Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Debate Continued” (17 March 1981)

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Date: 1981-03-17
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2068-2077.
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DEBATES March 17, 1981

The Senate resumed from Thursday, March l2, the debate
on the motion of Senator Perrault that an Address be present-
ed to Her Majesty the Queen respecting the Constitution of
Hon. George J. Mcllraith: Honourable senators, at long last
we have before us for consideration the motion for an Address
to Her Majesty the Queen asking that there be placed before
the Parliament of the United Kingdom an act to amend the
[Senator Balfour.)
Constitution of Canada. This proposed legislation is set out in
detail in the Address which we are being asked to approve.
When the proposals were first put forward by the Prime
Minister on October 2 last year, they were not presented to
Parliament as is the usual practice and, indeed, the resolution
containing the proposed message was not placed before either
the Senate or the House of Commons, but was merely tabled.
A simple motion to establish a special joint committee to study
the document, which was not before Parliament, was moved in
each house. In due course, the committee was set up and it, on
the completion of its work, tabled its report, but did not
present it to either house as was required by the motion
creating it.
However, on February l3, l98l, the resolution before us
appeared on the order paper. It is substantially the original
resolution as amended by the joint committee of the two
houses, subject, of course, to a very slight technical change. I
welcome the fact that the matter has finally come before us for
consideration. As honourable senators know, last autumn I
objected to the manner in which Parliament was by-passed,
and indeed, to the whole procedure as then envisaged.
I have nothing further to say now with respect to the
procedure, other than to express the hope that no Canadian
government will ever again follow such a course of action. I
welcome the government’s change of heart in bringing the
proposed Address before Parliament rather than merely rely-
ing on a motion for concurrence in a committee report and
representing that as being an Address.
I would like at this point to express my respect for the work
done by the members of the joint committee, those appointed
by both this house and the other place. I recognize that they
had to do their work under severe time constraints, without
having had the benefit of a decision of the two houses as to the
principles contained in the legislation, which would have been
done at the second reading stage had this legislation been
enacted by our own Parliament. I recognize also that they did
not have the benefit of independent committee counsel and
experts to assist them, but had to rely for assistance on the
public service proponents of the bill, the research facilities of
the Library of Parliament, albeit rather good facilities, and the
Parliamentary Centre for Foreign Affairs and Foreign Trade.
None of this assistance was under their own control and
direction. Yet, notwithstanding these difficulties, they patient-
ly heard representations from many different segments of the
community. They made many amendments which improved
the resolution greatly. I, for one, appreciate their efforts.
As I have attempted to follow the debate and, indeed,
reports in the media about it, I fear there is much confusion in
the public mind as to what Parliament is being asked to do»~
perhaps l should say there is a lack of information as to what
we are being asked to approve. I, therefore, would like to take
a moment to look at the resolution itself and try to indicate
what l see as its substance.
Before doing so, it is perhaps well for us to remind ourselves
that the British North America Act, passed in 1867, created a

March _i 7, l98l SENATE
federal system for the government of Canada, giving sovereign
and exclusive jurisdiction to each province over a number of
regional and local matters as set out in section 92, ln addition,
and notably in section 93, it gave the provinces rights in some
other areas. It is to be noted that subsection (1) of section 92
gave the provinces exclusive power to make laws in relation to:
The Amendment from time to time, notwithstanding any-
thing in this Act, of the Constitution of the Province,
except its regards the Office of Lieutenant-Governor.
The federal authority was given power to make laws for the
peace, order and good government of Canada, to make laws in
relation to all matters not coming within classes of subjects
assigned exclusively to the legislatures of the provinces and,
for greater certainty, it was declared that the exclusive legisla-
tive authority of the Parliament of Canada extended to all
matters as set out in section 91 of the act.
Q (|550l
As to the amendment of the British North America Act, the
provinces had the authority to amend the Constitution as l
have indicated. Originally, no such authority to amend the
Constitution in respect of its sphere ofjurisdiction was given to
the federal Parliament. Later, the power to amend the Consti-
tution, in all matters within its exclusive jurisdiction, was given
to the federal Parliament in the I949 amendment to the
British North America Act. I will be making further reference
to that amendment later in my remarks.
It will be secn that the sovereignty of Canada, which resides
in the people of Canada, was set up in a federal system that
provided for its exercise by the people of Canada, through
their elected legislative assemblies in the provinces, in certain
local and regional matters, and its exercise in all other matters
through the Parliament of Canada.
I acknowledge with pride the great efforts of our political
leaders of both parties, who have had the responsibility of
government, in taking the necessary steps towards securing our
total independence. Very little has been said in this debate
about the development of our constitutional practice in this
respect during the first great war and the decade immediately
thereafter. I, for one, shall always feel grateful to Sir Robert
Borden, our Prime Minister during that war, to the Right
Honourable William Lyon Mackenzie King, our Prime Minis-
ter for practically the entire decade after that war, and to the
Right Honourable Ernest Lapointe for their work in extending
and perfecting our independence.
The most significant event in this process, which, in fact.
was only the culmination of the rapid changes in constitutional
practice, was the imperial Conference of 1926, which was
continued in the imperial Conference of 1930. These confer-
ences between the representatives of the governments of the
United Kingdom and the six dominions—namcly, Canada,
Australia, New Zcaland, the Union of South Africa, the Irish
Free State and NeWfoundl2tnd~–adopted certain resolutions,
one of which established the constitutional position that no law
thereafter made by the Parliament of the United Kingdom
could extend to any of the dominions as part of the law of that
dominion. This is subject to a qualification, but l shall deal
with that later. At that point the thrust of these conferences
was to declare that the six dominions were free and independ-
ent, and that each was sovereign in its own right and was in no
way under the control of the Imperial power. They were
splendid conferences.
To give statutory effect to the conclusions of those confer-
enccs, the Statute of Westminster was passed by the United
Kingdom Parliament in l93l. incidentally, approval of that
statute was expressed in the Canadian Parliament through the
procedure of a Joint Address of both Houses of Parliament.
That debate makes for very interesting reading, and l would
commend it to parliamentarians.
When the actual legislation was prepared, it became appar-
ent that while the sovereignty of Canada was divided between
two jurisdictions, the provincial authority and the federal
authority, there was no method ofamending our Constitution.
To meet this problem, which was recognized by all the
authorities concerned with the passage of that legislation and
with the full concurrence of the provincial authorities and of
the federal authorities, provision was made whereby the
United Kingdom retained, for what was then thought to be a
short, temporary period, jurisdiction in relation to amending
the British North America Acts, I867 to 1930, as set out in
section 7 of that act.
So that there will be no danger of my being accused of
misreading that section, I shall put it on the record in its full
terms, It reads as follows:
7. (1) Nothing in this Act shall be deemed to apply to
the repeal, amendment or alteration of the British North
America Acts, i867 to i930, or any order, rule or regula-
tion made thereunder.
(2) The provisions of section two of this Act shall
extend to laws made by any of the Provinces of Canada
and to the powers of the legislatures of such Provinces.
(3) The powers conferred by this Act upon the Parlia-
ment of Canada or upon the legislatures of the Provinces
shall be restricted to the enactment of laws in relation to
matters within the competence of the Parliament of
Canada or of any of the legislatures of the Provinces
Honourable senators will note that the power retained by
the imperial Parliament was not a reservation over our Consti-
tution, but a reservation over amendments to the British North
America Act.-
As I have said, it is to be noted that this reservation in
section 7 relates only “to the repeal, amendment or alteration
ofthe British North America Acts, 1867 to i930“. The United
Kingdom Parliament did not reserve any other rights over our
Constitution, and, indeed, has no jurisdiction whatever in
respect of our Constitution, save and except what may be
derived from this reservation in the Statute of Westminster. It
is to be noted also that that reservation relates only to the
British North America Acts, I867 to l930, and, since it is a

DEBATES March 17, l98l
statute of the United Kingdom Parliament, our Interpretation
Act is not applicable to its interpretation.
When one looks at the Statute of Westminster, one sees that
its whole substance and purpose is the giving up of any
imperial control over the authority of the dominions, and to
confirm in the dominions their complete sovereign indepen-
dence from the Imperial authority. Section 7 must be read in
that context. It is not to be read as if it were an act standing by
itself, as is being done by some of the proponents of the
legislation which is before us.
The next significant development in the perfecting and
making obvious our complete independence was the 1949
amendment to the British North America Act. It transferred
from the United Kingdom Parliament any power under section
7 to amend the Constitution, and gave such power to the
federal Parliament, subject to certain exceptions. Again, so
that there will be absolute clarity as to exactly what this 1949
amendment to the British North America Act implies, I shall
set out its full wording:
91. It shall be lawful for the Queen, by and with the
Advice and Consent of the Senate and House of Com-
mons, to make Laws for the Peace, Order, and good
Government of Canada, in relation to all matters not
coming within the Classes of Subjects by this Act
assigned exclusively to the Legislatures of the Provinces;
and for greater certainty, but not so as to restrict the
generality of the foregoing Terms of this Section, it is
hereby declared that (notwithstanding anything in this
Act) the exclusive Legislative Authority of the Parliament
of Canada extends to all matters coming with the Classes
of Subjects next herein-after enumerated; that is to say,——
l. The amendment from time to time of the Constitu-
tion of Canada, except as regards matters coming within
the classes of subjects by this Act assigned exclusively to
the Legislatures of the Provinces, or as regards rights or
privileges by this of any other Constitutional Act granted
or secured to the Legislature of the Government of a
province, or to any class of persons with respect to schools
or as regards the use of the English or the French
language or as regards the requirements that there shall
be a session of the Parliament of Canada at least once
each year, and that no House of Commons shall continue
for more than five years from the day of the return of the
Writ for choosing the House: provided, however, that a
House of Commons may in time of real or apprehended
war, invasion or insurrection be continued by the Parlia-
ment of Canada if such continuation is not opposed by the
votes of more than one-third of the members of such

It will be seen, then, that all that is left within the jurisdic-
tion of the United Kingdom Parliament, under clause 7 of the
Statute of Westminster, is the small range of matters outside
the exclusive jurisdiction of the provincial legislatures and
outside the exclusivejurisdiction of the federal Parliament, or,
in other words, those coming within the exception set out in
[Senator Mcllraitlh]
section 91(1) of the British North America Act. You will note
that by that section the legislation made it very clear that the
power given to the federal Parliament, unlike that which the
provinces had enjoyed from the first, was to amend their own
Constitution, not just the B.N.A. Act, which is only part of the
The resolution before us is for an Address to Her Majesty
the Queen to cause to be laid before the United Kingdom
Parliament legislation set out in the Address, for enactment by
that Parliament. Of course, it must be limited to the jurisdic-
tion that the United Kingdom retained under the Statute of
Westminster and after passage of the i949 amendment to the
B.N.A. Act. That is the only jurisdiction they have in the
Let us look at the resolution before us. lt starts off with a
draft of a very short act, to be cited as the Canada Act, which
merely provides that schedule B to it shall have the force of
law in Canada henceforth, and that no act of the Parliament of
the United Kingdom passed after schedule B, which is to be
known as the Constitution Act, comes into force shall extend
to Canada as part of its law.
The proposed Constitution Act is then set out in detail in
some 65 clauses.
Part I, bearing the heading “Canadian Charter of Rights
and Freedoms,” is made up of 32 clauses, or half of the
proposed act. Many of the proposed rights and freedoms-
indecd, most of them—are laudable objectives. That is not the
point which concerns me. I am one who, by the way, would
have wished to see a Charter of Rights and Freedoms that
would command the respect of all Canadian people and of all
the legislative bodies that have the responsibility of legislating
in accordance with it. But more of that later.
The charter contains a great conglomeration of rights and
freedoms, some mere transfers of provisions in the Bill of
Rights, some transfers from other parts of the B.N.A. Act,
some wholly new. Of the new guarantees or rights contained in
it, it is interesting to note that some are in an area of
jurisdiction over which the federal government now has exclu-
sive legislative jurisdiction and which could be enacted by the
federal government without the necessity of going to the
United Kingdom. Some~such as the right to use both official
languages in the legislature of New Brunswick—are within the
jurisdiction of the federal Parliament, with the consent of that
province, to have enacted by the Parliament of the United
Kingdom under section 7 of the Statute of Westminster. And
some-—-such as the proposed section 15—clearly are legislation
affecting not only matters within the federal jurisdiction but
also matters which are within the jurisdiction of the provinces;
indeed, matters which may be within the exclusive jurisdiction
of the provinces.
As all honourable senators know, clause l5 deals with the
discrimination provisions. Perhaps it is useful to quote that
clause for the record. It states:
15. (l) Every individual is equal before and under the
law and has the right to the equal protection and equal

March 17,1981 SENATE
benefit of the law without discrimination and, in particu-
lar, without discrimination based on race, national or
ethnic origin, colour, religion, sex, age or mental or
physical disability.
Those are laudable objectives; I do not want anyone to
misunderstand me on that. However, they are being made
binding on the provinces. They would require all of the legisla~
tion now in existence in each of the provinces to be examined
to see if it is, in any way, in violation of that laudable
That is all very well, but we are attempting to do that
without the provinces having any part in the draftsmanship or
in the examination of exactly what that means. I could give
you, perhaps, a hundred examples of legislation that, of neces~
sity, deals with discrimination on the basis of age. There are
many provincial pension schemes which discriminate on the
basis of age, as they must; certain regulations for the licensing
of motor vehicle drivers discriminate; and there are examples
of discrimination in a wide range of acts,
It is true that there is what purports to be a saving clause in
the Charter of Rights and Freedoms, but, again, is the saving
clause to be the only remedy for those provincial legislatures,
without their having been concerned in its preparation or in its
Senator Hicks: Before my honourable friend leaves this
subject, would he permit a question’!
Senator Mcllraith: I would prefer that you put the questions
later. I am quite agreeable to questions; do not misunderstand
To make very clear the extent to which this does trench
upon the area of provincial jurisdiction, I would draw your
attention to clause 3l(l)(b) of the Charter of Rights and
Freedoms, which states that 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.
So much for Part I of the resolution. As I have said, it
consists of half of the clauses of the resolution.
Part II deals with the rights of the aboriginal peoples of
Canada. I am inclined to think that that is within the exclusive
jurisdiction of the federal Parliament, and that it might not
have been necessary to include it in the resolution at all—but
there may be other views on that.
Part III of the proposed act deals with the subject of
equalization and regional disparities. To me, it is rather
unclear as to whether this adds anything to the existing
constitutional practice, so successfully established over the last
few decades. In any event, if it does in any way change the
constitutional practice in the area of equalization payments, it
is clear that the provision seeks to commit the provincial
. (I610)
Part IV of the act provides a mandatory requirement for a
constitutional conference by the Prime Minister and first
ministers of the provinces once each year, something that was
formerly done by mutual arrangement and by a simple
announcement in the I-louse of Commons.
Part V deals with the interim amendment procedure and
rules for its replacement, and is an important part of the
Part VI will come into force with or without amendment two
years after the Constitution Act comes into force. Part VI
deals with the procedure for amending the Constitution of
Canada and will, if not amended in the meantime, be the
permanent amending formula for our Constitution.
Part VII addresses some wholly new provisions having to do
with non~renewable natural resources, forest resources and
electrical energy, and adds to the rights of the provinces
certain additional jurisdictions in this respect.
Part VIII contains some general provisions dealing with the
language versions of the act, the date of its coming into force
and some incidental provisions necessary to complete the
patriation of the Constitution.
It will be noted that only three of the eight parts in the
resolution before us relate to the subject of patriation of our
Constitution or the amending formula. The other five parts
relate to other matters.
It will be seen at once from an examination of the resolution
that the measure before us is not a measure to patriate the
Constitution with an amending formula, but rather is a series
of basic amendments to the Constitution and then, when that
is accomplished, a patriation of the amended Constitution, not
a patriation of the present Constitution as we seem to be led to
believe. In other words, patriation with the necessary amend»
ing formula is not the main thrust of the measure before us. It
is only incidental and tied to drastic changes in our Constitu-
tion of a most basic and fundamental nature, All this is to be
brought about by the two houses of the Parliament of Canada
unilaterally requesting the parliament of another sovereign
power to do it for us, albeit that other power is a very friendly
So far as I can observe, virtually all Canadians want their
Constitution brought back to Canada. They all recognize that
this carries with it the necessity for an amending formula, and
while there is some discussion as to the amending formula
chosen—that is, amendments in the future to be brought about
by the Parliament of Canada together with a combination of
the provinces as set out in the provisions of the resolution-—
there is no real objection. There is some limited suggestion
that the requirements of the combination be changed slightly.
I take second place to no one in Parliament in my desire to
have the Constitution returned to Canada with an amending
formula making it possible for all changes to our Constitution
henceforth to be made in Canada, for Canadians and by
Canadians. None of them will be made in another sovereign
jurisdiction, albeit as I said a few moments ago, a friendly one.
I must, out of fairness, say that the Parliament of the United
Kingdom has several times during my years in Parliament
made it clear that they found it embarrassing to have to

DEBATES March I7, I981
legislate in relation to the Canadian Constitution. On two
occasions-the first when I was a private member of the
House of Commons and the second when I was a minister of
the Crown——the Prime Minister of the day reported directly
the desire of the Parliament of the United Kingdom to be free
of the responsibility reserved to them in the Statute of West-
minster, and their desire that we make provision for our own
amending procedure.
I, for one, am most anxious that the Constitution be patriat-
ed to Canada, and that that be done now. This, obviously,
involves providing an amending formula. The governments
proposal that amendments be made only with the consent of
the provinces for the first two years is an excellent one, Its
proposal for an interim amending formula with the concur-
rence of a combination of the provinces, as set out in the
proposal, is also excellent. There may be some who will argue
about bits and pieces of it. It is, undoubtedly, the closest we
can come to having the approval of the provinces and certain-
ly, as far as I am concerned, the government is well justified in
using it. I believe it is within the proper legislative jurisdiction
of the Parliament of the United Kingdom to enact it, since it is
incidental to removing the last item of control over our sover-
eignty by that Parliament, even though that control is only in
the nature of a limited trusteeship in respect of amending a
limited part of our Constitution.
The proposal contains a new and basic change in our
Constitution by permitting the use of a referendum to bypass
the provinces in certain circumstances. While I do not like the
introduction of the referendum, I am quite prepared to accept
it in the proposed interim amending formula. Perhaps that can
be justified because of what is now popularly called the
deadlock or the failure of the eleven heads of governments to
reach agreement. The special joint committee deserves credit
for the excellent improvements they have made in the provi-
sions relating to it. I regret that they did not make it clear that
it was to be used only in the interim proceedings to break the
present deadlock. I regret that it may, under the proposed
legislation, continue in our permanent amending formula. I
again rcpcat my request to the government, that even at this
late date they proceed with the patriation of the Constitution,
the amending formula and such other items as are properly
within well-established constitutional practice and good parlia-
mentary practiceéfor example, the language provisions per-
taining to the province of New Brunswick and those pertaining
to aboriginal rights.
However, where I part company with the government is in
their attempt to procure basic amendments to the Iong-estab-
lished sovereignty of the legislatures of the provinces in the
spheres ofjurisdiction assigned to them, and to do this without
the concurrence of the legislatures of the provinces, and,
knowing they cannot do it directly, also seeking to have it done
by the United Kingdom. To succeed in this latter effort, they
would return us to colonial status, and then have another
sovereign power pass the necessary legislation. This is totally
offensive to me as a Canadian, as I believe that it will be found
offensive to all Canadians who study the matter. It is not
{Senator Mcllraith]
acceptable to have one sovereign jurisdiction diminish or take
away the powers of another sovereign jurisdiction, nor is it
acceptable to return us to colonial status.
Honourable senators, in the event that it has been missed‘
it has not been mentioned in the debate here-—I would like to
take a minute to show you just what is in clause 55(1) of the
resolution before us, It provides:
Class I of section 91 and class I of section 92 of the
Constitution Act, 1867 (formerly named the British
North America Act, 1867), the British North America
(No. 2) Act, I949, referred to in item 22 of Schedule l to
this Act and Parts IV and V of this Act are repealed.
. (I620)
A few minutes ago, I read at length section 91.1, yet-~-with
our having the power to amend our Constitution, and there is
no better way of our amending the Constitution than by
repealing a clause in one of the acts comprising it-we are
asked to go to the Imperial Parliament, which in I949 had
transferred that sovereign authority to the Canadian Parlia-
ment, and to say, “Repeal that section for us.”
I am a Canadian. I have been proud to be a Canadian. I
have always thought that we were free and independent. Yet
what we are asked to do is quite unnecessary because, while it
is obvious that if the legislation passes the sections to which I
have referred will have to be repealed, it is already within the
power of the Canadian Parliament to do so. However, we are
asking the Parliament of the United Kingdom to do this, even
though it can be done by a simple act of the Canadian
Parliament to come into force if and when the legislation
I have spoken about thejurisdiction of the United Kingdom
Parliament. That is a matter for them to decide; but it is a
matter for us to decide whether or not they have remained
within their jurisdiction, and when, in our courts, we decide
that, it may well be, as the matter now stands, that such
legislation, if we think it is beyond their jurisdiction, renders
those parts of the legislation a mere nullity.
However, I will leave those two points-the point with
respect to one sovereign jurisdiction exercising authority over
another, and the point as to returning us to colonial status.
It may well be that it is beyond the jurisdiction of the
United Kingdom Parliament to enact such provisions without
the concurrence of the provinces, because they divested them-
selves of that authority many years ago.
The constitutional practice that causes the United Kingdom
to enact legislation affecting Canada on the request and
consent of the federal government does not confer on them any
right to repeal or override the provisions for sovereignty which
the Canadian people now have.
It is interesting to note that in all cases of amendments to
the British North America Act involving the provinces direct-
ly, with the exception of the I907 act, the constitutional
practice has been for the federal government to obtain the
consent of the provinces, In the I907 act, when one province
objected, it is interesting to note that the Canadian govern-

March 17, l98l SENATE
DEBATES __gov3
ment of that day sent a message to the United Kingdom
government requesting them to hear the objection of the
premier of the province, and, on his objection having been
made, the federal government consented to a change in the
proposed legislation to meet his wishes~—the striking out a
couple of words only, but very important words.
The leaders of both political parties have approved this
constitutional practice of obtaining provincial approval of
amendments where the amendment related to provincial juris-
diction. Let me quote some of them. For instance, in House of
Commons Debates of January 28, 1907, at column Zl99, the
following quotation will be found from the Right Honourable
Sir Wilfrid Laurier, who was then Prime Minister:
Confederation is a compact, made originally by four
provinces, but adhered to by all the nine provinces who
have entered it, and I submit to the judgment of this
House and to the best consideration of its members, that
this compact not be lightly altered. It should be altered
only for adequate cause and after the provinces them-
selves have had an opportunity to pass judgment on the
Then, omitting a few words:
This House ought to hesitate in passing judgment until it
has before it the views of all the provinces affected.
Let mc quote from House of Commons Debates of February
I8, I925, at page 298. The Honourable Ernest Lapointe, then
Minister of Justice, said:
The British North America Act itself is not only the
charter of the Dominion of Canada; it is just as tnuch the
charter of the provinces of Canada . .. Would it then be
fair for us to arrogate to ourselves the right to change the
act which is just as much the Constitution of the prov-
inces as it is our own’! . ..
Within their sphere the provinces enjoy the powers of
self-government just as much as the Dominion Parliament
does, and if so, surely the Dominion Parliament cannot
take upon itself the right to change a statute which gives
to those provinces the powers which they enjoy–~
I have another quotation. This one is from the precis of
discussions of the Dominion-Provincial Conference of i927, it
is the official precis, number 3, dated November 4, l927, at
page ll. The Honourable Ernest Lapointe said:
—Canada in view of the quality of status which she now
enjoys as declared at the last imperial Conference and in
view further of the cumbersome procedure now required,
should have the power to amend her own Constitution,
and that legislation should be asked for from the United
Kingdom for that purpose. In order that adequate safe~
guards should be provided it was proposed that in the
event of ordinary amendments being contemplated the
provincial legislatures should be consulted and a majority
consent of the provinces obtained, while in the event of
vital and fundamental amendments being sought involv-
ing such questions as provincial rights, the rights of
minorities, or rights generally affecting race, language
and creed, the unanimous consent of the provinces should
be obtained.
I then come to House of Commons Debates of May ll,
1931, page 1474. There was a private motion for Canada
having the right to amend its own Constitution. The Honour-
able Hugh Guthrie, who was then the Minister ofJustice, said:
My contention has always been that in all matters
appertaining to the legislative jurisdiction of the Parlia-
ment of Canada the Parliament of Canada has the right,
and should have the right expressed, to make such amend-
ments to the Constitution as it shall see fit. But, on the
other hand, the rights of the provinces of the country are
just as plenary, just as high as the rights of this Parlia-
ment, Can this Parliament therefore, by amendment or
alteration of any kind, interfere with the rights which are
specially set apart as matters of provincial jurisdiction
and provincial concern, without the consent of the various
provinces of Canada? I submit that we cannot. In
respect of any matters arising under section 92 or section
93 of the British North America Act, this Parliament
cannot, without the consent of the various provincial
legislatures, amend the British North America Act in any
Then again, on May ll, 193], according to House of
Commons Debates at pages 1477 and i478, the Honourable
Ernest Lapointe said:
But those amendments have to be made through the
statute enacted by the Imperial Parliament. In that
matter the Imperial Parliament is not really a dominating
power; it acts as a trustee and guarantor and merely gives
effect to the will of the Canadian people.
Further on, in the same debate, he continued:
I think that the amendments to the Constitution could be
divided into two classes: First those which would affect
the provinces, which would add powers to the federal
Parliament and in that way affect provincial rights. ln
such cases surely the British parliament, even under the
situation as it exists today, would not agree to pass a law
to effect a change. Then the other class would be amend-
ments which would give broader effect to the federal
power within its own jurisdiction. I agree that the prov-
inces under the constitution as it is need not be consulted,
and that was the position taken by various prime ministers
on other occasions. . . but on the question of the respec-
tive jurisdiction of the Dominion and the provinces, there
is no doubt that this could not be changed by either
without agreement with the other–~
Q (I630)
You will note that it was quite clear in his mind that when
dealing with the respective jurisdictions of each of the sover-
eign bodies there needed to be consent.
Again, in the House of Commons Debates of January 28,
i935, at page 222, we have the Honourable Hugh Guthrie

2074 SENATE DEBATES March l7, 1981
Would it be fair to assume that a province which has
been clothed with exclusive authority in certain matters
should now calmly submit to limitation of its powers at
the instance of the Senate and House of Commons?
Would a province agree to any alteration in regard to its
exclusive jurisdiction? I take the view that the provinces
should be and must be consulted in regard to any impor-
tant change in our constitutional act which affects provin-
cial interests. I agree that some constitutional changes are
necessary, but I submit that the only way of bringing
them about is by agreement between the parties to the
original bargain . ..
I think that we would have to have agreement. I do not
think the parliament at Westminster would disregard the
views of the provinces merely at the request of the parlia-
ment of Canada. If the provinces refused to agree upon
any fundamental question which concerned their rights I
doubt very much if the parliament of the United Kingdom
would grant such amendment.
In the House of Commons Debates of 1943, at page 4366,
the Honourable Louis St. Laurent said:
I would readily concede to hon. members that if there
were to be any suggested amendment 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 properly be done
without the consent of the organism that was set up by the
constitution to have powers that would assumedly be
taken from that organism.
Then again, in June 1946, we have Mr. St. Laurent——who,
by the way, was then the Minister of Justice saying
I submit again that the statute apportioned the sover-
eignty to parliament for certain purposes and to the
legislatures for other purposes, and what is assigned to the
legislatures is in no wise under the jurisdiction of this
parliament and cannot be touched without the consent of
those who have jurisdiction over it. But what is within the
powers of this parliament, this parliament can deal with
without requesting the consent, or submitting to the supe-
rintendcnce of any provincial legislature.
Then, in that same debate, a few days later, the Minister of
Fisheries of the day, Mr. Bridges, spoke, and quoted with
complete approval the following statement of the Minister of
Justice, Mr. St. Laurent. Of course, it is Mr. St. Laurcnt’s
words that I am quoting, though, as I say, Mr. Bridges made it
clear that he supported them totally. Mr. St. Laurent said:
The provinces, that is to say, the people of the prov-
inces, are all represented in this parliament, and for thc
purposes of such matters as are confined to the jurisdic-
tion of this parliament it is by those representatives here
that the people of the provinces speak. There are other
matters given by the act to the jurisdiction of the provin-
cial legislatures and the provincial governments; with
respect to any of those it is my view that it would not be
[Senator Mcllraith]
possible to deal with them without the consent of those to
whoscjurisdiction they have been confided.
Then we come to proceedings of the constitutional confer-
ence of federal and provincial governments of January 10,
1950, at page 9. This is the Right Honourable Louis St.
Laurent speaking. By this time he had become Prime Minister
of Canada. He said:
It is, and has always been, the view of the present federal
government that the exclusivejurisdiction of the provinces
which gives a federal character to the constitution of
Canada must be respected.
I should like to repeat again the opinion I have
expressed on many occasions that, regardless of the legal
position, nothing placed by the constitution under the
jurisdiction of the provincial legislature should be dealt
with or altered without provincial participation.
That is the word used on that occasion.
Then we come to 1965 and the remarks of the Right
Honourable Lester B. Pearson, Prime Minister of Canada. In
his introductory remarks to “The Amendment of the Constitu-
tion of Canada”, in February, I965, at page vii, he had this to
In any federation, the two most critical questions are the
distribution of powers between the two levels of govern-
mcnt and the manner in which the constitution can be
changed. A federation is necessarily a delicate balance
between conflicting considerations and interests. It is to
be expected that the most delicate of all questions should
be the way in which such a balance might be altered.
Then, again, we have the Right Honourable Lester B.
Pearson speaking in the House of Commons on January 20,
My right honourable friend also referred to the fact
that we said very little in the Speech from the Throne
about constitutional amendment, and that we seemed to
have dropped the Fulton-Favreau formula. We have not
dropped it, Mr. Speaker. We shall do our best to put it
into effect if and when we get the agreement of all the
provinces, but without that agreement it cannot be done,
These are the views of some of the leaders in parliamentary
life. All of them made the comments I have referred to during
the time I have been observing Parliament, except for the ones
made by Sir Wilfrid Laurier. The rest of them, after Mr.
Guthrie’s, occurred when I was a member of the House of
To me, it is imperative that good constitutional practice be
followed in all cases if the sovereignty which is shared between
the federal authority and the provincial authority is to work in
a way that is satisfactory to Canadians.
I should make this clear now. Canadians who reside in a
province exercise this sovereign authority in two different
ways: in local and provincial matters they exercise it through
their elected members in the legislatures; in the federal field,
in all other matters, they exercise it through the federal

March l7, I981 SENATE
Parliament and through our federal authority. The only limita-
tion on the latter is this anachronistic provision in the Statute
of Westminster covering a very limited field, which I dealt
with a few minutes ago.
As I have said, to have the federal system work in a
satisfactory way, if we arc to respect the two sovereign
authorities, I completely reject—and I must make this clear—
the assertion of some provincial leaders that the governments
of the provinces speak for all the people of the provinces, and
that the federal authority is something that is limited to the
will of these collective sovereignties. That proposition is abhor-
rent and, indeed, I do not think it merits much discussion here.
It is nothing of the sort.
Q (I640)
The federal authority must speak for Canada. We must
have a strong central government, but, by reason of our
history, our geography and our diverse origins, it is necessary
that, in matters of a local and regional nature, the local or
provincial authorities should have sovereign jurisdiction; When
the premiers assert that their governments speak for all the
people in the provinces in all matters, they are wrong. The
federal members of Parliament speak for their provinces in all
matters except those limited ones assigned to the legislatures
of the provinces.
I, for one, have felt that, in the decades since the second
world war, we in both houses of the federal Parliament, have
carelessly or inadvertently neglected to separate and empha-
size the authority of the federally-elected members of Parlia-
ment. We have seen the provincial premiers usurp the role of
the federal members of Parliament by speaking for the prov-
inces in all matters instead of only those matters that lie within
the jurisdiction of the provincial legislatures. This has arisen
innocently enough and in large measure due to the signing of a
great multiplicity of agreements between the provincial gov-
ernments and the federal authority on various joint programs.
I hope that when the resolution before us and matters
arising out of it are resolved, our federal government, whether
it be Liberal or Conservative, will give attention to this point
and make an effort to keep clearly before the public the fact
that the provincial members of the legislatures represent
Canadians only in the class of subjects assigned to the prov-
inces, and that the federally-elected members of Parliament
represent Canadians in all other matters.
Several of the provinces have indicated their opposition to
this resolution by commencing litigation in the courts of their
provinces to question its validity. Appeals from these cases will
undoubtedly come to the Supreme Court of Canada in due
course. This litigation will not be completed and will, presum-
ably, continue before the courts while the legislation before us
is being dealt with. I regret that the federal government had
not made a reference directly to the Supreme Court of Canada
under section 55 of the Supreme Court Act. I notice, for
instance, that the questions raised by the Manitoba govern-
ment in the Manitoba Court of Appeal did not take into
account all the matters affecting the validity of the present
course of action. The jurisdictional question was not raised at
all. I do not propose to pass on all of the litigation before the
courts, but one cannot help but notice the inadequacies of
some of the court references on the part of the provinces.
My objection to the resolution lies in the attempt by the
federal government, without regard for proper and long-estab-
lished constitutional practice, and possibly even illegally, to
bring about far-reaching and extensive changes in our Consti-
tution. Parts of the proposed legislation may well be beyond
the jurisdiction of the United Kingdom Parliament. Even if it
should decide that it has the power to pass the resolution in its
entirety, it is possible that the Canadian courts may find
otherwise, and such parts of the legislation would be a mere
nullity insofar as Canadians are concerned. I do not under-
stand the reluctance of the federal government to refer these
parts of the resolution to the courts for decision.
The difficulty with the provinces’ litigation which is now
before the courts is that it does not raise all the matters that
may affect the decision as to the legality of the procedure or as
to the legality of the proposed legislation, if passed. In my
view, we should delete those provisions that diminish the
sovereignty of the provincial legislatures in matters within
their exclusive jurisdiction and which drastically amend the
Canadian Constitution. We should proceed with the patriation
provisions, the amending formula provisions and the one or
two other items that I have mentioned as being clearly within
both our federal authority and that of the United Kingdom
Parliament under what is left of section 7 of the Statute of
Westminster, and which fully meet our constitutional
There is a widespread feeling of frustration and dissatisfac-
tion with, and alienation from, the federal government in large
areas of this country. This is most obvious, perhaps, in western
Canada and Quebec, but it exists to a limited extent elsewhere.
To add to this feeling of frustration and alienation, there is the
fact that this government, like the last one, has no representa-
tion from large and important regions of the country. It
derives its support mainly from central Canada.
Surely, all this indicates that more than ever we should
proceed with great delicacy. Surely, we should not further
exacerbate the already dangerous alienation of such large
segments of the Canadian population.
To proceed as we are being asked—unilaterally, with a
federal Parliament without representation in large sections of
the country and against the expressed opposition of the provin-
cial governments~is wrong. It is wrong for three reasons:
First, it is not legal. It is beyond our jurisdiction to proceed
as we are. Yet we do not let the courts decide; we simply press
Secondly, it is contrary to long- and well-established consti-
tutional practice, which may even be construed as law through
long usage. Again, we do not let the courts decide, Why?
And, thirdly, it is politically wrong for us wilfully to jeop-
ardize the unity of this country as we are doing. We in
Parliament surely have an obligation, in serving our country,
to keep it strong and united. Yet, if we persist, we may be

DEBATES March l7, I981
contributing to the break-up of the present federal system and
its replacement by some lesser system of government.
We in the Senate were sent here for the purpose of protect-
ing the regional interests of the country against the mere
weight of the popularly elected majority from the thickly
populated parts of the country, I believe that, by the very
nature of our country, such a provision is necessary and
I have served in Parliament now for the past 41 years.
During that time the governments have been headed by five
prime ministers. I have been a Liberal all my adult life. All of
the political leaders I noted earlier in my remarks were leaders
I respected and admired. With the exception of Sir Wilfrid
Laurier and the Honourable Hugh Guthrie—whom I merely
met but could not say I knew-they were friends of mine.
Were they all wrong? Were all the leaders of the Liberal Party
in the past three-quarters of a century totally wrong, or could
it be that our present government is wrong in taking a diamet-
rically opposed course of action to the one all those leaders
thought necessary and proper? Could it be that the present
government is wrong in this attempt to make these basic
amendments to our Constitution unilaterally, with a bare
majority in the federal Parliament? And here I refer to the
portion about which I have spoken; not the portion dealing
with patriation.
Q (I650)
I want patriation but I cannot acquiesce in the wrong and
dangerous course we are being asked to follow in most of the
proposed legislation before us. In the exercise of my respon-
sibilities as a senator, I have no alternative but to vote against
this resolution in its present form.
Hon. Henry D. Hicks: The question I wanted to address to
my honourable friend refers to clause 15. I am sure that he
had noted that clause I5 begins by stating that “every
individual is equal before and under the law” and goes on to
say that every individual is entitled to the “equal protection
and equal benefit of the law.” Some of the preceding clauses,
and notably clause 6, refer to “every citizen of Canada.”
When clause I5 refers to every individual, does it not include
non-nationals who are resident in Canada and might it not
preclude a provincial government from enacting legislation for
residents of the province who are Canadian citizens exclusively
and enable others to take the same benefit from that legisla-
tion? It seems to me that clause 15 as it is presently worded
could have very wide ramifications. Has my honourable friend
given that matter any thought?
Senator Mcllraith: In answer to Senator Hicks, I have not
thought specifically about that situation. The clause was put in
there for another purpose, which appears in the transcript of
evidence given before the committee. I believe committee
members will correct me on that ifl am wrong.
However, I have noticed that the Charter of Rights——which
I would like to look upon with a feeling of respect and pride
and as a rather elegant piece of draftsmanship—while the
motives for it may be quite laudable, as I said in my remarks
[Senator Mcllraith]
last fall when I was raising the procedural point, is “devoid of
distinction“ or perhaps I said “destitute of distinction”. In any
case, there are many portions of that charter which should be
reviewed more thoroughly. I apologize for giving this kind of
indirect answer to the honourable senator.
Senator Hicks: In light of my honourable friend‘s knowl-
edge of the work of the committee, knowledge which I do not
share, would he comment on an anomaly which I cannot
explain that is found in clause 45. It deals with the amending
formula, or the so~called Victoria formula. Clause 45 refers to
the concurrence of two or more of the Atlantic provinces and
two or more of the western provinces that have in the aggre-
gate a population of at least 50 per cent of the population of
the western provinces. Why were the Atlantic provinces not
accorded the same protection as the western provinces?
Senator Mcllraith: I am afraid I cannot answer that ques-
tion. However, I believe that it is probably because of the
small population of Prince Edward Island. However, I am not
qualified to give an answer or, more precisely, I have not
looked at that point.
Senator Hicks: On the contrary, that clause would mean
that Prince Edward Island and Newfoundland could frustrate
the interests of the Atlantic provinces, though together they do
not have as great a population as either of the other provinces.
Senator McIIraith: Yes, but the purpose was to give Prince
Edward Island some rights, otherwise it would have no say in
such matters.
Senator Macquarrie: Hear, hear!
Senator Mcllraith: I must say that I have not specifically
looked at that point.
Hon. R. James Balfour: Honourable senators, the afternoon
grows late, and I would like to assure you that my intervention
will not be lengthy. At the outset_of my remarks, I extend to
my colleagues on both sides of the chamber who participated
in the work of the Special Joint Committee on the Constitution
my congratulations on a difficult task performed with great
diligence and skill that did great honour to this institution. As
well, I have been greatly impressed by the high level at which
the debate has been conducted by those who preceded me. I
disagree with many of the positions taken by speakers oppo-
site, but I recognize and respect the sincerity and strong
conviction which motivates those who have taken those
I also expressed my opinions in this chamber last October on
the matter of constitutional reform. 1 regret to say that little
has occurred since then to allay the doubts and concerns which
I had at that time with respect to the path the government of
Canada has set out upon. I am opposed to what is proposed to
be done, not upon legalistic or technical grounds, but upon two
fundamental grounds which, in my view, transcend much, if
not all, the surrounding underbrush of constitutional reform.
It is proposed that fundamental, far-reaching changes to the
constitutional relationship of the Governments of Canada,
federal and provincial, shall be carried out by the legislative

March l7, I981 SENATE
actions of a foreign country. That, honourable senators, is
wrong. As part and parcel of that constitutional change, it is
proposed that in the future constitutional amendments may be
achieved by the unilateral action of the federal government
through a process of a referendum. That likewise, honourable
senators, is wrong.
Last October I expressed my views in strong terms concern-
ing the offensive process by which the Prime Minister intends
to achieve his constitutional objectives, namely, by an act of
the Parliament at Westminster. I speculated with respect to his
motives in this regard, particularly in light of his well-estab-
lished representations as opposing any continued vestige of
colonial status so far as the conduct of the affairs of this
country are concerned. I wondered then, as I wonder today, if
by this means he hopes to incorporate changes in our Constitu-
tion which would not be subject to review by the Supreme
Court of Canada. At the same time I suggested, as others have
suggested, that the substance of the resolution before us could
easily, at the initiative of the federal government, be referred
to the Supreme Court now for a determination of its validity
within the context of our Constitution.
The question of unilateral amendment is so offensive to both
the opposition in this Parliament and practically all the provin-
cial governments of this country that I have concluded the
government is motivated to make this drastic change in our
constitutional relationship because it has concluded that the
existing federal system no longer works and that progress in
this country can no longer be achieved by the judicial process
of consensus. On that premise the Prime Minister of Canada
justifies in his own mind arbitrary and unilateral action
against the opposition of both the provinces and, if recent
Gallup poll figures are to be believed, 65 per cent of the people
of Canada. On that premise the government intends to take
unto itself the power unilaterally to amend the Constitution of
Canada over the heads of elected governments and legislatures
of the provinces of Canada, and it proposes to do this by
asking another country, Great Britain, to, in effect, alter basic
Canadian rights and freedoms, an act which amounts to a
blatant surrender of Canadian sovereignty.
This action was recently and succinctly characterized by the
former Leader of the Opposition as a coup d‘état. Mr. Robert
Stanfield is correct in that assessment. Again and again it has
been stated by members of the government party that Canadi-
an federalism is a 54-year record of failure. The fact of the
matter is that Canadian federalism in years past has produced
agreements between the two levels of government on such
matters as hospital insurance and the delivery of medical
services, on a Canadian pension plan, on fiscal equalization, on
highways and on energy, and, most recently—-in September-
on the so-called Vancouver consensus as the basis of an
amending formula which would make it possible, as it must be
made possible, for Canadians to change their own Constitution
here in Canada.
O (I700)
Canadian federalism can and does work when reasonable
governments and reasonable leaders permit it to work. The
system fails only when its leaders permit it to fail. I reject
completely the proposition that ll4 years of our history as a
successful, Canadian federal state should now be abandoned to
be replaced by some form of unitary state.
Our federal system grew out of the diverse nature of this
country, Canada. I submit that no other system will succeed
here. No other system will adapt to our diversity, our size and,
if you like, our geography. This carries with it significant
regional differences which, if we are to remain a united
country, must be accommodated, and accommodated by a
process of negotiation and consensus. To do otherwise, I
suggest, means running a grave risk of tearing this country
apart; and then, indeed, our 114 years of history will become
truly irrelevant.
The Parliament at Westminster has no business deciding the
substance of the Constitution of Canada. But what is more to
the point, Canada, as a mature, independent nation, has no
business asking the British to do what it is asking them to do,
namely-—to use the words of the Prime Minister of Canada~
to hold their noses and pass it. There is only one acceptable act
for the Parliament at Westminster to perform, and only one
proper request to be made of them by this country. They
should be requested to send the Constitution home immediate-
ly with an amending formula acceptable to Canada, and then
let every other question of our Constitution be decided in
Canada by Canadians.
On motion of Senator Guay, debate adjourned until later
this day.

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