Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Debate Continued” (18 March 1981)

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Date: 1981-03-18
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2098-2107.
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DEBATES March 18, 1981

The Senate resumed from yesterday the debate on the
motion of Senator Pcrrault that an Address be presented to
Her Majesty thc Queen respecting the Constitution of Canada.

March 18, 1981 SENATE
Hon. Ernest C. Manning: Honourable senators, it is now
over five months since the government made public its package
of constitutional proposals. In the intervening weeks, these
proposals have been studied by a joint committee and debated
at length in both houses of Parliament and across the nation.
The time is now approaching when we, in this chamber,
must render our verdict on this controversial issue which has so
grievously divided our country. Our decision will profoundly
affect the future of this nation and, because of our unique role
in this matter, may well affect the future of this house itself.
Stripped of all partisan political verbiage, the issue on which
we must render our decision stems from two developments of
which we are all aware. First, the government is asking the two
houses of Parliament to join in requesting the Parliament of
Great Britain to approve amendments to Canada’s Constitu-
tion which will significantly change the nature and status of
the federal union by which this nation was formed and under
which we have lived for ll4 years. Second, the wisdom of
some of the amendments, and the procedure proposed to attain
them, are open to serious question and are opposed, in whole
or in part, by millions of Canadians and by eight of the
governments of the ten provinces which are parties to our
federal union. I have not included a reference to patriation
because that is not an issue on which there is disagreement.
In light of these circumstances and our responsibility as
senators to the regions of Canada, whose interests we repre-
sent, we must decide if we should or, indeed, can, give our
support to the government’s request.
May I first address the major consideration we must take
into account in assessing the proposals themselves? The pro-
posal to entrench a Charter of Rights and Freedoms in the
Constitution is a significant departure from the concept of
human rights which we have cherished in this country for over
lOO years. The concept of human rights, which we inherited
from Britain, rests on the conviction that men and women do
not acquire their rights from the state. It holds that all human
beings are born with inalienable rights which may be circum“
scribed only with the consent of the people themselves, through
their elected representatives acting under the checks and bal~
ances of a parliamentary democracy. That is why, whenever it
has been considered necessary to cireuinseribe the rights of
individuals in the interest of society as a whole, or to provide
individuals with the legal power to enforce some particular
right, the procedure has always been by way of an act of
Parliament or an act ofa provincial legislature.
Advocates of entrenched rights frequently imply that for
citizens to possess and enjoy such rights they must be
entrenched in a constitution. This simply is not true. lt has
been a fact of our national life in this country for over 100
years that Canadian citizens have possessed and enjoyed a
range of inalienable human rights extending far beyond the
limited list of rights it is now proposed to entrench.
The concept of entrenched rights is an offshoot of the
doctrine of the supremacy of the state, and a belief that
individual rights are benefits bestowed by the state, rather
than an integral part of that heritage of freedom to which all
human beings acquire title at birth. it carries the implication
that rights, not expressly conceded to individuals, remain with
the state, which is the reverse of our Canadian concept that all
rights belong to individuals except those which they, through
the process of parliamentary democracy, voluntarily transfer
to the state.
Our American cousins initiated the practice of entrenched
rights on this continent when they passed their Bill of Rights
in l79l, five years after the adoption of their Articles of
Confederation and l5 years after their Declaration of lndepen»
dencc affirmed the doctrine of inherent inalienable human
rights by those oft quoted words:
We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator
with certain inalienable rights, that among these are life,
liberty, and the pursuit of happiness.
Proponents of cntrenchment argue that even if unnecessary,
it is desirable for two reasons: One, it provides every citizen
with legal redress if his or her entrenched rights are violated—-~
certainly, legal redress may sometimes be desirable, but when
it is, it can more appropriately be provided by the enactment
of federal and provincial bills of rights; and, two, it takes away
from Parliament and the provincial legislatures the power to
pass laws which diminish or infringe on the rights which are
entrenched. This is the fundamental difference between pro~
tecting rights by statute and protection by entrenchment.
. (I520)
There is something paradoxical about the arguments
advanced. To hold that our proven system of parliamentary
democracy is the best form of government ever devised to
ensure the rights and serve the interests of free men and
women in a free society, and, at the same time, contend that
entrenchment of rights is necessary to protect the people from
the parliaments they elect, to say the least, requires a mind
unfettered by the virtues of logic and consistency.
After all the abstract arguments have been made, the fact
remains that the greatest guarantee that human rights will be
respected is not statutes of parliament or constitutional
entrenchments, but the amount of social, political and moral
integrity we ourselves build into our society.
This was well expressed by a former Prime Minister of
Canada in these words:
Our basic constitutional inheritance from Britain is the
supremacy of Parliament and Legislatures within their
respective jurisdictions. Thus no Bill of Rights can offer
absolute protection in our system, but a constitutional
amendment would not necessarily achieve this either. The
American experience suggests that their constitutional
law and courts were often unable to prevent violations of
rights. Rights and freedoms are not established or protect-
ed merely or primarily, or often at all, by proclamations
of beliefs or written constitutions, but by the slow, sure
building of a sound progressive social, political, and eco~
nomic structure of law, justice and understanding. That

DEBATES March 18, 1981
has been the British way, and it has worked there, and on
the whole it has worked with us too. Rights require the
protection of practice, not merely those of paper.
That wise observation was made by the late Right Honour-
able Lester B. Pearson during the debate on the Diefenbaker
Bill of Rights. Canada would not be in the divided state it is in
today if his successor had demonstrated comparable insight
and wisdom.
For more than one hundred years our nation has demon-
strated the soundness of those traditional twin philosophies of
inalienable human rights and the supremacy of Parliament as
the guardian of those rights. There is no logical reason to alter
a system that has proven so eminently satisfactory. It would be
a retrogressive step to transfer from the elected members of
Parliament to the appointed members of the courts the author-
ity and responsibility to define human rights and render
decisions where the issue of human rights is the key factor
involved. lt is not a re?ection on the courts to hold that it is
improper to extend the role and responsibility of judges to
decisions based not on legal facts but on the courts’ interpreta-
tion of social policies and abstract rights, which belong in the
political rather than the judicial realm. Adjudicating cases
arising from disputed definitions and alleged violations of
constitutional rights requires courts to make social and politi-
cal as wcll as legal judgments.
Another cause for concern is the adverse effect entrench-
ment would have on the successful prosecution of criminals.
The experience in other countries provides ample evidence that
entrenchmcnt of legal rights is far more advantageous to the
criminal element than to law-abiding citizens. This was
emphasized by the Canadian Association of Chiefs of Police in
their submission to the joint committee. They said, in part:
—we find the new proposals to be alarming in the
extreme. We remain of the firm opinion that cnshrining
legal rights in a Charter of Rights and Freedoms in a
Constitution is neither necessary nor desirable. In our
vicw, U.S. constitutional provisions, similar to those now
proposed by the Government of Canada, and subsequent
judicial interpretation of those provisions, bear a Signifi-
cant dcgree of responsibility for the high levels of crime
currently found across America.
The Canadian people must understand that the appeal-
ing rhetoric of “due process” and “civil liberties” can
disguise a gradual process which aims at the destruction
of the law enforcement function. instead of contributing
to freedom and fair play, these concepts can be used as
the basis for the gradual entrenchment of provisions
whose cumulative cffcct will ironically result in not more
freedom, but less.
These serious concerns voiced by those charged with pro-
tecting the lives and property of citizens are aggravated by the
use in the proposed legal rights section of ambiguous terms
such as “reasonable” and “unreasonable” which occur no less
than four times, and such expressions as “cruel and unusual
punishment.” Such terms are open to a wide range of interpre-
[Senator Manning.)
tations. Given the trends of our times and the bias in favour of
the criminal of many civil rights pressurc groups, it may soon
be_held cruel and unusual treatment to confine a rapist or
murderer to a cell without hot and cold running water and a
coloured television. When ambiguous terms in statutes are
interpreted by the courts contrary to the intent of parliament.
amendments can readily bc made to clarify the intent, but
when the provisions are entrenched in the Constitution such
clarifications are next to impossible. They, therefore, become
the basis for a continuous succession of appeals through the
courts, while the guilty remain unpunished and justice lan-
guishes on the sidelines. In the eyes of thc public, justice
delaycd is justice denied.
At a time when rampant violence and crime is a matter of
far greater public concern than the government’s desire to
amend the Constitution, it is irresponsible and wrong to
render, unnecessarily, the task of law enforcement even more
difficult. This chamber should not be a party to such a
rctrogressive step.
The government‘s proposals do more than impair the
supremacy of Parliament and provincial legislatures by
restricting their powers to legislate on behalf of the people. In
the field of education they take away from the provinces the
exclusive jurisdiction that was a basic tenet of our federal
union, and an undisputed right the provinces have possessed
and exercised for more than a century. This is being done by
making one facet of entrenched language rights a provision for
parents to demand educational facilities in the official lan-
guage of their choice at provincial expense, if the number of
students in any community so warrants. The decision as to
whether the number of students so warrants will no longer
remain with the provincial government or elcctcd school
boards, but with the courts. Provisions of this kind discredit
the government’s oft-repeated assertions that their proposals
do not in any way lessen the constitutional powers the pt’0V~
inces now possess.
I now turn to the matter of an amending formula. The
proposals are complicated, and I will not delay the house by
dwelling on the details. Basically, the provisions are that the
so-called Victoria Charter amending formula may be brought
into force by unanimous consent at any time within two years
after the Constitution Act is proclaimed, or by proclamation
under the Great Seal at the expiration of the two-year pcriod,
unless the legislatures of at least seven provinces representing
80 per ccnt of the population have formally made a joint
proposal for an alternative formula. If so, a referendum will be
held within two years to decide between the Victoria Charter
amending formula and that proposed by the seven or more
provinces. The formula approved by the referendum will
become part of the Constitution Act, by proclamation, within
six months of the referendum. Future amendments will then be
made under the adopted formula or by way of a further
referendum which may be authorized by the Governor General
under the Great Seal of Canada if, within one year of a
resolution of both houses of Parliament proposing an amend-
ment, such amendment has not been endorsed by the number

March 18, 1981 SENATE
of provinces required to give consent under the amending
These proposals contain features which are discriminatory
and objectionable, and if implemented will be permanent
causes of regional resentment and alienation.
The Victoria Charter amending formula provides that an
amendment affecting all provinces requires a resolution of
both houses of Parliament, the approval of Ontario and
Quebec, at least two of the Atlantic provinces, and at least two
of the western provinces which combined have a population of
at least 50 per cent of the four western provinces. The effect of
this is to create three categories of provinces: (1) the two
central provinces, each of which will hold a permanent power
of veto over any amendment; (2) the four Atlantic provinces,
any two of which will be sufficient to approve or reject an
amendment; and (3) the four western provinces where two
have an effective voice only if they represent over 50 per cent
of the population of all four. This means that Prince Edward
Island and Newfoundland, with a combined population of less
than any one of the western provinces, could approve or
prevent an amendment. But for the western provinces, the
formula is different. No two of them can approve or prevent a
constitutional amendment, unless one of the two is l3.C.,
because no two of the other three represent 50 per cent of tlte
population of the four western provinces combined. Such a
provision is grossly discriminatory and docs violence to the
concept of all provinces as equal partners in Confederation. If
the federal government had set out deliberately to devise a
formula to alienate the prairie provinces further, they could
not have come up with a more effective procedure.
Q (I530)
Some provision to recognize the tremendous disparity in
population between provinces is reasonable, but surely a far
more responsible approach would be to give all provinces
identical limited veto powers restricted to amendments which
would deprive the province of a traditional constitutional
power conferred on it when it entered Confederation.
The provision that the federal government will in the future
be able to resort to a referendum if the required number of
provinces fail to concur under the amending formula, may well
become a cause of serious national disunity. Apart from the
divisive effect of any referendum, it will be perceived as a
political strategy to by-pass the duly elected provincial legisla-
tures by bringing the full force of federal government propa-
ganda campaigns to bear on the population as a whole. Such
situations are not the ingredients ofa meaningful federal union
and will hinder rather than help in building a strong and
united nation.
This brings me to one of the most important aspects that we,
as senators, must consider in reaching a sound and objective
decision. Whether the proposals are good or bad, sound or
unsound, in a federal state a fundamental change should not
be made in the Constitution of the nation without widespread
public support and the concurrence of at least a majority of
the provinces, Whether we agree or disagree with the pro-
posals, we must ask ourselves whether it is right, legally,
constitutionally and morally, for the Government of Canada to
ask the Parliament of another country to amend our Constitu-
tion in the manner proposed, in the face of widespread public
opposition and without the consent of at least a majority of the
provinces, which are members of our federal compact and
whose present constitutional rights and powers will be signifi-
cantly affected by the changes proposed.
My submission is that it is not right, especially when it is
extremely doubtful that the Prime Minister could obtain in
this country today the governmental and public support neces-
sary to implement his proposals under his own proposed
amending formula.
Whether his action is legally defensible is a matter currently
before the courts, but its moral and constitutional rightness, in
the broad sense, is a judgment that we in this chamber must
There are three pertinent facts which we must take into
account. First, the constitutional rightncss of what the Prime
Minister is asking has been challenged not only in Canada but
also by some of the leading constitutional authorities in Brit-
ain, where members of Parliament are deeply disturbed about
the constitutional propriety of what they are being asked to do.
We will certainly be hearing more on this if the government
succeeds in forcing its proposals through Parliament.
It should be remembered that for years the Judicial Com-
mittee of thc British House of Lords was the highest court of
appeal for constitutional references from this and other mem-
bers of the Commonwealth. Its membership includes eminent
constitutional authorities with a wealth of experience in consti-
tutional law. Men ofthat calibre will not be intimidated by the
Prime Minister’s veiled threats, or the blustcrings of the
Secretary of State for External Affairs, into rubber-stamping
the Constitution Bill, if they conclude that they do not have
the constitutional right to do so without the concurrence of at
least a majority of the provinces who are joint partners with
the federal government in Confederation and whose legislative
powers are being changed by the amendments.
Second, the course the government is following does violence
to our longstanding Canadian tradition of proceeding with
major constitutional amendments only after unanimous or
near-unanimous support of the provinces has been secured.
Third, the inappropriateness of the government’s arbitrary
unilateral action, as I have pointed out in this house before, is
underscored not only by the fact that eight of the ten provinces
are opposed, but by the fact that the federal government party
in the present Parliament is in no sense a representative
national government. Over 50 per cent of its members are
from one province, Quebec, another 36 per cent are from the
other central province, Ontario, leaving only 20 government
members from all the rest of Canada, and only one from the
four western provinces whose six million people account for 25
per cent of Canada’s population. For a federal government,
with no broad national representation in Parliament, to use its
numerical majority concentrated in the two central provinces
to impose its will on the entire nation in a matter as vital as the

DEBATES March 18, l98l
country‘s Constitution, in the face of strong opposition from all
but one of the other eight provinces, is wrong and indefensible.
The government has sought to lessen its vulnerability by
wooing the support of the NDP, whose members in Parliament
are mostly from western Canada. There was a willingness on
the part of the NDP national leadership to enter into a
marriage of expediency in the hope of some political gain, but
it did little to strengthen the governments position. Four
Saskatchewan NDP members have repudiated their national
leader‘s capitulation to the government’s political seduction.
The NDP Government of Saskatchewan has rejected the
federal proposals, and has been joined in its opposition by the
Manitoba and Alberta wings of the NDP. The government
therefore remains without any truly national representation in
its determination to force on the Canadian people the Consti-
tution the Prime Minister has decided they need and are going
to have, whether they want it or not.
I remind honourable senators that this pressure for constitu-
tional change did not originate with the Canadian people.
There has never been, and is not now, any significant public
demand for constitutional change, certainly not of the kind the
government is proposing. No urgent national situation exists
that makes such action a matter of national necessity. The
pressure for constitutional change was initiated by the Prime
Minister and has become a national issue only because he has
made it so. Nor can it be justified on the grounds of commit-
ments to hasten constitutional change to satisfy Quebec‘s
aspirations and concerns. What Quebec has long demanded
and repeatedly emphasized during the referendum debate is a
new federalism that will give the province greater autonomy in
the management of those affairs which directly affect its
internal interests. There is absolutely nothing in the federal
proposals that gives Quebec or any other province more lati-
tude to be masters in their own house. ln fact, the very
opposite is true. The effect will be to circumscribe further
rather than enlarge provincial legislative powers.
We would all be delighted to see our nation adopt a new,
modernized, made-in-Canada Constitution that would provide
the foundation for a new federalism and a new national policy
under which our two levels of government and the diverse
regions of our country could work together in harmony, and in
which our people could takejustifiable pride. But it will never
be brought about by the arbitrary course of action on which
the government has embarked. In a democratic nation it is
folly for a government, especially one with only limited nation-
al support, to try arbitrarily to force fundamental constitution-
al change, unless and until there is that widespread measure of
public and governmental approval necessary to ensure willing
and enthusiastic acceptance of the changes proposed.
That is why constructive constitutional change will always
be the last step in a long and sometimes frustrating process,
and the reward not of political leaders willing to tear the
country apart to gain their own ends, but of those who by wise,
patient, and constructive leadership have first guided the
nation into an era of mutual trust, willing co-operation and
national good will.
[Senator Manning]
Q (I540)
This is a far cry from what we find in Canada today. We are
faced with a nation angered by its government, shot through
with regional alienations, and divided as never before. We are
faced with a controversial set of constitutional proposals born
in an atmosphere of confrontation and ill will. We are faced
with a government prepared to use its majority, drawn from
only two provinces, to force on the entire nation a Constitution
unacceptable to millions of Canadians and rejectcd by eight of
the ten provinces. We are faced with a government determined
to act unilaterally to alter the present constitutional rights and
restrict the legislative power of those provinces, not only
without their consent but over their vehement opposition.
These are the sobering facts we must consider as we vote on
this resolution.
As senators, we occupy a position uniquely different from
that of the elected members of the other place. We constitute
more than a chamber of sober second thought. We have been
appointed to represent our respective provinces in this house.
We have been selected to provide the necessary checks and
balances on a parliamentary structure where representation by
population results in imbalances that invite the kind of abuse
of parliamentary majority power we are witnessing today. We,
as senators, have a particular responsibility in matters where
the Constitution of Canada is concerned. The positions we take
and how we vote must never be dictated by party affiliations,
party loyalties or party discipline. Our positions and our votes
must re?ect the positions of the regions and provinces whose
rights and interests we are appointed to protect. To that end,
far more than elected members of the other place, on constitu-
tional issues which involve all provincial governments as well
as the federal government, we have a responsibility to take into
account the position of the governments of the provinces we
It is superficial to argue that provincial governments do not
represent the position of the majority of their people. ln our
democratic system, the smaller the unit from which a govern-
ment is elccted, the more accurately it represents the position
of its electors, and for this reason provincial governments are
by their very nature closer to the people than the government
of the country as a whole. While federal members of Parlia-
ment speak for the people of their province in federal matters,
provincial governments represent and speak for their people in
matters where their provincial rights and interests are con-
cerned, and that is at the heart of the issue we are dealing with
in this debate.
We are all well aware that the obligation to represent the
position and safeguard the rights and interest of their respec-
tive provinces in this instance creates a difficult problem for
senators affiliated with the governmcnt’s political party. lt is
not easy for a senator to reject the recommendations of a
government of which he has been a long-time supporter; but
sometimes his constitutional responsibility leaves him no
choice. Surely that is what the role and responsibility of this
upper chamber is all about. None of us, including those
affiliated with the government party, are here to rubber stamp

March I8, l98l SENATE
whatever the government asks us to approve. In the case before
us. our responsibility is clear. Not only are the government’s
proposals unsound in themselves, but eight of the ten provinces
are on record as opposing the government’s request that its
constitutional package be approved. We, as representatives of
those provinces, have an inescapable duty to give tangible
expression to that opposition.
Over the years, the value of this upper chamber to the
Canadian people has frequently been questioned. It has been
criticized and belittled, often through ignorance, sometimes
through prejudice, but not always without cause. Too often
there has been a timidity with regard to exercising our consti-
tutional power and responsibility to say “no” to the govern-
ment majority in the other place. Too often there has been a
tendency to protest questionable government proposals with
our voices but not with our votes. As a result, the public has
become increasingly critical of, or indifferent to, our existence
and our role in the parliamentary process. Recently, when the
government proposed removing the Senate‘s power of veto,
intervention by senators persuaded the government to change
its mind; but many may well ask, “Of what practical value to
the Canadian people is the Senate’s power of veto if it is not
exercised even in those instances where there is an obvious
constitutional responsibility to do so?“
The issue before us now is precisely such a ease. it is
doubtful if there has been an occasion in the past century when
members of this chamber, as guardians of provincial interests
and rights, faced n more obvious responsibility to say “no” to a
government request. On this occasion at least, the eyes of
Canada will be on this chamber as we vote. At such a crucial
hour in our nation’s history and on a constitutional issue of this
magnitude, if party loyalties or discipline prevail over our
responsibility to the provinces we represent, public disillusion-
ment with this house will be complete.
if we fail in our responsibility on an issue of this importance
to our nation, I, for one, and l am sure other senators as well,
will find it extremely difficult, if not impossible, to continue to
justify before the Canadian people the existence of the Senate.
On the other hand, if, on this historic occasion, we demon-
strate by our votes the practical value of this house as the
constitutional guardian of the rights and interests of Canada‘s
diverse regions and provinces, we will by that one tangible act
gain for this chamber a degree of public respect and confi-
dence beyond anything it has known before. To paraphrase the
words of Churchill: If this house endures another hundred
years, men will still say, “This was their finest hour,”
For the reasons I have stated, I intend to vote against this
resolution. For the good of Canada, I earnestly hope that a
majority of other senators will do likewise.
Hon. Florence B. Bird: Honourable senators, it is evident
that the Honourable Senator Manning does not identify him-
self with a minority group, nor with the aboriginal peoples of
our country. It is also plain that he is indeed not a woman.
I should begin by saying that I was ill during the month of
February, and that to be absent during this vitally important
debate has been, for me, a desperately frustrating and unhap-
py cxpericnce. Fortunately, I have been able to read Senate
Hansard and to attend by way of television many of the
meetings of the joint committee and the debates in the other
place. I have also had a chance to think, to look into my own
conscience, and to try to hold the truth sub specie aeternimzis.
lt seems to me that as we face a momentous decision for our
country we must acknowledge honestly the difference between
shadow and substance.
By “shadow” I mean such things as warnings of impending
doom, manipulation of the ignorant, organized defeatism,
threats that Canada will not endure if we draft a new Consti-
tution suitable for a pluralistic society in 1981, and also
slanderous, unwarranted personal attacks frotn another coun-
try on the duly elected Prime Minister of Canada. Even in this
country I find that arguments ad hominem are the cheapest,
tnost despicable, least convincing form of political dialectic.
The truth-—the substance—is that during the last three and
a half months something exciting, heartening and very impor~
tant to the future of our country has been happening here in
our nation‘s capital. Hour after hour, day after day, the
parliamentarians sitting around their big table in the West
Block, under the harsh, hot lights and probing cameras, have
slowly, laboriously and successfully produced a charter of
human rights of which we can all be proud, and for which
generations to come will call us blessed.
it was remarkable to see what happened to the members of
the joint committee. At first there was considerable posturing
and procedural filibustering. Questions from the opposition
were often leading, loaded, even patronizing, in an attempt to
belittle the whole important operation.
Q (I550)
As the cold autumn days turned into winter, a change began
to take place. Some of the members of the committee may
have seen themselves on the delayed broadcasts on television
and been ashamed. The television eye has a way of showing up
what Damon Runyan called the “phonus bclonus”. lt did that
very effectively with Senator McCarthy in the United States
during the 1950s. And it did it here during the committee
hearings. Televising the proceedings acted as a valuable,
modern educational process for the public as well as for
members of the committee.
Anyway, after a while, the “phonus belonus” faded away. A
new mood of responsible co-operation developed on both sides
of the table as these men and women heeded the call of duty,
“stern daughter of the voice of God.” They had obviously
become converted to the importance of their job by the high
quality of the submissions, the sincerity of the witnesses and
the cogcncy of the arguments put forward. And so they
listened. They asked sensible, probing questions, obviously
searching for clarification and understanding, and they made
67 valuable amendments.
Both of the chairmen put on an impressive performance of
exemplary patience and careful fairness. Mr. loyal grew in
stature as he showed the same degree of intuitiveness, good

DEBATES March l8, l98l
manners and forbearance to each and every one of the wit-
nesses. Senator Hays was his usual good-humoured, irrepres-
sible self-I trust that I am in order and I am sure he will
accept the spirit in which I say, “That boy done us proud.” I
am sorry, but I thought that he would be here today.
Personally, I have a sense of urgency about the proposed
Charter of Rights because I am a woman and because I have
been involved in the cause of human rights for over 40 years.
Anyone who has studied the shameful history of western
women knows how long it has taken us to move from the status
of chattels to that of persons under the law.
Up until the latter part of the last century, we were denied
the right to a higher education and to practise in the profes-
sions. Only half a dozcn menial, badly paid jobs were open to
us. When we married, our husbands had control of our prop-
erty and jurisdiction over the education of our children. Even
as late as the 1930s a married woman in Quebec could not
have a bank account or a surgical operation without her
husbands consent. Even during the last world war, married
women in Manitoba were not allowed by law to teach in public
schools. Within the lifetime of most of the honourable sena-
tors, women were denied the right to vote or to hold public
office. We were deprived of our citizenship, as were our
children, when we married an alien. We were, in fact, what
Simone de Beauvoir called “le deuxieme sexe.”
Today, thanks to a prolonged and bitter battle, women are
separate as to property when they marry. In one province,
Quebec, women now arc granted a partnership of acquests,
and in several other provinces the contribution of a wife to a
marriage is recognized under the law. with the extent of that
contribution decided by the judiciary when a marriage is
dissolved by separation, death or divorce.
Today women are pouring into universities and graduate
schools. Most jobs are now open to us. We have equal political
and citizenship rights. Since i929 we have been recognized as
persons and can sit in the Red Chamber. ln the last decade we
have made great progress. But, and it is a big “but”, women
still do not have equal economic rights. We are still paid less
than men when we do work of equal value. We are still largely
outside the power structure in government and the private
The majority of old women are poor because we often earn
less than men even when we do work of equal value, because
we live longer than men and the work we do in the home is
often not recognized under many husbands‘ superannuation
plans, and because we are still generally confined to low-paid
jobs, so that our earned pensions are so small that we are
condemned to penury in our old age. ln recent years there have
been several court cases that illustrate that in some areas we
do not have equality under the law. ln fact, we do not, in
general, have equal opportunities in every aspect of Canadian
society. In particular, Indian women living on reserves are
grossly and ?agrantly discriminated against.
The majority of informed Canadian women~and I am one
of them——believe that Canada must have an entrenched Char-
[Senator and.)
ter of Human Rights and Freedoms to give us equal rights and
opportunities in every province and in those areas under
federal jurisdiction. ln recent months l have been seized with
the conviction that it is imperative that our rights be
entrenched now, not next year, in five years, in ten years or in
some indefinite number of years from now. We need to have
our rights entrenched now so that they cannot be taken away
from us except by an amendment to the Constitution. We need
it now because strong reactionary forces are spreading in the
United States. The attitude of the Republican Party toward
women and the likely rejection of the Equal Rights Amend-
ment are writing on the wall. We need the entrenched Charter
of Rights in Canada now to protect us against infection from
the virus of reactionary forces which docs not respect interna-
tional boundaries.
Already in Canada it has been suggested by a powerful
lobby that married women be deprived of unemployment
insurance because they should be treated as secondary wage
earners. During a period of in?ation two pay cheques have
become a necessity for thousands of Canadian families. ln
most families the wife is the secondary earner because women
are still confined to badly paid occupations, but that does not
alter the fact that they are making a tremendous contribution
to the family and the country and need to be protected by
unemployment insurance just as much as any male wage
Several of the 67 amendments made by the joint committee
seem to have given women the protection they demand and
must have. I am not a constitutional lawyer, but I am confi-
dent that the law officers of the Crown and the members of
the committee who drafted the amendments to clause l5(l)
and 15(2) have put the obvious intention of the clause into
correct legal language which will not be misinterpreted by the
courts. It is gratifying that clause 15(2) will enable women to
take part in affirmative action programs which will in time
enable them to make full use of their potential ability and
qualify for jobs now denied them.
I am confident that all the hard work by members of the
committee and their efficient support staff during the exhaust-
ingly long hours has produced a greatly improved version of
the original draft of the Charter of Rights. Neither the breast
beating nor the territorial howling of seven provincial premiers
can alter the fact that the proposed charter is a splendid
document. It is a compassionate and liberal charter based on a
concept of tolerance and pragmatic idealism. It amounts to a
clear act of faith, which is rare and inspiring in the materialis-
tic, intolerant and obfuscated world in which we find ourselves.
lt was written in Canada for Canadians by Canadians. No one
from any other country had anything to do with it. It would be
a tragedy if it were allowed to wither on the vine of political
When I look across the red carpet, I see several members of
the opposition whom I respect and admire.

March I8, l98l SENATE
I know that they are fine citizens and that they love Canada.
I hope that when the time comes to cast their final vote on the
joint resolution, some of them will have been persuaded by my
dear colleagues not to try to prevent Canada from entrenching
a Canadian Charter of Rights and Freedoms in its new I981
This will not, of course, be the final charter. There will
never be a final charter. In the years ahead there will be
amendments to the Constitution, since no constitution should
be an inflexible, unalterable document. Undoubtedly, Parlia-
ment and legislatures will, in the future, bring in legislation to
improve human rights.
We will, of course, always need legislatures to improve
human rights and freedoms. At the same time we will always
need an entrenched Bill of Rights to protect us from legisla-
tures. They can give but they also can take away. The Consti-
tution cf Canada, 1981 will prevent basic rights from being
taken away without an amendment to the Constitution.
In conclusion, it seems likely that the provinces may behave
as mature adults instead of as selfish, unreasonable adoles-
cents, so that we can have a final amending formula two years
after patriation. At least it seems reasonable to suppose that
the provincial premiers, faced with a deadline, will cease their
shadow boxing and come up with a formula which will be
accepted by Parliament.
Q (I600)
As we consider amendments to the proposed charter, let us
remember that this is a great debate in which we are asked to
shape the aspirations of our country.
Let us, therefore, for Canada‘s sake, forswear partisan
politics and opposing merely for the sake of opposing.
Senator Flynn: Oh, oh!
Senator Bird: This is merely a time for us and for you on the
opposite side of the house, Senator Flynn, to think as states-
men, not merely as politicians?to think as statesmen, with
wisdom, vision and love of country.
Hon. Senators: Hear, hear!
Hon. Guy Charbonneau: Honourable senators, first of all, I
want to commend honourable senators for the quality of the
Constitution debate we have been hearing in recent weeks. It is
precisely with that approach in mind that I offer you today my
thoughts on the Constitution resolution before us. The pro-
posed constitutional package unilaterally achieves a number of
objectives on which most members of the Canadian federation
do not see eye to eye. In addition, it is an in~depth change in
the very nature of our federation and the fundamental values
of Canadian society.
For reasons which he deems justifiable, the Prime Minister
has opted not only for unilateral patriation of the Constitution
but also for entrenching a Charter of Rights and Freedoms
which jeopardizes the balance between the two traditional
levels of government. Moreover, the efforts made to entrench
collective rights will have serious consequences on individual
rights and on the future of our country.
First, I want to refer to property rights in Canadian society.
Is there any element that makes it more distinctive than
private ownership‘? Farms and family businesses are among
the basic elements upon which our different provinces were
founded. Where is the Canadian man or woman who today
still does not dream about owning his or her own home or
business’? And yet, the Charter of Rights and Freedoms does
not contain anything on that subject.
The right to own property is fundamental in a democracy. It
is also essential to a free-market system, in that it enables
individuals to improve their status to the best of their abilities,
unhindered by the dictates of the state which might impose
redistribution of wealth to meet its political or ideological
objectives. In other words, the shape of our society is deter-
mined by the degree of freedom our citizens have to choose a
way of life and to have access to opportunity in order to
improve or change it.
The absence of freedom of ownership in the Constitution
reflects a compromise in favour of state interventionists, and
for that reason it is a direct threat to the free-market system of
Canada. It is an anomaly for a nation such as ours not to have
as one of its fundamental freedoms the right to own and enjoy
property. Property is, after all, the reward of labour in a
free-enterprise society,
Property is also a protection for the individual citizen
against invasion of privacy, attempts on human dignity, as well
as on life itself. Although the laws of decency make a home
sacrosanct, whether owned or rented, it is undeniable that
there is more reluctance to invade the rightful property of an
individual because the law protects the owner in fact as well as
in spirit. Doing away with the right to property undermines
our Canadian way of life; it makes nationalization easier and
even acceptable; it makes the state the source of great finan-
cial power and of reward for the individual, therefore making
it the supreme power over the welfare and the values of
It is spurious to pretend that property ownership creates
class distinctions, This holds true only for nations where
equality of opportunity is non-existent and where the citizens
enjoy inherited property mainly, rather than acquired wealth.
A strong democracy such as Canada needs and thrives on
property ownership, It is only by protecting the right to
property and encouraging initiative and individual efforts and
creativity that we will develop our vast potential. If we channel
our wealth—~from energy, for example–towards acquiring
existing assets or centralizing economic power in the hands of
the state, we will be destroying the fabric of our free-enterprise
system and its free society.
The Charter of Rights and Freedoms therefore remains silent
about property rights, while the Bill of Rights of Mr. Diefen-
baker included the right of enjoyment of property. We have to

DEBATES March l8, 1981
believe that this is not simply an involuntary omission on the
part of the government, but rather a voluntary one.
Honourable senators, it is not unusual for property rights to
be recognized by the constitution of a country. The charters of
rights and freedoms of over 30 countries recognize them.
Among those, there is at least one whose social democrat spirit
is admired by the Prime Minister, namely West Germany.
Therefore it would not be an unusual or backward step to
recognize property rights in a democratic country such as
Canada, even if we aim towards a greater respect of the
community as a whole. The community would lose nothing in
the process, quite the opposite.
To those who in?uenced the government in deciding to
exclude property rights by suggesting that this would be an
interference in an area of provincial jurisdiction. I can give a
very simple answer. While a national constitution comes
within the federal jurisdiction and spheres of administration
are shared fairly and properly between the two levels of
government, the enjoyment of property can surely be con-
sidered a sacred right of the individual. Besides, my colleagues
on this side of the house have been saying, since the beginning
of our proceedings on this resolution, that no provision in the
Charter of Rights and Freedoms should apply to a province
against its will. lt would therefore be possible to protect
individual rights against an aggression by the state while
giving to the appropriate administrative level the responsibility
oflegislating practical rules.
I am convinced that the failure of the constitutional dia~
logue in 1980 was caused by a climate of cynicism and
bargaining created by the very procedure followed during
these negotiations.
I am also convinced that the premiers and the public have
rnade a lot of progress since last spring. The public is better
informed and much more committed, although tired of this
rather unhealthy concern for abstract concepts when it must
each day face some very real problems, such as in?ation,
unemployment and bankruptcy.
I am also convinced that the premiers, who have always
wanted to serve their own province—just as the federal govern»
ment tries to serve its own interests have nevertheless under»
stood that, once informed, the public would demand that they
behave responsibly towards the nation. The public will now
want us to concern ourselves with our first loyalty, which must
be to the country as a whole and the future of our children. I
believe that an informed public will be able to get rid of
objectives which are self~eentered and damaging for the
in this context of concern for our nation’s future, allow me,
honourable senators, to speak of equalization and regional
disparities. I will address this subject in the same vein as l did
property rights. The same principles of equality of opportunity
and rcspcct for the fundamental rights of our Canadian society
are involved. ‘
[Senator Charbonncaw]
Q (l6lU)
The principle of equalization appears altruistic on the sur-
face. When looked at from the point of view of a federation,
however, it appears economically doctrinaire. It is also difficult
to accept that the Constitution should be entrenching a proc-
ess—that of redistribution-~–before it addresses the methods
whereby regions can foster their economic independence.
What this has done is confirm the respective roles of donor and
beneficiary provinces, without establishing the right for a
province to move from being a recipient of equalization pay~
ments to equal partnership and contribution. Without settling
the ownership of offshore resources, fisheries and other distri-
bution-of-powers questions, the Constitution confirms the duty
of provinces to share and the inevitability of some provinces to
wait a long time for economic independence.
Without being dramatic, we could say that this confirmed
inequality serves the government well, in that it ensures it a
strong arbitrator‘s role and confirms its awesome spending
We would say that the same inequality in the matter of
resource ownership also serves the government‘s end. Although
there is danger in relinquishing powers to a number of entities
with their own regional aims and peculiarities, nevertheless, on
the basis of economic independence, resources should be a
provincial domain. Of course, if, for doctrinaire reasons, a
government is against economic independence for regions, it
will refuse to allocate to the regions the means whereby they
can be independent of fcderal handouts.
I choose to believe that if regions become wealthy, their
adherence to the national government will stem from a positive
and active motive rather than onc of passive dependence and
need. We have, in the case of the west today, a perfect
example of the weakness of the economic link for the purpose
of nation building. When a once poor and dependent province
such as Alberta or Newfoundland finds itself on the brink of
economic independence, it seems more likely that it will
rethink its relationship with the national government and the
rest of the country, than if the relationship were a purely
economic one of dependency.
If, on the contrary, a province joins others to form a nation
in order to give its people a common goal and heritage, as well
as protection against outside forces, the relationship should not
founder for sclfish or doctrinaire reasons. The referendum in
Quebec defeated the sovereignty-association option because
Quebcccrs, who had come lately to a middle-class and modern-
economic status, thought they would losc out economically if
their province scceded from the rest of Canada. Alberta and
Newfoundland, however, have all to gain economically, and
less to gain of a cultural nature, by the tie which binds them to
the rest of Canada.
We should stop thinking that we can cement Canada to»
gether through fear of economic hardship. We can, however,
cement the country through mutual respect and a desire to
form a country of thriving and strong regions. This would not
preclude self~help and mutual-help programs which would
spread Canada’s wealth around. But it is now impossible, short

March l8, 1981 SENATE
of imposition by force, to dictate to a region a dependent role
or a second-class role when it has the possibility of wealth and
equality. Moreover, efforts by the national government to
force a wealthy province to reduce its own wealth, trigger in
that province a wish to be all powerful in order to dictate to
itself the terms of sharing, or even to refuse any sharing. ln
other words, force brings out the worst in both protagonists.
Reality dictates the need for a negotiation of equals, in order
to get the best deal for Canada and the provinces.
So, in closing, I come back to what I said at the outset,
namely, that the protection of the rights of the community
must not imply the denial of individual or provincial rights. A
strong and proud nation such as ours must not fear the
fulfilment of the individual or the regions. As for us, honour-
able senators, I can only add that our duty lies not only in
representing the provinces—or the various regions of the coun-
try, if you will~but in protecting them against the erosion of
their rights. If we fail to play that fundamental role, then there
is no reason for us to exist. Our presence in government as
legislators in this upper house would no longer bejustified.
If the Senate forgets its fundamental role as protector of the
provinces, it should cease to exist. We are not only the
appointed representatives of the provinces, we are their protec-
tor. I believe that it is our duty, as senators, to oppose this
constitutional package until it reflects the fundamental rights
of all Canadians and respects the equality of all the partners in
our Confederation.
On motion of Senator Bosa, debate adjourned.

The Senate adjourned during pleasure.

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