is an
essential basis of Confederation. Have the “have” provinces
made private deals with the “have-nets”? Is it the same
approach as Quebec suggested for languages of education-A
reciprocal arrangements within a much looser federation, with
perhaps a common currency, and certainly a fragmented 200-
milc limit? Do we honestly expect Canada to maintain sover-
eignty in the Arctic, when it would not be able to proclaim
jurisdiction over five or six federated states on its eastern
shores? Honourable senators, before suggesting “one more
time”, please consider the costs in terms of anguish and
national credibility. Let us for a moment look at the record of
fedcral~provincial conferences and see if we can find a way
The first meeting convened to study the question of Cana-
da’s power to amend its own Constitution and that of owner-
ship of natural resources was in 1927. The Right Honourable
W. L. Mackenzie King and the Honourable Ernest Lapointe
argued for that power on the basis that self-respect as a nation
demanded that the dominion Parliament should have that
right to self-determination. Premier Taschereau objected on
the ground that, if that power were formally granted, it might
lead to the endangerment of provincial jurisdiction and rights.
Premier Ferguson of Ontario maintained that such a power
would jeopardize the Dominion‘s links with the United
So much for the great dividers of 1927! Certainly, no
aspersions can be cast on the Tories on that one!
The four western premiers reported that there was strong
support in their provinces for Senate reform, but they could
not agree upon the nature of such reforms. It seems that “44″
has been around a long time! But then that”s normal: the
premiers never understood us; they still don’t.
Q (1620)
The 1931 conference was convened by the Right Honour-
able R. B. Bennett. The purpose was to give the provinces an
opportunity to express their views with regard to the imperial
Statute of Westminster. There was no objection in principle
[Senator Wood.)
made to the proposed legislation, and a proposal that the
provisions of the statute relating to the repeal of the Colonial
Laws Validity Act should extend to the provinces was
However, it was subsequently desired by some provinces
that the question of powers and procedures in respect of
constitutional amendments should be discussed. This was
found to be impossible at the meeting, but it was agreed that a
constitutional conference should be summoned as soon as
Here we go again. The tragedy here was that since Canada
found no amending formula, as had the other dominions, it
might be argued that the Colonial Laws Validity Act was still
very much in force.
Prime Minister Bennett convened another conference in
1933, and apparently the domestic state of affairs had the
provinces asking the federal government to continue its assist-
ance to the provinces in the discharge of their constitutional
obligations so that they might effectively deal “with the
present unprecedented economic conditions by distribution of
direct relief.” The minutes go on to say that the relative
legislation jurisdiction of the dominion and the provinces
respecting old age pensions, unemployment and social insur-
ance were discussed without any resolution being adopted.
The next conference, which took place in 1934, was unevent-
ful. It dealt with a petition by Quebec for permission to
conduct lotteries.
The Right Honourable W. L. Mackenzie King convened the
1935 conference to study all aspects of federal-provincial
relations, including a revision of the British North America
Act. The subconference passed a resolution stating: first, that
amendments to the British North America Act are necessary
and imperative; and, second, that Canada should have the
power to amend its own Constitution. New Brunswick cast a
negative vote because it could not agree to all the terms.
In 1941 the Right Honourable W. L. Mackenzie King again
convened a conference to obtain the views of the nine provinces
on the 1940 Rowell-Sirois Report on Dominion-Provincial
Relations. However, when the agenda committee made its
report, Alberta, Ontario and British Columbia were opposed in
principle. The conference adjourned without even a discussion
of the constitutional issue.
Then in 1950 the Right Honourable Louis St. Laurent’s
conference brought unanimous agreement that Canada should
have the power to amend its Constitution itself. There were
eight points of agreement and it was suggested that a standing
committee be set up. Those recommendations were adopted.
There was a second session of the 1950 conference, which
reported that it was not possible to secure unanimous agree-
ment but that there would be a continuing committee of
attorneys general which would report in December 1950. At
the end of 1950 it was decided to suspend that committee
pending consideration of tax agreements and rclatcd matters.
There were four further meetings of attorneys general in
1960-61. The initiative for that came from Premier Lesage. lt

March 11, 1981 SENATE
was during those meetings that the Honourable Davey Fulton
submitted his proposals to domicile the British North America
Act in Canada with a permanent method of amendment. All
provinces except Quebec were opposed to that. It was recorded
there that the British North America Act could be frozen
indefinitely, if the amending formula were not achieved before
In the September conference of that 1961 series, the Hon-
ourable Davey Fulton hinted that the federal government
might seek patriation of the British North America Act, even
if unanimous consent could not be achieved. That must have
been most disconcerting for the Diefenbaker government.
In August 1964 the Right Honourable Lester B. Pearson
presided over a conference held in Charlottetown, Prince
Edward island. Quebec issued a separate communique stating
its reservations with respect to the 1961 formula. Premier
Robichaud of New Brunswick suggested that there should be a
union of maritime provinces, but Premier Shaw of Prince
Edward Island disagreed with that.
The conference reconvened in Ottawa in October, again
with the Right Honourable Lester B. Pearson presiding. The
major achievement of that session was that the premiers
approved unanimously a unanimous report issued by the attor-
neys general. Once again, the confcrence ended with the
issuance of a communique stating that the various govern-
ments would continue to study the workings of the Canadian
The next constitutional conference took place in 1968 and
dealt with the desirability of entrenching a Charter of Rights
in the Constitution. The Right Honourable Pierre Elliott
Trudeau, then the Minister of Justice, argued that the division
of jurisdiction between the federal government and the prov-
inces with respect to the rights of Canadians under the prcscnt
system required the entrenchment of a Charter of Rights, if
those rights were to be fully protected. He argued that such an
entrenched charter would not amount to a transfer of power
from one level of government to another but would, instead, be
a restriction of both levels of government in favour of the
rights of Canadians. Provisions affecting those rights would
not be subject to amendment by a government through a
simple act of a legislature; rather, amendment of such provi-
sions would require the federal Parliament and a given number
of legislatures, the number to be determined by an amending
formula, to agree to any changes.
Honourable senators, docs that appear to you as such a
divisive statement? It is somewhat painful history in retro-
spect, but some of you were there.
Once again, the conference ended with a proposal to estab-
lish a continuing committee of officials.
At the second meeting of that conference discussion rather
centred on taxation and regional disparities. Premier Weir of
Manitoba said that a discussion of these matters should take
precedence over concerns for language and the entrenehmcnt
of fundamental rights. It was at that meeting that Attorney
General Donahoe of Nova Scotia argued that the new Consti~
tution should include the principle of equalization and should
set out its formula. A committee was formed to study prob-
lems of regional disparities, official languages and the Charter
of Rights.
Alberta stated that the concept of two languages was
“objectionable and unacceptable”-—a still familiar cry from
the west federation.
“Quebec like any state must have increased powers,“ said
Premier Bertrand, in order to “proportionally shoulder its
responsibility.” The same meeting heard the maritime prov-
inces appeal jointly for a strong central government. It would
seem, honourable senators, that we are always returning to
square one.
The June 1969 conference dealt with taxing, spending, and
regional disparities in the constitutional context. It was agreed
then to meet again at the year’s end. Well, December 1969
found Premier Bertrand disagreeing with Prime Minister Tru-
deau’s proposals. Premiers Robarts and Bennett supported the
objection in part, while Premier Bennett reiterated his pro-
posals for a five-region Canada. Premier Smith of Nova Scotia
argued that equalization powers should be the exclusive right
of the federal Parliament, while the premiers of British
Columbia and Alberta contended that a system of guaranteed
annual incomes would be far more effective.
ln retrospect, honourable senators, it seems that the more
we probe, the more we find division and vacillation among the
At the conference of 1970 Premier Robarts stressed that the
immediate and high priority should be to examine and agree
upon an amending formula. Consequently, two additional
meetings were agreed to.
At the conference of February 1971 the federal and provin-
cial governments agreed to proceed as quickly as possible to
patriate the Constitution with an appropriate amending for-
mula. They also agreed to entrench fundamental political
rights and language legislation, providing it had a sufficient-
number clause. Matters concerning regional disparities and the
Supreme Court were also settled. However, Premier Thatcher
disagreed with Quebec in respect of the privacy of financing
and administration in certain areas, and Prime Minister Tru-
deau noted that, if a province were to go too far in its own
special way, it would not be able to have the equalization
grants which are paid by the federal government to the poorer
Almost, but not quite, honourable senators; but we are
getting closer.
In June 1971 the Right Honourable Pierre Elliott Trudeau
called a conference at Victoria at the suggestion of Premier
Bennett. The charter which had resulted from the consensus of
the previous conference was presented for acceptance by the
provinces. Just about everything imaginable was included.
Reservations were expressed, but by the deadline of June 28
eight provincial governments had accepted, while Quebec
refused to recommend the charter to its national assembly.

2002 SEN ATE
DEBATES March ll, I981
So close and now so far. Does anyone still think unanimity
should be the criterion instead of unilateral action?
The conference that ensued in l978*which Quebec attend-
ed only as an observer pending the referendum-»-did not seem
unduly alarming, because by that time several provinces had
studied and copied Quebec’s bargaining techniques. But, in the
end, those techniques have achieved nothing, either for Quebec
or for them, or for Canada.
At that same conference Quebec and the four western
provinces were opposed to the entrenehment of a Charter of
Rights Premiers Levesque, Lougheed and Bennett were
opposed to the official languages aspect, but the real thrust
was towards having provincial sovereignty ranging from
increasing powers in certain areas to having the entire power
in certain areas.
In the conference of February 1979 Premier Davis argued
that the federal government had the power to seek patriation
unilaterally and should do so immediately. Premiers Levesque
and Blakeney, however, argued that firm agreements on eon-
stitutional change should be achieved before Ottawa sought
patriation. It was at that time that Prime Minister Trudeau
said he would meet one more time with the premiers before
seeking patriation unilaterally.
0 (I630)
The ensuing conference of June I980 started in turmoil
when Premier Levesque opposed in principle the first five
words of the statement, which read “We, the people of Cana-
da” and referred to it as centralist thinking, ignoring the
duality of Canada and Quebec’s right to self-determination.
Other premiers also rejected the statement on principle.
Honourable senators, I suppose the most crucial problem
facing some legislators in Canada is, what will they do for an
encore after the Canadian people have won their Constitution‘?
At present the rights and freedoms of Canadians are not
constitutionally guaranteed, and it has become increasingly
evident that more protection than the ordinary process of
parliamentary democracy is required.
The amending process which we are bringing forward is a
just one for all. It re?ects the federal and the regional nature
of Canada. For the first time it formally involves the provinces
in the amending procedure, a procedure which is designed to
ensure that there is substantial support for amendment to the
Constitution in each of the four regions of Canada. It provides
an opportunity for the provincial governments to present an
alternative formula for the approval of the people of Canada,
ifthe provincial governments can agree on one to be presented.
Legislative majorities should not have complete freedom to
act inadvertently or deliberately against the rights of minori-
ties. We must not forget such incidents as the Padlock Law of
I937, the asbestos strike and how it affected civil liberties, Bill
22, Bill 101, or the occurrences involving Japanese Canadians,
the Manitoba schools legislation, Witnesses of Jehovah, and
Italian Canadians in the second world war.
Here, I must interject a rebuke to Senator Thompson when
he referred to his working in the Italian district of his riding
{Senator Wood.]
and dressing as shabbily as he could. It takes more than
shabby clothes to simulate a minority-yes, even an Italian
one. I should know, because this includes me and my own
parents. Can we not find better ways of identifying ourselves,
for in effect we are all ethnic, even those of us from France
and the United Kingdom‘! Rather, Senator Thompson should
direct his efforts at least to the mobility clauses in the charter
and use his experience to help improve them, rather than join
those who would not want migrant construction workers to
have every opportunity of earning a living. Let us re~instill
some of that vigor that Viscount Monck, our Liberal, Irish,
Governor General, gave us in the 1860s.
Travel naturally relates to mobility rights, which are guar-
anteed in the charter. The Newfoundlander who found a
career in British Columbia will now have that right to work
guaranteed. Some provinces do not like this. While it may be
good for the pursuits of the individual, it may upset their
power in certain jurisdictions. In other words, they put their
own interests over human rights.
My personal esteem for Senator Thompson will, I hope,
allow me to relate some plights of minorities in Montreal,
where I have lived as one for the past 2,922 weeks. In
Montreal, during the dirty thirties, neither the Irish nor the
Italians went to work in tuxedos, rented or otherwise. The
Italians could not gain access to French-speaking institutions,
because they were “des immigrés”; nor could they gain admis-
sion to Protestant schools, because they were Papists_ The
Irish, on the other hand, had access to Catholic schooling, but
in the French language only. The solution was interesting.
When the Irish demanded Catholic schooling in English and
were squelched under threat of excommunication, some of the
more affluent in the community directly petitioned the Pope,
whereupon they won their case. Here is an example of a
home-grown Canadian problem solved in Italy. Minorities of
Roman Catholic faith were now able to enter a subsection of
the school system. This grew to such a point where it had to be
stopped, because decreasing enrolment was causing empty
classes in the schools of the majority.
The street riots of St, Leonard were the precursor of Bill 22,
which was instituted to cancel Bill 63, which had allowed the
parents to choose among the options available. When anyone’s
right of choice is removed, the removers will eventually find
themselves in very deep trouble, but, in the meantime, it would
be better and human not to remove acquired rights. The
federal charter will make this type of legislation much more
difficult to enact. Canadians should have their choice, be it
schooling, religion, or domicile.
It has been said that a referendum is foreign to our system.
That is not really the case. There was an epic one conducted in
I980, the results of which are manifested in our package.
Referenda, I say, are here to stay, thanks to a province. The
charter will also levy controls on public servants as they
interpret and enforce regulations, and this in itself will human»
ize the process of government.
The official opposition in the Commons opposes the charter
in general, just as they traditionally oppose a budget speech-—

March 11,1981 SENATE
as though the people take them seriously. However, no one has
yet opposed any one aspect of the charter. Rather, the whole
resolution seems wrong~-—that is, if it is enacted with patria-
tion; although that, too, is acceptable if it is enacted at a later
Honourable senators, experience over recent years should
prove that provincial legislators generally are not interested in
the larger constituency of Canada. They will agree with all the
individual rights imaginable, but at a price, and that price is
the essence of national government and our institutions needed
to enforce the maintenance of these rights, let alone our
impact abroad.
Courts have traditionally settled disputes between citizens
and the state, and in the future they would have the charter to
guide them. We all remember Roncarelli vs. Dup/esris and the
role of the Supreme Court.
The charter will guarantee mobility. Some premiers oppose
this provision. I hope that no member of the Senate, regardless
of provincial party affiliation, will support that opposition. The
charter will protect citizens from discrimination on the basis of
race, national or ethnic origin, colour, religion, age, sex,
physical or mental disability. The federal and provincial gov-
ernments will be given a two-year reprieve on this one, and,
Heaven knows, we may need it. Aboriginal rights are to be
recognized and affirmed.
Which of these new-found and guaranteed freedoms can
honourable senators honestly oppose? Even if the adjustment
is too much for some premiers, would honourable senators
oppose these freedoms with equal zeal if Liberal premiers were
Part I of the Constitution Act, 1981 was changed in com-
mittee. To cite an example, clause I of Part I was altered after
representations and suggestions by the following organizations:
the Canadian Jewish Congress; the Canadian Civil Liberties
Association; Societé franco-manitobaine; the British Columbia
Civil Liberties Association; the Canadian Federation of Civil
Liberties and Human Rights Associations; the Canadian
Human Rights Commission; the Canadian Advisory Council
on the Status of Women; the National Association of Japanese
Canadians; the Ukrainian Canadian Committee; the National
Association of Women and the Law; the Council of National
Ethnocultural Organizations of Canada; and the Coalition for
the Protection of Human Life—-I could go on. I believe there
are another ten organizations.
Clause 2 was amended in response to testimony from the
Canadian Bar Association, the Canadian Council on Social
Development, and so on.
Have the opposing senators who are members of the
Canadian Bar expressed their indignation to these groups for
their alleged support of Canadian nationhood? Are the hon»
ourable senators who are members of the Bar aware that their
profession’s spokespersons have also prepared and submitted a
list of principles which could be used to describe the character,
the institutions and the purpose of Canadians‘? To quote in
part, they say, “The Canadian Constitution should sell the
essential attributes of Canadian federalism.” Then, they go on
to mention eight essential attributes.
All told, some 97 groups of witnesses advised the Joint
Committee on the Constitution. Their testimony overwhelm-
ingly supported the principle of patriation initiatives that
include a Charter of Rights. Also, some 1,280 written submis-
SiOnS were received. The committee held 106 meetings over a
four~month period and debated the resolution for 267 hours.
Then some 67 amendments were made to the original draft,
many of which profoundly strengthened the position and digni-
ty of the Canadian people, and affirm our attitude of giving
when we can, but never taking any rights away from anyone.
This hardly seems like unilateral action, especially when coin-
pared to actual representation by Canadians in the Statute of
Westminster or the British North America Act.
These aforementioned groups, who by and large represent
national memberships, made the decision to petition their
Canadian Parliament, rather than lobby Westminster, as it
would have been beneath their dignity. That should tell us
something. Is it wrong for this house to support these people in
their desire for meaningful nationhood’? Is it wrong for us to
release them from the restraints of the Colonial Laws Validity
Act, 1865, which technically is still within the framework of
our statutes? Why is there such obstruction, which is generally
along party lines? Which item or aspect is offensive, and, if
we, the senators of Canada, had to face an electorate rather
than broad public opinion-—which I will not dwell upon-
which section of the charter would we eliminate on behalf of
the people of Canada? Would we say that human rights and
dignity arc a provincial affair? Surely at some time or another,
either at home or internationally, something other than the
Canadian Mint has to be a national responsibility.
Q H640)
Honourable senators, would we deny our constituentshwho,
in our case, are the people in all of Canada-the most up~to-
date Charter of Rights in the world, one which no provincial
legislature can change on an ad hoe basis?
Federal governments will come and go, as will provincial
legislatures, actually in a ratio of 10 to 1, but our Parliament
and our first Canadian-born charter, our really home-grown
assertion of and momentum to nationhood, must be ensh-
rined-and this with the distinguished blessing of this
Honourable senators, have you ever considered that this
package could conceivably usher in a better Canada, in so
many respects? Some may have reservations, and I respect
that fact, but what is the alternative‘? Let us assume our
rcsponsibility—which is for the common good and welfare of
all regions and all the peoples of Canada.
Separatism started in I868, with only the federal govern-
ment as a bulwark. Let us not unduly weaken the fabric by
shouldering the provinces who often turn one against the other.
The resulting scenarios are too horrible to imagine.
The Quebec government should be protesting the demands
of Newfoundland, Alberta and Saskatchewan; but it is not,

DEBATES March ll. I981
and it will not because, with a separatist mentality, it knows it
will have to negotiate oil and offshore rights directly with
those emerging states. Why, in the meantime, should it bother
with Canada?
Can you imagine the bargaining position of Prince Edward
Island in this triangle, yet it supports the common front? It is,
indeed, incredible. The common-front provinces welcome
Prince Edward Island as a number only—-pawns in a game the
Islanders cannot possibly win. Do they not realize that their
equalization payments can only be derived from resource
revenue-sharing’? Yet they support the provinces which would
deprive them of this. Ontario cannot be asked to do it alone.
Can Senators Cook, Thompson and Deschatelets devise
some other ways to secure meaningful nationhood, to prevent
the erosion of rights; to stand on guard against future pres-
sures from within and without; and to dissuade premiers from
organizing lobbies in London and perhaps other capitals—as
other capitals have lobbyists in some of our provincial capi-
tals? This does not exactly instill faith in one‘s own
Can we not guarantee Canadians at least the security of
remaining Canadian, in spite of some provincial threats to the
contrary? Lawyers know full well, when entering a debate on
behalf of a client, that one of the clients is going to be the
loser. Honourable senators, the client in this debate is all of us
and the people we represent. Either we all win or we all lose.
Please treat this package with a different routine from the
superficial criticisms ofa budget debate.
I too, like Senator Deschatelets, would want to represent
Quebecers, but all Quebecers, including those who welcomed
the Norwegians in the first century, as well as those from
many lands who followed in succeeding decades. Governments
must speak the official language of the people and not vice
versa. We want rights that can be legally protected for all
Canadians and not be subject to the whim of acceptance by
provincial governments, nor, for that matter, the whim of a
federal government. You may argue that protection by Parlia~
ment has been safe enough protection for individual rights in
Canada, We can use Bill l0l as an example of collective rights
of a majority over those of a minority.
The Canadians of Quebec, just a year ago, outvotcd the
would-be anti-Canadians and are thereby assured a place in
the Constitution Act, 1981. They are and want to remain
Canadian. We promised them a framework whereby it would
be possible for them to travel and live first-class anywhere in
Canada. Is it any wonder the separatist Government of
Quebec is petitioning Westminster on its own, with disregard
for those Canadians who said “No” to them on May 20, 1980?
Do you realize how our package foils their game plan? Surely,
honourable senators, you will not support the aims of the
Péquiste government, but rather those of the majority of
Quebecers who are counting on us.
On the. eve of the referendum, our Prime Minister said:
I know that I can solemnly promise that should the
“No” side win, we will set in motion forthwith, the
[Senator Wood]
mechanism required for renewing the Constitution and
that we will not stop until we have achieved this goal.
The Prime Minister was relying on the goodwill which many
of the premiers expressed during the referendum campaign to
carry out the necessary reform through federal-provincial
Last September I attended the federal-provincial confer-
ence, and, instead of seeing people involved in negotiations to
achieve the goal of a renewed Constitution, I saw our first
ministers discuss power-sharing issues above all else. They
were not too anxious or concerned about the patriation of our
Constitution, and were certainly not too concerned about a
Finally, on the other hand, you have this young Inuit
member of Parliament, Peter Ittinuar, who, at the hearing on
January 30, said:
However, there is one person I would like to mention
that I think perhaps whose patience has been tried, but
that is the Prime Minister of Canada, without whose
approval we would not be doing this today. I personally,
and on behalf of the aboriginal peoples, would like to
thank him and together we will build a great nation.
We will build a great nation!
Honourable senators, let us make this our commitment also.
Hon. Senators: Hear, hear.
Hon. John M. Godfrey: Honourable senators, in the first
sentence of his dissenting judgment in the reference by the
Manitoba government on this resolution, Mr. Justice O‘Sul-
livan, ofthe Court of Appeal of Manitoba, said:
In this constitutional ease, the submission of the Attor-
ney-General of Canada ends up in the proposition that a
political party, if it forms the majority of both houses of
the Canadian Parliament, has the power to amend the
constitution of our country as it pleases.
In my opinion, this accurately, if somewhat disturbingly,
summarizes the position of the federal government with
respect to this resolution before the Parliament of Canada. I
am sure that most Canadians who do not profess to having any
expertise in constitutional law would think that, on the face of
it, that submission is absurd. This submission is, of course, one
of the principal issues I will be discussing later in my speech.
When the Liberal Whip, Senator Petten, wants to find out
how you intend to vote on any particular matter, his approach
is to ask his Liberal colleague whether he is having any
problem with the matter. When this question was put to me
with respect to this resolution, my answer was that I certainly
had, and may I say that I still have.
It was not long after this resolution was presented that I was
approached by one of my fellow Liberal senators, for whom I
have great regard, who asked me to say that I would vote
against the resolution unless clause 44 were amended so that
the Senate would retain its right of absolute veto with respect
to any proposed constitutional amendment that would change
or abolish the Senate. May I remind honourable senators that

March 11,1981 SENATE
clause 44 gave the Senate a right of suspensive veto for 90
days only in connection with those amendments to the Consti-
tution requiring the amending formula provided for in clauses
4| and 42 ofthe original resolution. This meant, in effect, that
the Senate could be fundamentally changed or abolished with-
out the Senate‘s consent.
Honourable senators, I was a member of, and very active on,
the Special Senate Committee on the Constitution, which was
appointed on June 28, 1978 to consider proposed constitutional
changes, including reform of the Senate. That committee
never did make a formal report with respect to Senate reform,
although it did come to some tentative conclusions which it
informally made known to the government late in December
1978, so that they could be considered before a fcdcral-provin-
cial meeting of ministers held in January 1979.
To say that the committee lacked a sense of urgency on the
subject of Senate reform is to put it mildly. It was not even
reconstituted after the federal election of May 1979. Since
being appointed to the Senate in 1973, I would describe the
Senate‘s record with respect to reform of itself as one of
creative inertia»—lots of talk from individual senators, accom-
panied in some cases by at certain amount of blustcr, but no
action except when the continuance of its existence in its
present form is threatened from time to time.
Such a threat was again perceived in the federal-provincial
talks on constitutional reform being held in the summer of
1980, so on July 8, 1980 the question of constitutional reform
was again referred to a committee, this time the Standing
Senate Committee on Legal and Constitutional Affairs, which
committee appointed a subcommittee to consider the matter.
Ten additional senators were appointed to that committee for
the express purpose of serving on the subcommittee which
consisted of l5 senators. I was one of those senators, and l,
again, was very active, particularly on a subcommittee of the
subcommittee which considered the whole question of Senate
reform and was responsible for most of what appeared in Part
ll of the report which was euphemistically titlcd, “Toward a
Renewed Senate.“
Q (I650)
At this point I would like to interject that while there has
been no reform of the Senate since I have been here, I am of
the opinion that the quality of the work of the Senate has been
improved because the quality of the members of this house has
improved. The opposition has been enormously strengthened
by the very high calibre of the appointments to it by both Mr.
Trudeau and Mr. Clark, and that, taken with the generally
high calibre of the appointments to this side of the house, has
resulted in a noticeably higher percentage of senators who are
doing an outstanding or reasonably competent job.
The subcommittee settled on the main thrust of its report in
August 1980, and its recommendations ‘were approved in
principle by the Standing Senate Committee on Legal and
Constitutional Affairs on September 3, 1980, which was
before the Meeting of First Ministers. These recommendations
were then unofficially communicated to, at least, the federal
government so that they would be known before that meeting.
In order to remind honourable senators of what the recom-
mendation of that Senate committee was on the subject of the
present absolute veto power of the Senate, I am going to read
that part of the committee report dealing with the subject:
At present the Senate has the legal power and right to
reject any bill whatever, and as often as it sees fit. As
already noted, it has not exercised that power for many
years. lts members have been fully conscious of the fact
that any such action would provoke a storm of protest
against “frustration of the people’s will” as expressed by
the elected House of Commons.
It is conceivable that if the Senate were faced with
legislation that in its view would seriously undermine
national unity, or that had aroused strong opposition in
one or more of the regions (especially if the bill were
brought forward toward the end of a Parliament, and
embodied a policy that had never been before the people
at a general election) it might decline to pass it until it
had been endorsed in a general election. (The Senate did
this with the Naval Aid Bill of 1913.)
We do not believe that in a democratic society an
appointed second chamber should have these powers. It is
important, however, to make sure that any highly con-
troversial bill passed by the House of Commons really
docs represent the will of the people, or, at the very least,
the considered judgment of the people’s representatives,
In such cases the House of Commons should at least be
forced to think again.
We feel that for this purpose the present absolute veto
power is not necessary; indeed, the very fact of its abso-
luteness makes the Senate reluctant to reject any bill,
however bad, even temporarily. We believe that a six
months’ suspcnsive veto would give the Senate all the
power it needs. The government, the House of Commons
and the country would be compelled to think again. The
Senate would have enough time to put its case squarely
before the public. lf, when the six months were up, the
government and the House of Commons were so con-
vinced of public support for the bill that they insisted on
re-passing it in the House of Commons, then the Senate
would have done its duty and could acquiesce with a clear
conscience. It would be essential, of course, that the bill
be re-introduced in the House of Commons and re-passed
there. A mere lapse of six months, after which the bill
would come into effect without any reconsideration by the
Commons, would destroy the whole purpose of the sus-
pensive veto.
In making this recommendation, the committee was follow-
ing the recommendation of the Special Joint Committee on the
Constitution of Canada, which was chaired by Senator Molgat
and the Honourable Mark MacGuigan, M.P. After two years
of intensive study, they recommended in 1972, “that the
present veto power of the Senate be reduced to a suspensive
veto for a period of six months,“ There was no suggestion in
that report that an exception be made for constitutional

2006 SEN ATE
DEBATES March ll, I981
Might I point out that the Senate committee report was not
finally adopted by the committee until a meeting held on
October 30, 1980? At that meeting, without any prior notice
to the committee as a whole that changes were going to be
proposed, two recommendations for reforming the Senate were
deleted from the draft approved in principle in September. Yet
no suggestion was made to change that part of the report
dealing with the powers of the Senate in light of the resolution
on the Constitution which had been introduced weeks earlier.
It is true that the report only deals with legislative powers,
and specifically refers to bills. However, the first draft of the
report prepared by the distinguished consultant to the commit-
tee did provide for our consideration that the suspensive veto
should only apply to ordinary legislation, “as distinct from
constitutional amendments and perhaps other constitutional
legislation.” These words were deleted from the report by the
subcommittee of the subcommittee, and I cannot recall anyone
ever suggesting that they be re-inserted during the ensuing
process of approval by the full subcommittee and the full
committee. Surely, the reason given for substituting a six
months’ suspensive veto for the present absolute veto of the
Senate with respect to bills would apply even more forcefully
with respect to a proposed constitutional change which must
be approved not only by an elected House of Commons but
also by a majority of the provincial legislatures as provided for
in an amending formula.
I have previously made my position clear to many of my
fellow senators that as far as I am concerned, clause 44 was
reasonable except that the 90-day suspensive veto provided for
should be extended to six months, in line with the suspensive
veto recommendation in the report of the Standing Senate
Committee on Legal and Constitutional Affairs, and the
Report of the Special Joint Committee of the Senate and the
House of Commons on the Constitution of Canada of I972.
For that reason, I emphatically disagree with the govern-
ment dropping clause 44 under pressure from certain senators
who claimed that enough Liberal senators would vote against
the resolution to defeat it if that part dealing with abolishing
the Senate’s absolute veto with respect to a constitutional
amendment changing or abolishing the Senate was not
One of my other objections to the way the government is
proceeding is that they want the Parliament of the United
Kingdom to deal with the Joint Address before the Supreme
Court of Canada decides whether or not it is legal to do so.
Let me make my opinion perfectly clear on this point. While
I had not previously studied the question in depth, I could
never understand how a constitutional convention could be
turned into a legally binding law on the say-so of several law
professors, of whom Professor W. R. Lederman is the leading
exponent, when there is absolutely no decision of any com-
petent court to support that proposition. Many eminent law
professors and writers on constitutional law, including the
great A. V. Dicey, have clearly distinguished between a consti-
tutional law which the courts will enforce. To quote Dicey:
[Senator Godfrey]
The other set of rules consisting of conventions, under-
standings, habits, or practices which, though they may
regulate the conduct of the several members of the sover-
eign power, of the Ministry, or of other officials, are not
in reality laws at all since they are not enforced by the
courts. This portion of constitutional law may, for the
sake of distinction, he termed the “conventions of the
constitution,“ or constitutional morality.
Mr. Justice Hall, of the Manitoba Court of Appeal, also
quotes various other authorities to support this proposition. I
will refer to only four of them.
Colin R. Munro, in his I975 Law Quarterly Review article
“Laws and Conventions Distinguished,” states:
The validity of conventions cannot be the subject of
proceeding in court of law. Reparation for breach of such
rules will not be affected by any legal sanction. There are
no cases which contradict these propositions. In fact, the
idca of a court enforcing a mere convention is so strange
that the question hardly arises.
Peter Hogg, in his 1977 book Constitutional Law of Canada
Conventions are rules of the constitution which are not
enforced by the law courts. Because they are not enforced
by law courts, they are best regarded as non-legal rules-—
Senator Flynn: Peter Hogg also said that Parliament could
abolish the Senate without the consent of the provinces.
Senator Godfrey: I am not aware of that.
In the Reference re Disallowance and Reservation of Pro—
vincial Legislation (1938) S.C.R. 71, Chief Justice Duff, of
the Supreme Court of Canada, generally considered one of
Canada’s greatest judges. stated:
We are not concerned with constitutional usage. We are
concerned with questions of law which, we repeat, must
be determined by reference to the enactments of the
British North America Acts of I867 to 1930, the Statute
of Westminster, and, it might be, to relevant statutes of
the Parliament of Canada ifthere were any.
Finally, in a decision of the Supreme Court of Newfound-
land in 1948, before it joined Canada, Mr. Justice Winter said:
To these conventions ‘the adjective constitutional is
applied; any action violating them is termed unconstitu-
tional . .. Not merely has a court of law no power to
redress directly a violation of a genuinely constitutional
role, but it is, I should think, the last place in which
redress should be sought.
I rather like Mr. Justice Hall’s statement in his judgment
“It is not appropriate to the exercise of the judicial
function to find a political orange and turn it into a
judicial apple”
And he concludes by saying that “the conventions of the
Constitution are not for judges.”

March ll, I981 SENATE
Q (I700)
Chief Justice Freedman, in his judgment, came to the
conclusion that there was no constitutional convention, so that
he did not have to decide specifically whether a constitutional
convention, if it existed, could become a rule of law. However,
he docs quote some of the same authorities referred to by Mr.
Justice Hall, which I have already quoted.
Chief Justice Freedman does refer to the compact theory of
Confederation and states:
In my view the theory in question is supported neither by
history nor by subsequent usage.
Honourable senators will recall that I began this speech by
quoting the opening sentence of the judgment of Mr. Justice
O’Sullivan with approval. He wrote the main dissenting judg-
ment. He quoted extensively from the judgments in the New-
foundland case referred to in the judgment of Mr. Justice
Hall, and quotes also from a judgment of the Privy Council to
the same effect.
However, even in the face of all this, he has no difficulty in
deciding that although:
-~-the constitutional convention referred to has not been
established as a matter simply of precedent, it is, however,
a constitutional principle binding in law.
Evidently, because he thinks it should be.
As a lawyer, I found his reasons unconvincing and not
supported by any relevant legal authority. Judges must decide
what the existing law is. They should leave to the politicians,
legal practitioners and law professors the job of saying what
they think the law should be on a matter as politically con-
troversial as this.
As to Mr. Justice Huband’s dissentingjudgment, I can only
say that he does not even attempt to quote a single legal
authority to support his views. As a lawyer, I found his
reasoning irrelevant and unconvincing. If I were a political
science student at a university I would have found his theory-
and I cannot place it any higher than that—as to what
constitutional practice should be, rather interesting, if novel.
As I said earlier, one of the matters that I very definitely
disagree with is the apparent eagerness of the federal govern-
ment to press the U.K. Parliament to deal with this resolution
before the Supreme Court of Canada has a chance to adjudi-
cate as to whether or not it is legal.
While I strongly agree with the government that it is legal,
and I am of the opinion that the Supreme Court of Canada
will so decide, I am sure that honourable senators will not be
surprised when I confess that there has been the occasion-
vcry rare, of course-—when a court has decided a legal ques-
tion contrary to an opinion that I gave when I was practising
Senator Flynn: I don‘t doubt.
Senator Godfrey: So there is always the possibility that they
may do so this time.
In view of the action taken by six provinces challenging the
legality of the process being followed, I am of the opinion that
there is no urgency demonstrated that would justify the
amendments being enacted by the U.K. Parliament until the
legality of the process has been determined by our Supreme
Court. Because of the split decision in the Manitoba Court of
Appeal, there is bound to be speculation in the U.K. Parlia-
ment as to whether this process is legal, and that may well
influence the vote of individual members.
It seems to me that it is common sense and tactically sound
to get that question out of the way before the U.K. Parliament
votes on the matter. If I were a member of the U.K. Parlia-
ment, I would certainly insist that consideration of the bill be
postponed until after the decision of the Supreme Court, and I
am of the opinion that the federal government should do
everything it can to expedite the determination of the matter
by the Supreme Court before the resolution is sent to the
United Kingdom.
I would now like to discuss the report of the Foreign Affairs
Committee of the British House of Commons, chaired by Sir
Anthony Kersltaw. I must say that my initial reaction to this
committee, even considering what the Westminster Parliament
should do with a joint address before it was actually received,
was very adverse, My opinion did not change when I read the
summaries in the press of their conclusions.
However, my ears prickcd up a bit when I was told that Mr.
Gordon Robertson, the former Clerk of the Privy Council and
for some years the Prime Minister‘s principal adviser on
federal-provincial relations, had read the report and thought it
was both serious and scholarly.
I then obtained a copy of the document and read it careful-
ly, and may I say that I completely agree with Mr. Robertson?
It is well written, meticulously researched, and its conclusions,
generally speaking, are very logical, even if one does not
necessarily agree with all of them or that the U.K. Parliament
should follow them. I must say that I was somewhat surprised
to hear Senator Lamontagne refer to this report in his speech
as “biased and inconsistent.”
There is some very interesting and relevant constitutional
history, not generally known, revealed in this report. In several
instances it gave me a new slant on what had happened in the
past, and I would like to refer brie?y to some of them.
Honourable senators are now aware from other speeches
that in I907, in respect of a resolution of the Canadian
Parliament for an amendment to the B.N.A. Act with respect
to the payment of subsidies from the federal to the provincial
governments, the Legislature of British Columbia had passed a
resolution protesting against the settlement and also its being
regarded as final and irrevocable, and laid a petition before
His Majesty to that effect.
In introducing the B.N.A. Bill, I907, the Under-Secretary
of State for the Colonies, Mr. Winston Churchill, as he then
was, stated:
He did not pretend to go into the merits of the difference
on a constitutional question before the British Columbia
and the Federal Government. We on this side did not
know enough to decide upon the merits of the claim. On

2008 SENATE DEBATES March ll, l98l
the other hand, he would be very sorry if it were thought
that the action which His Majesty’s Government had
decided to take meant that they had decided to establish
as a precedent that whenever there was a difference on a
constitutional question before the Federal Government
and one of the provinces, the Imperial Government would
always be prepared to accept the Federal point of view as
against the provincial. In deference to the representations
of British Columbia the words “final and unalterable”
applying to the revised scale had been omitted from the
In light of this quotation, it really is extraordinary that Mr.
Serge Joya] maintained, in his speech in the House of Com-
mons, that London removed these words solely because, in the
opinion of Mr. Churchill, they seemed totally inappropriate in
the legislation. There was no mention by Mr. Joyal of the
opposition of British Columbia which, according to Mr.
Churchill, had considerable in?uence.
I find equally extraordinary the statement by Senator
Lamontagne, in his speech, to the same effect, and his further
statement that:
British Columbia opposed the Canadian request on the
ground that the proposed increase in subsidies was not
high enough.
While that is true, as far as it goes, Senator Lamontagne
carefully refrains from pointing out that Mr. Churchill said, in
the spccch quoted above, that the provincial legislature:
—~passed a resolution protesting against the settlement
being regarded as final and irrevocable. They also laid
before His Majesty a petition asking that, in any legisla-
tion to give effect to the Ottawa resolutions (ofa Federal-
Provincial Conference of 1906), the arrangement should
not be taken as ofa final and irrevocable character.
In commenting on this statement of Mr. Churchill, the
Kershaw committee’s report stated:
Here we record it simply as evidence ofa recognition that
the federal character of Canada‘s constitution might
affect the responsibility and the actions of the U.K,
authorities in relation to that constitution.
Thus we do have an instance of the U.K. Parliament, at the
request of a provincial legislature, altering an amendment to
the B.N.A. Act proposed by the Canadian Parliament,
although they may have also thought it only an improvement
in drafting in accordance with general legislative practice.
Subsequently, in connection with this amendment, Lord
Elgin, Secretary of State for the Colonies, wrote to the
Premier of British Columbia that he:
~—fully appreciates the force of the opinion expressed that
the British North America Act was the result of terms of
union agreed upon by the contracting provinces and that
its terms cannot be altered merely at the wish of the
Dominion Government.
But that he feels, however:
[Senator Godfrey.)
–»-that in view of the unanimity of the Dominion Parlia-
ment and of all the Provincial Governments save that of
British Columbia, he would not in the interests of Canada
be justified in any effort to override the decision of the
Dominion Parliament.
Senator Lamontagnet Would the honourable senator go on
with the quote?
Senator Godfrey: I do not have it. I believe I have included
Senator Larnontagne: Except the substance.
Senator Flynn: You knew about that yourself.
Senator Godfrey: In I943 the federal Parliament proposed
an amendment for the postponement of redistribution of seats
in the Canadian House of Commons until after the war.
When the bill was being considered in the British House of
Commons, Clement Attlee, the British Secretary of State for
Dominion Affairs, stated:
I have no information as to any province objecting, but, in
any case, the matter is before us by an address voted by
both Houses of Parliament and it is difficult for us to look
behind the fact.
In fact, while the amendment involved no question of the
powers or rights of the provincial legislatures or governments,
there was opposition to the amendment by Premier Godbout, a
Liberal Premier of the Province of Quebec and the Quebec
Q (l7l0)
While it is somewhat lengthy, I believe I should read into
the record that part of the Kershaw report dealing with this
The existence of opposition by a Provincial government
and legislature was not conveyed to the UK Government
until after the BNA Bill 1943 had received the Royal
Assent. The Canadian request had not been conveyed to
the UK Government until l7 July 1943; it was accom-
panied by a request that the legislative processes in West-
minster be completed before 24 July. It was introduced
and passed in the House of Lords on 2I July. On the
morning of that day, the Dominions Office received from
the UK High Commissioner in Canada a telegram
“Mr. St-Laurent, the Minister of Justice, told me the
following informally today. Some citizens in Ottawa
and elsewhere are preparing representations which they
wish to make against the passage through Parliament
at Westminster of the Bill amending the British North
America Act. Mr. St-Laurent . . . remarked that it will
be convenient if the representations referred to above
arrived after the Bill had already become law . . .”.
70. The Bill was passed in the House of Commons on
22 July and received the Royal Assent. On 23 July, the
UK Government heard for the first time that the opposi-
tion from “some citizens in Ottawa and elsewhere” was in
fact the opposition of the Premier of Quebec with the

March ll, 1981 SENATE DEBATES 2009
unanimous approval of the members of the Quebec legis-
lature. A Dominions Office internal minute, dated 23 July
1943, states that the relevant telegram from a Canadian
MP “very fortunately reached us after the Bill had passed
both Houses , . . We had not heard previously of the
[Quebec Government’s opposition]”. The minute contin-
“it is doubtful whether any reply to the telegram is
desirable. It is not proper that an individual Canadian
MP should communicate direct with the United King-
dom Government in a matter of this kind. The position
might be different if the Premier or Government of
Quebec had addressed us on the subject though, even in
that case, it should be noted that the established princi-
ple is that the United Kingdom Government have no
direct dealings with Canadian Provincial Governments
and communicate with them only through the Canadi-
an Government… As was mentioned in the debate
yesterday, it is anomalous that the United Kingdom
Parliament should be called upon to deal with such
questions, seeing that these must imply some measure
of responsibility on the part of Parliament here in what
is purely a Canadian matter . .
71. Accordingly, on 22 September 1943, the UK High
Commissioner in Canada sent to the Canadian Under-
Secretary of State for External Affairs an “informal
note“ expressing the UK Government’s disquiet at the
events of July. The main paragraph of the note is as
“Generally, it seems unreasonable that at this stage of
constitutional development the United Kingdom Parlia-
ment should afford the sole means of amending the
Canadian Constitution, since it is clear that it cannot
effectively discuss the merits of the case. The sugges-
tion has been made that the United Kingdom authori-
ties should represent to the Canadian Government that
the procedure adopted on this occasion was derogatory
to the United Kingdom Parliament and might indeed
be the cause of serious friction in the future. But the
position is that express provision to maintain the exist-
ing practice in this respect was made in the Statute of
Westminster in a special clause, the form of which was
drawn by Canadian authorities as the result of a formal
conference between the Federal and Provincial Govern-
ments. Accordingly, the United Kingdom do not wish
to make anything like a formal approach on the subject
as to the unsuitability of the present position. At the
same time they hope that the Canadian authorities will
realize that inappropriareness and possible risks
involved“ [sic] “in the present position. They take the
view that the present practice has become increasingly
anomalous and likely to lead to friction and they feel
that, at any rate as soon as the war is over, the
Canadian authorities may wish to find some method of
amending the Canadian Constitution by action taken in
It is really quite extraordinary that a man like Mr. St~Lau-
renl, in referring to opposition to the amendment as coming
from “seine citizens in Ottawa and elsewhere”, obviously felt
it advisable to apparently be somewhat less than frank with
the U.K. High Commissioner in order to conceal the fact that
the Quebec government and legislature were opposed, so that
the U.K. Parliament would rush the amendment through in
two days and they wouldn’t know about the Quebec opposition
until too late. This would indicate to me that Mr. St-Laurent
was worried that the U.K. Parliament might pay some atten-
tion to opposition from a province if they knew about it. It also
certainly shows that, even back in 1943, the U.K. Government
was worried that they might find themselves in the position
they are in today, and wanted to avoid it.
The Kershaw report stated at page xxxvi, that:
“Both Mr. E. Lapointe, who as (Liberal) Minister of
Justice attended the Conferences of 1926 and 1929, and
Mr. H. Guthrie, who as (Conservative) Minister of Jus-
tice attended the Conferences of 1930 and 1931, stated in
the Canadian House of Commons (in 1931 and 1935
respectively) that the UK Parliament could, and probably
would, reject a Canadian request affecting Provincial
rights if made without Provincial concurrence.”
Honourable senators, that is not what Mr. Lapointe said.
The Kershaw report has glossed over a critical distinction.
According to the footnote at the bottom of the page, Mr.
Lapointe actually said:
“—the Imperial Parliament is not really a dominating
power; it acts as trustee and as a guarantor, and merely
gives effect to the will of the Canadian people. . . I think
that amendments to the constitution could be divided into
two classes; first those which would affect the provinces,
which would add powers to lhefederal parliament and in
that way affect provincial rights. In such cases surely the
British Parliament, even under the situation as it exists
to-day, would not agree to pass a law to effect the
change . . . on the question of the respective jurisdiction of
the Dominion and the provinces, there is no doubt that
this could not be changed by either without agreement
with the other.”
As far as I am concerned, the most important and relevant
words are, “which would add powers to the federal parlia-
ment“. Mr. St-Laurent made the same point in 1943 when he
was Minister of Justice, and said:
“to change the allocation of legislative or administrative
jurisdiction as between the provinces, on the one hand,
and the Federal Parliament on the other, it could not
probably be done without the consent of the organism
that was set up by the constitution to have powers that
would assuredly be taken from that organism.”
Mr. St-Laurent then specifically referred to the B.l\’.A. Act,
1940, where unemployment insurance was transferred from
provincial to federal jurisdiction.
In the quotation of Mr. Trudeau‘s mentioned by Senator
Thompson, Mr. Trudeau refers to the practice of the federal

DEBATES March ll, i981
government seeking the unanimous consent of the provinces
“before seeking amendments that have affected the distribu-
tion of powers.”
I personally think that this makes all the difference in the
world as to how the amending process should be handled. This
resolution does not propose to add to the powers of the federal
Parliament any powers taken from the provinces that they
presently have under the B.N.A. Act. The federal government
has very carefully stayed very clear of any question of division
of powers. Those will only be handled under the amending
formula and in Canada. In view of the fact that the federal
government has a power of disallowance over provincial legis-
lation, which it can use if provincial legislation did offend
fundamental rights of the kind contained in a bill of rights,
then provincial legislatures can be curbed even now in this
area by the federal government, even though the power of
disallowance has fallen into disuse. In fact, it has not been
used since i943, but it was used 112 times before that.
Q (1720)
In Bill C-60 the federal government offered to give up the
power of disallowance with respect to those provinces that
agreed to the entrenchment of a Charter of Rights. The
limitation on the powers of the provincial legislatures imposed
by a judicially interpreted Charter of Rights surely affects
their powers less than the discretionary power of the federal
government to interfere at will by disallowance. I might also
interjeet at this point that the powers of disallowance and
reservation contained in the B.N.A, Act, together with the
declaratory power, emergency power and the spending power
of the federal government, really negates the sovereignty
theory that some people and some judges claim, without
proper qualification, that the provincial legislatures possess.
It was as the result of a unanimous request of all the
provinces, as well as the federal government, that section 7(l)
of the Statute of Westminster was enacted which left the
amending power in the hands of the U.K. government. No
attempt was made to define the principle upon which the U.K.
Parliament would act. It was because no agreement could be
reached upon an amending formula by the provincial and
federal governments that there was no such definition. If it had
been possible to agree upon what circumstances the U.K.
Parliament would act, then that would have been the equiva-
lent of an agreement upon an amending formula and the
Constitution could have been patriated. Surely, by no stretch
of the imagination could the provinces have thought that in all
cases, such as a drastic revision of the division of powers
between the federal and provincial parliaments in the federal
governmeut’s favour, the U.K. Parliament would automatical-
ly rubber-stamp the request of the federal Parliament. The
provinces did regard the U.K. Parliament as some form of
protection, and that is why they agreed to leave the power
there, as they had no intention of agreeing to permit the
federal Parliament to amend it at its will.
Honourable senators, I agree with the Kershaw Committee
in its conclusion:
[Senator Godfrey]
It would not be in accord with the established constitu-
tional position for the U.K. Government and Parliament
to accept unconditionally the constitutional propriety of
every request coming from the Canadian Parliament.
What I do not completely agree with is the Kershaw Com-
mittce’s conclusion that:
—the U.K. Parliaments fundamental role in these mat-
ters is to decide whether or not a request conveys the
clearly expressed wishes of Canada as a whole bearing in
mind the federal character of the Canadian constitutional
They have, in my opinion, such a role only when the federal
Parliament is trying to take away significant powers from the
provinces to add them to its own powers.
In the body of its report, the Kershaw Committee over-
looked the critical distinction drawn by Mr. Lapointe when he
said that it was with respect to amendments “which would add
powers to the federal parliament and in that way affect
provincial rights” that “surely the British Parliament even
under the situation as it exists to-day, would not agree to pass
a law to effect the change.”
This is not the situation with respect to the amendments to
the B.N.A. Act we are considering today. The government has
been very careful not to increase the powers of the federal
Parliament with respect to the powers given to the provinces
under section 92 or other sections of the B.N.A. Act. It is
obvious to me that the government does not think it would be
proper to do so, except in compliance with some amending
formula then in place, unless it had the substantial concur-
rence of the provincial governments or their people as deter-
mined by a referendum.
To digress for a moment, I cannot see what all the objec-
tions are to the use of referenda in the constitutional amending
process. Experience in Australia, where the only way their
constitution can be amended is by way of a referendum
provided for in a bill passed by the federal Parliament, is that
since 1901 there have been some 28 referenda held, represent-
ing some 50 proposed constitutional amendments. On only six
of these refcrenda have the requested majorities been obtained,
thus enacting a mere ninc out of 50 proposed amendments into
law, each a relatively simple proposal not bringing about any
fundamental change in the division of powers.
incidentally, the federal government in Australia completely
controls the conduct of referenda. Switzerland also uses refe-
rcnda to approve amendments to its constitution. The Swiss
vote down most constitutional amendments, particularly if
they propose to broaden the jurisdiction of the federal govern-
ment. The federal penal code took 24 years of referenda before
it was finally approved.
While I do not believe, judging by the Australian and Swiss
experience, that referenda ordinarily will serve any useful
purpose, there is always the possibility that they might, and for
this reason I approve of the present proposals.
I was somewhat surprised at one of the arguments given by
Senator Thompson in opposing referenda, that is, “the inabili-

March ll, 1981 SENATE
ty of ordinary citizens to have the time to study complex
issues.” That is the kind of argument I would expect from a
right-wing elitist who does not really believe in democracy, and
Senator Thompson is certainly not one of those.
I think that this is the appropriate point at which to say that
this process by which we are acquiring a Charter of Rights
binding upon the provinces does worry me. Some honourable
senators may recall that on January 29, 1979 I gave a speech
in this house on the question of whether a Bill of Rights should
be entrenched in the Constitution. I will not repeat what I said
then, except to summarize my conclusions, which were, inci-
dentally, influenced by the evidence of the Honourable J. C.
McRuer, former Chief Justice of the Supreme Court of
Ontario, and Professor Walter Tarnopolsky, the president of
the Civil Rights Association of Canada, given before the
Special Committee of the Senate on the Constitution.
My opinion, then—–which I have amplified somewhat
sincc—was that while we should have a Charter of Rights in
the Constitution, binding on the federal and provincial parlia-
ments, it need only be semi-entrenched as far as the provinces
are concerned, in view of the opposition of a majority of the
provincial parliaments. If it was in the Constitution, it would
clearly have an overriding effect on all other legislation which
was desirable. I would not allow the provinces to amend it, but
I would allow them to override it with respect to specific
legislation where it was clearly desirable to do so because the
Supreme Court of Canada had gone off the rails in one of its
decisions with respect to that legislation and public opinion
clearly thought so and approved of a correction of this
I would have given the power to the provincial governments
to correct the way the Supreme Court of Canada interpreted
the Charter of Rights with respect to specific legislation by
being able to rc-pass that legislation with a “notwithstanding”
clause in it; that is, the legislation would have effect notwith-
standing the Charter of Rights or, more particularly, notwith-
standing the way the Supreme Court of Canada interpreted it.
However, I would not have given them such power with
respect to language rights because the provinces have all
previously agreed to that.
I thought, and still think, my suggestion, which I modestly
refer to as the “Godfrey formula”, is a reasonable compromise
that would have met the fundamental objections of some of the
premiers to an entrenched Charter of Rights; namely, that the
legislatures and not the courts should be, in the last resort,
responsible for protecting our liberties. Premier Blakeney, in
his brief to the special joint committee, said:
With the entrenchment many of thc most important and
sensitive public policy decisions are delegated irretriev-
ably to the courts. Courts, of course, are partially respon-
siblc now for administering federal and provincial human
rights codes, but their decisions are not beyond popular
review through legislative action.
In view of the overwhelming support of the public for the
concept of fundamental freedoms, the provincial legislatures
would be very cautious indeed about using a “notwithstand-
ing” clause. The present federal Bill of Rights, for which Mr.
Diefenbaker was responsible, also had a “notwithstanding”
clause in it which has only been used once, and then in 1970 in
connection with the Public Order (Temporary Measures) Act
which replaced the War Measures Act. I understand that the
present Alberta Bill of Rights has a “notwithstanding” clause
that has never been used. I would also allow each province to
opt in to entrenchmcnt of the Charter of Rights, which they
might well do eventually, particularly after they have had
some experience with it and how the Supreme Court of
Canada interprets it.
I want to say to Senator Thompson that I have done just as
much worrying as to how I should vote as he has, and for just
as long as he. I did not really definitely make up my mind until
after I had done all the research necessary for the preparation
of this speech. I do not recognize, and never have, any obliga-
tion on any Libcral senator to follow any so-called Liberal
On that subject, I would like to quote Senator Dandurand,
when he became government leader in the Senate in 1922, and
I remind honourable senators that he remained Liberal leader
in the Senate for 20 years:
I shun party discipline and the party whip. I invite
criticism of the measures of the government, criticism
from the right as well as from the left; I feel it is the
responsibility of each senator to try to improve the legisla-
tion that comes before us.
I might say that in my more than seven years in this
chamber, neither the leader of my party in the Senate nor the
whip has ever attempted on any individual basis to influence
my vote. That does not mean, of course, that we do not
collectively get exhortations in the Senate Liberal caucus from
the government leader in the Senate, from time to time, to
follow the party line, and I am comfortable in doing so in most
cases because, of course, it is in those cases right.
Q (I730)
As between no Charter of Rights in the Constitution and no
patriation with an amending formula and an entrenched
Charter of Rights together with patriation of the B.N.A. Act
with an amending formula, I have finally come to the conclu-
sion, in spite of my strong reservations about the process, that
patriating the Constitution is all important, is long overdue,
and should be done now, even though it includes a Charter of
Rights which is completely entrenched, which I do not really
think is necessary at this time.
Let us get this first step over with, so that we can get on
with amending the Constitution at home with respect to other
important matters, such as the division of powers. I am,
therefore, going to hold my nose and vote for this resolution.
On motion of Senator Macdonald, for Senator Nurgitz,
debate adjourned.

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