Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Debate Continued” (2 March 1981)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 1891-1905.
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March 2, l98l SENATE DEBATES 1891
MOTION FOR AN ADDRESS TO HER MAJESTY THE QUEEN
The Senate resumed from Thursday, February 26, the
debate on the motion of Senator Perrault that an Address be
presented to Her Majesty the Queen respecting the Constitu-
tion of Canada.
Hon. John M. Macdonald: Honourable senators, I wish to
join with all the previous speakers in paying tribute to the
members of the special joint committee on their examination
of the proposed resolution we are now debating. There are 57
issues on the minutes of that committee, so it is obvious that a
great deal of time and effort must have been expended by the
Those minutes constitute some important reference work
and are of great interest. I confess that I have not read all of
them carefully, but I did carefully read a number which I
considered to be of more than ordinary importance.
Honourable senators, while studying the proposed resolu-
tion, my first reaction was pretty much the same as that
expressed so well by Senator Fournier. Like him, I feel that
there are more important and more pressing problems in
Canada demanding attention than the patriation of the C0nSli~
tution. I certainly do not agree with those who feel that this is
such an important piece of legislation that it demands priority.
In my mind, while it is desirable to have the Constitution here
with the addition of an amending formula, I believe there are
other and more pressing matters which require urgent
I see a tremendous necessity for action by the government to
deal with inflation and the curse of unemployment. Apparent-
ly, the government sees no urgency in these matters. Indeed, it
appears that the government has no real appreciation of the
need to deal with the twin evils of inflation and unemployment
or, if it does recognize the problems, it has no solutions to
offer. All one hears about is the Constitution.
Like Senator Fournier, I think the further one gets from
Ottawa, the less interest one finds in the debate on the
Constitution. This is understandable since the ordinary
Canadian has more immediate problems which require his or
her attention. They are concerned about the ever-rising cost of
living. There is no interest shown in the patriation of the
Constitution by a person trying to live on the old age pension
and its supplement. There is no interest shown in the patriation
of the Constitution by persons trying to get along on welfare,
or by those earning just enough to be over the poverty line.
These are people who are finding it more and more difficult
just to live, to get enough to eat, to heat their homes and to
Can one expect much interest in the Constitution from a
person who, on January 23 of this year, had to pay 99.5 cents
for a gallon of domestic heating oil when, on January 3, I980,
he had to pay only 70.9 cents for that gallon of oil. One cannot
expect a person who uses coal as domestic fuel to have much
interest in the Constitution when he now pays $75 a ton for
Coal and remembers that in I980 he paid $65–—and that is the
cost at the coal yard.
One cannot expect too much interest to be shown in the
Constitution by the unemployed-especially by the unem-
ployed whose unemployment insurance has run out or is about
to run out. I notice that new claims for unemployment insur-
anee in Canada rose by 7.4 per cent to a total of 303,000 in
December, from 282,000 in November.
Practically every day we read of renegotiated residential
mortgage interest rates rising to astronomical heights. I do not
believe it is much consolation to all those people to know that
the Constitution is to be brought to Canada and stored in some
vault in Ottawa where there will be no danger of its being lost
Honourable senators, I believe it is time–indeed, it is more
than time-~-for the government to put its priorities in order
and to put first things first. I further believe the first priori-
ty- ~-the first problem which demands attention by the govern-
ment- -is the deplorable statc of our economy.
As regards the resolution before us, I again state my belief
that all the United Kingdom Parliament should be asked to do
is to pass the necessary legislation to make the B.N./\. Act a
statute of Canada, with only one amendment. that being an
amending formula. I firmly believe that any other amend-
ments should be made in Canada. I firmly believe that a
Canadian Charter of Rights, if desirable, should be made in
Canada for Canadians by Canadians, and not by Englishmen
DEBATES March 2, l98l
in London. Personally, I find it humiliating that the Govern-
ment of Canada should have to go to the U.K. Parliament to
obtain a Charter of Rights and Freedoms for Canadians.
Hon. Senators: Hear, hear.
Senator Macdonald: It just does not make good sense to me.
I thought we had long since ceased to have colonial status and
had become an independent nation. I was strengthened in that
belief by the fact that we have direct communication with the
monarch, that we negotiate treaties with foreign powers, and,
yes, that we even declared war as an independent nation. You
may remember that, to emphasize our independence, Canada
declared war on Germany one week after Great Britain had
Now we have a government that wants to turn back the
clock; that wants to reverse the course of our history and
tradition, and to act as if there had been no constitutional
development since I867. To me, such policy makes no sense
and, certainly, it contains no logic.
On the one hand, we have the determination to have the
U.K. Parliament pass a Charter of Rights for Canadians,
threatening that Parliament with some kind of serious conse-
quences if it does not do so. In other words our government is
asking the Parliament of the United Kingdom to interfere in a
completely Canadian mattcr——to pass legislation which could
have an effect on every Canadian. At the same time, we are
saying that the U.K. Parliament must not interfere in what is a
domestic, or Canadian, matter.
I have followed with interest the various speeches of senators
and others learned in the law who have debated the matter of
whether or not the federal government can proceed to have
substantial changes made in our Constitution and the proposed
Charter of Rights without the consent of the provinces, or at
least a majority of them. Can the federal Parliament act in a
unilateral manner to have the Parliament of the United King-
dom pass legislation when the majority of the provinces are
opposed to such a course? This question is now before the
courts and, I suppose, in due course, it will be before the
Supreme Court of Canada for final decision. Personally, I do
not like this approach.
Undoubtedly, there has been a continuous development in
our constitutional history over the years, and especially over
the past twenty or more years. Some sections of the l3.N./\.
Act have certainly become obsolete and a new relationship has
developed between the federal and provincial governments. It
is this development which is the cause, I think, of the major
disagreements that now exist between the two levels of
There is nothing to gain from mutual recriminations. We
must recognize that a new relationship has developed but that
it is one which has not yet been defined, so there is still a good
deal of room for disagreement. I think the present negotia-
tions-—if that is the proper term—betwcen the federal and
provincial governments, in trying to define their respective
areas of authority, can be compared to negotiations between
employers and employees over a labour agreement. Difficulties
will and must, in time, be overcome and some kind of an
agreement will eventually come about.
We cannot look to the past to find a solution to the problem
of the relationship between the federal and provincial govern-
mcnts. What was suitable in 1867 is not suitable today. A new
relationship, which would define the authority of each level of
government as it has developed, must be accomplished by the
elected representatives in the federal and provincial govern-
ments. This will be difficult since negotiations have been going
on for some time without being wholly successful. Yet, as in
labour disputes, I think they should continue and, in time, with
goodwill and a spirit of compromise, some mutually satisfacto-
ry arrangement will be found.
I do believe that what is required is a political, and not a
legal, solution to the present dispute between the two levels of
government. In a legal decision, someone will win and someone
will lose, and this docs not make for a happy future relation-
Ship. Not only that, but in a legal dispute concerning the
relationship between governments, I think there is a danger
that our judicial system might be adversely affected. We are
fortunate to have a fine judicial system and we do not want
our judges to be placed in a position where people may feel one
judge favours the federal authority and another the provincial
Indeed, I have heard it predicted that if a reference were
made to our Supreme Court certain judges would find in
favour of the federal and others in favour of the provincial
authority. It was not meant that they would consciously
behave in an injudicial manner, but because of their legal and
social background. So I feel that the federal government made
a wrong decision when it decided to amend the Constitution on
its own, and I hope that in time this can be corrected.
Honourable senators, I know it is not practical to discuss the
various clauses contained in Schedule B of the Constitution
Act. That schedule contains 65 clauses. However, I want to
mention two. On January 2l last it was moved in committee
that clause I of the proposed Constitution be amended to
include a statement that the Canadian nation is founded upon
principles that acknowledge the supremacy of God, the dignity
and worth of the human person, and the position of the family
in a society of free individuals and free institutions. It went on
to affirm that individuals and institutions remain free only
when freedom is founded upon respect for moral and physical
values and the role of law.
Honourable senators, I was astounded to read that this
amendment was not acceptable to the government. It appeared
to me that this was an amendment which would have had the
support of the vast majority of the Canadian people, so I read
with interest the reasons given for its rejection. So far as I
could see, there were three, two of which were trivial and of no
substance. The main objection raised was that since seine
Canadians do not believe in God, it would be unfair to them to
have that affirmation in thc charter, and it would amount to
discrimination against them, the implication being, of course,
that we must respect the opinion of the minority.
March 2, l98l SENATE
Honourable senators, I am all for respecting the rights of
minorities, but we must not forget that the majority also have
rights, and their rights deserve just as much respect as, if not
more respect than, those of any minority group. If that argu-
ment were carried to its logical conclusion, there would be very
few clauses in the charter which did not have a minority
opinion in opposition, Indeed, there would be no charter
attached to the resolution.
Honourable senators, I believe it was most unfortunate that
no reference is made in the charter to the effect that Canadi-
ans, as a nation, acknowledge the supremacy of God. In
speaking on the amendment, one member said:
I believe this country of ours has been founded by people,
who on the whole, believed in God and I believe that
because of that common belief held by so many, many of
the principles which made it possible for us to have a free
society have basically come because of the spiritual values
held by those generations of people who went before us.
I also quote a sentence from another speaker:
Let us recognize the historic fact of Canada, and the
historic fact of Canada is that this was a nation founded
under God–this was a nation that respected the dignity
and the worth of the human being.
Honourable senators, anyone with even the slightest knowl-
cdge of history must bc aware of the historical fact that the
pioneers who came to this country believed in God and
acknowledged the supremacy of God. Practically the first
thing those pioneers did was to build a church. So I was
disappointed that the committee did not accept that amend-
ment which, I think, would be more than acceptable to the vast
majority of the Canadian people.
The other clause I wish to discuss for a few moments is
clause 15, subclause 1, which reads:
Every individual is equal before and under the law and
has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
On the face of it, that clause would not appear to be
objectionable. But, honourable senators, strong objections have
been taken to it, and I will tell you why. I understand that the
original draft of that clause began as follows: “Everyone is
equal, . . ln committee the Minister of Justice proposed the
amendment which changed the word “everyone” to “every
individual”, and it is this change which is strongly opposed by
the various Right to Life groups. I understand that the change
of wording was made at the request of the Advisory Council on
the Status of Women. The reason given for that request was
the fear that the word “everyone” might be interpreted to
include children before as well as after birth, and the council
wanted to avoid that. Changing the wording led the pro-life
groups to protest. Such groups feel, and I think rightly, that
the amended wording is a victory for those who advocate
abortion on demand.
I draw to your attention a letter dated February ll. l98l,
sent to all members of Parliament by the Campaign Life
group. This letter is somewhat detailed, and honourable sena-
tors may have read it. However, I would like to quote two
paragraphs from it which show, in no uncertain terms, the
reasons for the opposition of the pro-life groups. They read as
Our objection lies with S.l5 of the Charter in which
Mr. Chretien ignored the recommendations of the pro-life
groups in regard to protection of the life of the unborn
child and instead accepted the recommendations of the
Advisory Council on the Status of Women. The purpose
of this latter council’s recommendation according to CP
report, dated November l5, 1980, was to prevent “fetuses
from having protection from the Charter,“ and to have
entrenched into the Constitution total and complete
“equal rights” for women.
S.l5 of the Charter will have a direct effect on the
abortion issue in that it will be used by the pro-abortion-
ists to bring about an enormously increased number of
abortion facilities and abortion clinics (Statistics Canada
reports that in I979 alone 65,043 abortions were per-
formed in Canada). The argument will be used that
women in localities where abortions are available are
allegedly being denied full “benefit of the (abortion law)“
and therefore are being discriminated against contrary to
S.lS. This will either, (l) force the local hospitals to
provide abortion facilities, or (2) force the Minister of
Health for that province to set up abortion clinics which
would be separate from and not responsible to any hospi-
tal. (Something the pro-abortionists have been pushing
in my opinion, the decision of the government not only to
exclude the unborn from the protection of the charter but also
its determination to entrench this exclusion in the charter is a
deplorable and regrettable action.
Honourable senators, feeling as I do about the resolution,
you will not be surprised to learn I do not propose to vote for
Some Hon. Senators: Hear, hear.
Hon. Andrew Thompson: Honourable senators, may I begin
by congratulating Senator Macdonald on his living up to his
usual standard of providing a thoughtful and stimulating
contribution to this debate. Indeed, honourable senators, I
have listened to all the speeches that have been made, and
have read them all as well, and I believe that they are a great
credit to the Senate and have added to the thought which we
all have to give to this momentous and historic issue.
I would also like to offer my sincere congratulations to all of
those who served with such dedication, tenacity and stamina
on the joint committee, It sat for 300 hours, held 106 meetings
and heard 314 witnesses, I felt that the joint chairmen particu-
larly characterized the vitality and distinctiveness of Canada:
there was the rugged individuality and affable informality of
DEBATES March 2, 1981
Senator Hays; and Mr. Joyal displayed all the urbane chivalry
and perspicacity of his people.
I have already commended the senators who have already
spoken. The quality of their speeches indicated the knowledge
and experience which they bring to this critical and fundamen-
tal issue. I do not agree with all the arguments, but I must
acknowledge their deep concern, their conviction and commit-
ment to produce an even better and united Canada.
The committee has produced a substantial document which
can result in significant ramifications on the fabric of our
federal system and affect imposingly the lives of every Canadi-
an in every hamlet and village from coast to coast.
What the Address to Her Majesty will accomplish is
momentous and manifold. It would finally and irrevocably
patriate our Constitution with a prescription for amending it to
be decided in Canada, and it will also include the entrench-
ment ofa Charter of Rights and language rights.
Let me quote Senator Connolly who, in the Senate in March
l97l, defined the Constitution as follows:
A constitution is more than just a statute of the legisla-
ture; it is the supreme law of the state. It is the basic
premise upon which the political, the economic, the social
and the juridical structure of the state is founded. To it all
other law must conform, and to it all legislatures arc
subordinate. The constitution» –
Senator Connolly said.
——is the fundamental consensus –
I repeat that.
—the fundamental consensus of a people for the life of a
nation, the fundamental consensus of a nation for the lifc
of a people.
I remember very clearly that speech, and as I listened to it I
could not help thinking that over half a century before, in my
former homeland‘–in the homeland of Senator Connolly‘s
ancest0rs—there had not been that fundamental and essential
consensus on the acceptance of one clause of the new articles
of agreement for my homeland-—their Constitution—and that
lack of consensus resulted in violent confrontation, in a bittcr,
brutal civil war whose scars still bleed in the streets of the city
where I was born. I thank God that in Canada our deepest
national tradition and trait is exemplified in patience, toler-
ance and compromise when we are making amendments to our
Some Hon. Senators: Hear, hear.
Senator Thompson: In my less elegant and more homespun
language, the Constitution is the rules of the game for each
team and for each individual player.
I am proud to belong to a political party, the Liberal Party,
but partisan play stops, I suggest, when as Canadians»-—not as
Liberals, Conservatives, Social Crediters or New Democrats–~
we sit down to discuss the rules by which our vast and varied
country will govern itself. I respectfully suggest to those who
have brought up the flag debate that it is our national symbol.
It was certainly one issue that touched deeply the hearts and
emotions of our people, but the choice of our national symbol
did not, as this resolution will, significantly change the funda~
mental rules which govern us all.
Indeed, I recall the process that took place. Senator Olson
described one of the approaches in arriving at a decision on the
national flag and mentioned that there were over 42,000
written submissions and over 2,695 designs. I thought that was
tremcndous-—-citizenship participation at its best.
Citizenship participation was a rallying call for us Liberals
not too long ago, and I hope that we shall look at the ?ag
process in thc course of this debate, not in terms of its being a
symbol but rather as a process from which there evolved our
national symbol– watching carefully, getting participation
from across Canada, and then following strictly heraldic tradi-
tions in deciding on a design.
This Constitution debate is an historic occasion, which
demands of us to speak out from our own deeply held individu-
al convictions, and not to be silenced by any narrow partisan
loyalties. I wish to say that no one has made any serious
attempt to try to curb my expressing my own convictions with
regard to this resolution. I have worried over, have been
troubled about, and have studied this speech that I am making
more than I have done in connection with any speech I have
made in thc past. I am not a sophisticated or learned constitu-
tional lawycr as are some of my honourable colleagues»-
Senator Marshall: But you are pretty good.
Senator Thompson: ——and my questions are blunt and
simple. Putting it bluntly and simply, my question is: Are we
keepinglour word; are we breaking the rules by which we
agreed to govern ourselves in the federation? No matter how
noble and worthy the purpose of this resolution—-and I believe
that what we are trying to achieve is worthy—–the end does not
justify the means.
Some Hon. Senators: Hear, hear.
Senator Thompson: I know that no senator will argue.
because the aims arc so noble and worthy, “Let us ignore and
abuse the means.”
Honourable senators, I recall the time when I got my first
job in Canada. I was in my early teens. It was during the first
years of the Second World War, and Toronto University had
permitted me leave of three weeks to help with the prairie
harvest. I was a skinny, small boy compared with the older
students with whom I went out to Lucky Lake, Saskatche-
wan–which I know an honourable senator in this chamber
will recognize well.
I recall that I stood in the centre of the square of that little
town, and I was the last to be chosen. I felt very awkward
about that, standing thcrc and hoping that someone would
choose me to help them with the harvest. Then a Mr. MacGre-
gor chose me.
When the harvest was completed and I was watering his
horses out on the prairie, looking over that enormous expanse
and watching the sun slowly setting, Mr. MacGrcgor came
over to pay me. He was a homesteader and did not have very
March 2, I981 SENATE
much money. I felt very guilty because I was scrawny and
small, and not that effective. I said to Mr. MacGrcgor, “I was
a poor worker; you do not need to pay me these wages.” Mr.
MacGregor was a blunt man. He said, “You were indeed.“
Then he added with a note of pride and determination in his
voice, “Remember this, laddie, you‘rc in Canada, and a man‘s
word is his bond, poor bargain or nay.“
Honourable senators, over the past weeks I have attempted
to find out particularly what is the Canadian governments
word on this amending procedure, poor bargain or nay.
We do not have a large staff, and I commend my secretary,
whom I share with Senator Steuart, for the work she has done,
and also the Library research staff and, indeed, some honour-
able senators who have helped me obtain some background
material on this subject. I have read the Kershaw report and
all the different briefs that were submitted, and at times I have
read all through the night, to the concern of my wife who
thinks that I may be getting mentally disturbed over this issue.
Perhaps, with all my homework, I should have followed the
advice of Judge Begbie in the last century who said, “The
statute books are exceedingly muddled. I seldom look at
Honourable senators, my deep concern is not with the
substance of the resolution, but rather with the procedure
being followed. I have stated that concern to the government
through the traditional channels of the caucus, the Senate
caucus, the National Liberal caucus, and now I am stating it
on the floor ofthe house.
I want to thank Senator Austin, in particular, and Senator
Lamontagne, because both of them focused, to a certain extent
in their speeches, on the unilateral procedure being adopted by
the federal government, and they realize that this is a matter
that worries me, and worries many Canadians.
Senator Lamontagne, in his usual masterful, erudite
manner, provided a powerful, persuasive and unique argument
to justify the unilateral procedure, namely, that the moans
indeed do justify the end. Senator Lamontagne argued:
In other words, there is no legal requirement and no
binding convention that prevents the Canadian Parlia-
ment from adopting, without the consent of the provinces,
a joint resolution asking the United Kingdom Parliament
to amend the B.N.A. Act, even with respect to matters
affecting federal-provincial relationships or provincial
In other words, a majority of both houses of Parliament can
have unfettered power over the provinces.
Senator Lamontagne, in order to substantiate this viewpoint,
quoted a very impressive list of academics, such as Professor
Kennedy and Norman Rogers in I935, both talking about the
lack ofa strict legal requirement.
Senator Lamontagne also quoted Professor Gil Rémillard of
Laval University, and went on further to quote Professor
Scott, who also said that there is no legal necessity for
consulting the provinces. He then reached back to Dr. O. D.
Skelton, in I935, who said:
All that was sought to do in 1931 was to ensure that for
the time being the status quo was not altered by the
Statute of Westminster as regards constitutional amend-
Senator Lamontagne argued what was to mc an innovative
approach to this whole concept of federalism. He suggested
that despite the fact that there are six provinces before the
courts now, in the process of trying to stop the federal govern-
ment from proceeding with this resolution, the Canadian
Parliament must no longer retain this unlimited power to
amend the Constitution by itself, and that if we were to follow
the method proposed by the federal government, as set out in
the resolution, we would be giving a guarantee to the provinces
of their rights.
Mr. Chrétien, before the special joint committee, also
expressed this view, talking of the British government and
saying that the B.N.A. Act is British law, and telling us that
we have to bring it back because, as hc said:
It is, after all, a British law. The British Parliament could,
probably, if they wanted, do almost anything with our
Indeed, if we were to follow to a logical conclusion the strict
legal argument of Senator Lamontagne and Mr. Chrétien, we
would have to assume, in fact, that we never had a Canadian
federation; yet, of course, we know we did, and I know that
Senator Lamontagne would agree with me. The preamble of
the B.N.A. Act of 1867 states that Canada is a federation, and
not a unitary state. Let me quote:
Whereas the Provinces of Canada, Nova Scotia, and
New Brunswick have expressed their Desire to be federal-
ly united into One Dominion under the Crown—
Viscount Haldane authoritatively stated, referring to the back-
ground ofthe B.N.A. Act:
The scheme of the Act passed in 1867 was thus not to
weld the provinces into one, nor to subordinate provincial
governments to a central authority, but to establish a
central government in which these provinces should be
represented, entrusted with exclusive authority only in
affairs in which they had a common interest.
If we were to follow the logic of Senator Lamontagnc and
the Honourable Jean Chrétien, we would be entitled to ask
why, in the light of the fact that since I927 there have been
ten first ministers’ conferences on the amendment of the
Constitution, the federal government, in the past, has not used
this legal power that it is suggested it has? I would like to
answer that by a quotation from someone who, I know, all
Liberals revere, and who is revered, I am sure, by all of us. I
am referring, of course, to the Right Honourable Louis St.
Laurent. Senator Macquarrie may t‘€C0gnl7.e this as a textbook
by one of his heroes, MaeGregor Dawson, who also taught me.
At page 133 of the fourth edition of this text, the author says:
The legal and conventional position as it still exists was
accurately stated by Mr. St. Laurent, the Minister of
I896 SENATE DEBATES March 2, I981
Justice, when the proposed 1946 amendment was before
the House. In reply to a query whether Section I33
(regarding the use of the English or French languages in
Canada and Quebec) could be altered without provincial
consent, he said:
Legally I say it can. The situation appears to me to
be this. There are persons and nations who reach a high
estate in the affairs of men, and the high estate they
reach imposes upon them high obligations… I feel —- —
and I believe my fellow Canadians of my race and
religion can feel-~that a better guarantee than any-
thing that might be found in Section I33 is to be found
in that respect, for those who have bccn formed under
the principles of British freedom and British fair play,
to protect what are our essential rights.
It is not the manner of those who have themselves
had, and whose ancestors have had, the formation that
comes from that long history which has brought us to
this point in the civilization of mankind, to do things
which the conscience of humanity at large would regard
as dishonourable; and the conscience of humanity at
large would frown upon an assemblage in this house
that attempted to take from me and from those of my
race the right to speak the language I learned in my
infancy as one of the official languages in which the
deliberations of this house may be carried on. So it is of
everything else that is not within Section 92. If it is fair,
if it is just, if it is proper according to the standards of
human decency, it will be done; if it is unfair, if it is
unjust, if it is improper, all mcmbcrs of this house will
say, “It is not our manner to do such things.”
Obviously, the standards which the Right Honourable Louis
St. Laurent used are not those of a narrow, legalistic defini-
tion, which is the one arrived at by Senator Lamontagne in his
use of the quotations from his esteemed academic authorities.
The question that the Right Honourable Louis St. Laurent
was asking was: “ls it fair, is it just, is it proper, according to
the standards of human decency?“
Honourable senators, I am concerned that this resolution to
patriate and amend our Constitution should have just those
qualities which Mr. St. Laurent emphasized. My concern is
not because of any particular sympathy towards some of thc
provincial premiers’ viewpoints as expressed at the recent
constitutional conference. Frankly, I was appalled at the paro-
chial character of the views expressed by some of them, in
spite of the fact that, like Senator Austin, I do recognize that
they should and do represent provincial interests within a
federal Canada, My concern is most assuredly not born of my
belief in more decentralization. Our country, in my view, is
already dangerously decentralized. My concern is rather with
regard to the very basic issue, namely, the sanctity of our
Let me quote the Right Honourable Lester B. Pearson in
The Amendment of the Constitution of Canada (I965) in
which, at page vii, he says:
In any federation, the two most critical questions are the
distribution of powers between the two levels of govern-
ment and the manner in which the Constitution can be
changed. A federation is necessarily a delicate balance
between con?icting 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.
Some of you may recall the words of Sir Ivor Jennings in
(‘onsliluliorz Laws oflhe Commonwealth, (I957):
The essence of federalism is a division of powers between
a central and local legislature that the central legislature
has no power to alter. If this test is applied, the Constitu-
tion of Canada is certainly federal,
Why am I concerned, honourable senators? It may be
because of my own background; where I have come from. I
have seen a homeland where there was not a consensus of the
people, and I have seen what resulted when a constitution was
brought back from England to my former country.
Dr. Edward McWhinney, who has studied and written on
the general principles of constitutionalism in the English-
speaking world, and who appeared before the joint committee,
emphasized that constitution-making and its subsequent oper-
ation dcmanded a substantial consensus of the people. Profes-
sor Lederman wrote in his article “Changing Canada’s
The basic provisions of a country‘s Constitution are first
principles that develop out of thc whole course of its
history about the right way to do things.
I would like to say that I am not attempting to expound the
“compact theory” because I agree with MacGregor Dawson,
my former professor, when he said that the compact theory is
constructed on sheer invention, without any legal or historical
foundation, What I am discussing is the basic principle of
federalism rather than any contractual arrangement between
various governments which wc are discussing. It is a matter
not of a “federal compact”, but of a federal principle. There-
fore, when we look at the procedure to see whether the federal
principle is being honoured, I know that Senator Lamontagne,
in his most able and scholarly speech, argued that:
In no case has the U.K. Parliament refused an amend-
ment because the conscnt of the provinces had not been
obtained or accepted an amendment upon a provincial
I accept his statement, but I also checked the history of
proposed amendments to the Constitution which would affect
the legislative powers of the provinces. I found that no amend-
ment which affectcd the legislative sovereignty of the prov-
inces was sought without the consent of all the provinces.
Some Hon. Senators: Hear, hear.
Senator Thompson: Indeed-»–and I wish Senator Lamon-
tagne or others would inform mo if I am wrong~-there were
only two such amendments in which there was not unanimous
consent. There was the I930 amendment which contained the
natural resources agreements between the federal government
March 2, l98l SENATE
and the Governments of Manitoba, British Columbia, Alberta
and Saskatchewan. Those were the four provinces directly
affected, and all agreed to the amendment. Senator Dandu-
rand, on behalf of the federal government, explained that
consent in principle had been given by all the provinces at a
conference of federal and provincial governments in I927.
The other amendment was that of I907, which assigned
higher federal subsidies to the provinces from those established
in I867. It was approved by eight of the provinces, but not
consented to by British Columbia, whose premier, Premier
McBride, according to Dr. Gcrin Lajoie, was motivated by “a
claim for better claims.“ Because of Senator Lamontagne’s
brilliant and erudite speech, which kept me reading all through
the weekend, I know that he stated that in I978, the Honour-
able Ron Basford and the Honourable Marc Lalonde had
reviewed past practices and they had stated that, though the
provinces’ consent was sought in I940, I951 and I964, consti-
tutionally this was not obligatory. Well, I would like to read
the white paper entitled, “The Amendment of the Constitution
of Canada, I965,” detailing the approach taken by the Gov-
ernment of Canada to constitutional amendment, “which
finally produced a unanimously acceptable solution,“ the Ful-
ton-Favreau formula, Let me quote from pages 45, 46 and 47:
,..The very nature of the federation requires that the
rights and powers of its constituent units be protected. . .
It may be argued that a requirement of unanimity is too
in?exible to be applied to the distribution of legislative
powers, but this distribution is basic to the Canadian
federation. In fact, in the 97 years that have elapsed since
Confederation, no amendment has altered the powers of
provincial legislatures under section 92 of the British
North America Act without the consent of all the
This clearly re?ects a basic and historic fact in Canadi-
an constitutional affairs. The Constitution cannot be
changed in a way that might deprive provinces of their
legislative powers unless they consent. The law has not
said so, but the facts of national life have imposed the
unanimity requirement, and experience since Confedera-
tion has established it as a convention that 21 government
or Parliament would disregard at its peril.
Perhaps, honourable senators, to indicate that there are
others who have studied this question, I can refer to one who, I
think we all recognize, has spent a great deal of his life
considering constitutional affairs, the Right Honourable Pierre
Elliott Trudeau. I quote a letter that he sent to the premiers,
dated March 3t, I976, in which he wrote:
In practice, of course, the federal government has in the
past sought the unanimous consent of the provinces before
seeking amendments that have affected the distribution of
Honourable senators, what has been the stated commitment
of our Prime Minister as regards the provinces’ consent to
amendments‘? As I read out the following statements, honour-
able senators, I would like you to think in my simple terms, if
you could, of that proud, independent old Scottish farmer, Mr,
MacGregor. Let his simple words ring in your ears: “Remem-
ber, laddie, in Canada a man’s word is his bond, poor bargain
or nay.” I believe that his chiselled, proud face represents the
integrity of the people of Canada.
Let me quote Mr. Trudeau‘s words uttered at the federal-
provincial constitutional conference on February 6, I979—~not
very long ago. He was answering questions of the first minis-
ters on the continuing process of constitutional reform, and
So, will there be unilateral action by the federal govern-
ment regardless of the result of this conference? Our
priority would be to seek agreement and move in areas of
federal and provincial concern where we could move
together but if we are not successful I repeat we preserve
our constitutional right to change our constitution, the
federal one, just as the provinces keep their right to
change their provincial constitutions and I do not think
either the provinces or the federal government would want
to give up that right… Our priority is to change this
constitution collectively, federal and provincial… We
will adopt a Charter of Human Rights, we will constitu-
tionalize it. We cannot force the provinces to do it. We
are trying to convince them to do it… I can answer
unequivocally that the federal government intends to
entrench a charter of basic human rights and of linguistic
rights. Now, this will bind the federal government; it
won‘t bind the provinces unless they want to bind them-
selves but here again we can under our constitution bind
ourselves just as the provinces, many of you, have adopted
Charters of Human Rights. Well, we have adopted one
and we want to constitutionalize it.
On June I2, I978, again the federal government had tabled
in the House of Commons a government document entitled, A
Timefor Action: Toward the Renewal oflhe Canadian Feder-
ation. I am sure many of us have read that document. In it
were set forth the proposals for renewal of the Canadian
federation. Let me read to you from page 19 of chapter 5 of
that document, in which the government gives us “the word”:
The government has resolved to provide Canada with a
new Constitution by the end of l98l It urges the
provinces to eo-operate with it in order to renew the
constitutional provisions which cannot be amended with-
out their cooperation.
On March 31, I976, the Prime Minister wrote to the
premiers outlining alternative approaches towards patriating
the Constitution with an amending formula. In his second
alternative he proposed to detail a permanent and ?exible
amending procedure in, as he put it, “our Joint Address and
having it included in the British legislation as an enabling
provision that would come into effect when and only when it
had received the formal approval of the legislatures of all the
provinces . . .“
I898 SENATE DEBATES March 2, I981
In his letter of March 31, I976, he outlined a third alterna-
tive which follows closely the procedure adopted by this
A third and more extensive possibility still, would be to
include, in the “patriation” action, the entirety of the
“Draft Proclamation” I am enclosing. In other words the
British Parliament, in terminating its capacity to legislate
for Canada, would provide that all of the substance of
Parts I to Vl would come into effect in Canada and would
have full legal force when, and only when, the entirety of
those Parts had been approved by the legislatures of all
the provinces. At that point, we would have, not only
“patriation“ and the amending procedure, but also the
other provisions that have developed out of the discussions
thus far. Here again, of course, until all the Provinces had
approved the entire Draft Proclamation, any constitution-
al change which did not come under Section 9l(l) or
Section 92(1) would be subject to unanimous consent.
Let us revert, honourable senators, to the Constitutional
Conference of June I6, 1971, in the deliberations of which, I
think we would all agree from both sides of the house, the
Right Honourable Pierre Elliott Trudeau played such an
outstanding role. As all of you know, the Victoria Charter
contained, among other things, not only a formula for amend-
ing the Constitution but also provisions relating to the
entrenchment of fundamental rights and language rights.
Those rights were, indeed, similar in many ways to the provi-
sions contained in the present resolution, although what is
contained in the present resolution is, in my opinion, an
improvement over the rights that were envisioned before.
With his superb talents, Mr. Trudeau almost had in his
grasp the Holy Grail of amending procedure as well as these
other provisions. Unfortunately, on June 23, l97l, the Quebec
government could not accept the charter because of the word-
ing of certain clauses dealing with income security. Because of
Quebec’s dissenting voice, therefore, the new Premier of Sas-
katchewan-—where they had just held a provincial election»-»~
did not proceed to have the charter accepted in his legislature.
After all the other provincial governments had announced that
the charter had been accepted, the Saskatchewan legislature
did not go ahead.
I remember those days well, honourable senators, because
we had had a good debate in the Ontario legislature, and I also
had the privilege of debating the matter on national television
with that outstanding, stimulating Canadian, whom we all
knew and admired, irrespective of the side of the house we
were on, Daniel Johnson.
ln l97l there was no question whatsoever that the federal
government would proceed to have the charter enacted, despite
the fact that only one province had dissented. Indeed, let me
quote the Right Honourable Prime Minister Trudeau with
respect to that:
Despite the failure to secure the unanimous agreement
that had been hoped for, the Charter… represents the
most significant and comprehensive development in the
search for a basis of constitutional revision since
If I may interrupt the quotation, I should like to say I agree
with him. Now I continue:
It is hoped that it may still provide the foundation for
agreement in order that the Constitution may be “repa-
triated” and made amendable entirely in Canada.
Well, I have given you some of the words of the Right
Honourable Prime Minister Trudeau concerning this amend-
ing procedure. Let me go back to another prime minister who,
I am sure, is endeared in the hearts of everyone, but perhaps
particularly in the hearts of Liberals. I should like to quote
from The Pearson Years in The Liberal Party of Canada, its
Philosophy and History. You all recall the concept of co-oper-
ative federalism. That is not a term you hear much these days,
but for many of us it was a great rallying call. Listen to this
quotation from that work:
In order to counter growing dissension and to strengthen
national unity, the Liberal government formulated the
policy of co-operative federalism. This was defined as
“co-operation between Ottawa and the provinces at three
lcvels, pre-consultation in the formulation of federal poli-
cies, collaboration in the drafting of these policies, and
co-ordination in their implementation.“
Before I continue, may I refer to Senator Lamontagne‘s
comments on the Fulton-Favreau “fourth principle.“ Senator
Lamontagne suggested that the document does not say that
the fourth principle has gained recognition, but is only gaining
“increasing“ recognition and acceptance. He referred to the
nature of degree of participation in the amending formula not
lending itself to easy definition. Well, as long ago as I956, in
replying to questions in the House of Commons, the Right
Honourable Lester B. Pearson, on January 20 of that year,
responded to a question by the Right Honourable John G.
Diefenbaker concerning the Fulton-Favreau formula.
Mr. Pearson said:
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.
Let us refresh our minds on the white paper published in
I965 by the Honourable Guy Favreau, the then Minister of
Justice. It included four general principles. The fourth princi-
That the Canadian Parliamcnt will not request an
amendment directly affecting federal-provincial relation-
ships without prior consultation and agreement with the
provinces. This principle did not emerge as early as others
but since 1907, and particularly since 1930, has gained
increasing recognition and acceptance. The nature and
the degree of provincial participation in the amending
March 2, I981 SENATE
process, however, have not lent themselves to easy
These were the words to which Senator Lamontagnc
referred, but I would suggest, honourable senators, that the
Right Honourable Lester B. Pearson seemed to have no dif-
ficulty, in his answer to the Right Honourable John G. Diefen-
baker, in understanding the implications of that fourth princi-
plc. The Right Honourable Louis St. Laurent, in his opening
statement at the constitutional conference of federal and pro-
vincial governments of 1950 to define an amending formula,
—it is, and has always been, the view of the present
federal government that the exclusive jurisdiction of the
provinces which gives a federal character to the Constitu-
tion 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.
And he goes on further to emphasize that point. He
describes how he expressed a similar view in the House of
Commons on July 5, 1943 and on May 28, I946. Mr. St.
It has always been my view that any procedure for
amendment of the joint portion of the Constitution must
make proper provision for participation by both the feder-
al and the provincial authorities.
Senator Lamontagne, in his speech, referred to that 1950
dominion-provincial conference and the remarks of Premier
McNair of New Brunswick, which he used to indicate that
several provincial premiers believe that there is no constitu-
tional convention which obliges the Canadian government to
seek the consent of the provinces.
Qver the weekend, I read Premier McNair‘s speech. ln
discussing the method of repatriation and an amending for-
mula, he said:
ln my view the Constitution of Canada should not be
within the unfettered control of the Parliament of Canada
or of any other legislative body. The Constitution of
Canada and the power of amendment thereof should rest
on a deeper basis than the will of a single legislative body.
He went on to say:
These methods however require unanimous agreement
on the part of the dominion and the provinces, otherwise
there can be no treaty upon which the new Constitution
may be founded.
And further on in his speech he said:
Any change in the amending procedure should, of
necessity, require their unanimous consent.
And by “their“ he was referring to the provinces. With the
greatest respect, I say to Senator Lamontagne that his choice
of the speech of Premier McNair to support his comment that
provincial premiers do not adhere to the theory of provincial
Senator Flynn: Shame.
Senator Asselin: Shame, Maurice.
Senator Thompson: -—does not seem quite as substantial
after reading Premier McNair’s speech.
Let me go back to the Right Honourable Mackenzie King,
who formally approved these words uttered by his Minister of
Justice, Mr. Lapointe. It was in 1925 and Mr. Lapointe was
speaking on a motion for the enactment by the U.K. Parlia-
ment of a measure vesting the Parliament of Canada with the
power of constitutional amendment. Before I read that quota-
tion I would like to remind honourable senators of a comment
by Senator Lamontagne on a statement by Mr. Lapointe,
which was to the effect that provincial consent is not necessary
but may be desirable. in I925 Mr. Lapointe said:
The British North America Act itself is not only the
charter of the Dominion of Canada; it is just as much 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 prov-
inces 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» –
Honourable senators, I suggest that those remarks are a
little stronger than the statement by Mr. Lapointe which
Senator Lamontagne quoted.
Senator Flynn: Selected.
Senator Lamontagne: He said the opposite in i940.
Senator Thompson: I could continue back through the pages
of Canadian history reading statements by the Right Honour-
able John Diefenbaker and other former Prime Ministers, or
their federal spokesmen, right back to I867. I hope that
Senator Lamontagne, whom I respect deeply, docs not mind
that his remarks are being used as the substance of my
In his opening remarks Senator Lamontagne corrected
Senator Macquarrie who had been quoting Sir John A. Mac-
donald by saying that Sir John A. Macdonald had no high
regard for the provinces. indeed, he would like to see them as
municipalities. However, even though Sir John A. Macdonald
had no high regard for the provincial legislatures, he disap-
proved strongly of any infringement upon the provisions of the
British North America Act which would interfere with the
rights of the different provinces of the dominion. And in that
regard I would refer Senator Lamontagne to Home 0fCom~
mons Debates of April 8, I875, where Sir John A. Macdonald
—deprecated any infringement on the provisions of the
B.N.A. Act which would interfere with the rights of the
different provinces of the dominion.
DEBATES March 2, l98I
I am almost tempted to throw in a quote by Mr. Stanley
Knowles which I feel would be fitting in indicating my posi-
tion. However, I will not do that, but I assure honourable
senators that it is there. It will be interesting to see where Mr.
Knowles stands in the vote. I know that he is a man of strong
principles, and I do not think that he will be swayed.
There have been many serious attempts to find an amending
formula–in 1927, I935, 1936, I950, 1961, I964, I968,
l97IAand in each conference the federal government
refrained from proceeding with a joint resolution to the U.K.
government because of a lack of unanimous agreement among
the provinces. In sortie cases there was only one province
But federalism is a fragile form of government, as expressed
by Prime Minister Trudeau who wrote an article in Federal-
iirm and the French-Calmdians, which had also been published
in Social Purposesfor Canada (I961). Incidentally, I treasure
that publication in which Mr, Trudeau writes with great
lucitlity and logic, and frankly, I wish that I had had the
privilege and opportunity of studying under him. Prime Minis»
ter Trudeau, in that article, wrote:
But at all times, co-operation and interchange between
the two levels of government will be, as they have been an
I will quote further from this article since I think you will
find it to be of interest. In fairness, I would stress that Mr.
Trudeau wrote the article in I961 when the federal govern-
ment, through its financial powers, was encouraging the prov-
inces to accept a medicare program and a contributory pension
plan, of both of which I am very proud. Many felt that if suclt
national social policies continued, the provincial powers, to
initiate their own priorities, could be eroded. I believe it was on
that basis that Mr. Trudeau was writing this article.
On page I48 of the book I referred to, Mr, Trudeau argued
against the centralizing policies of socialists. He stated:
And there is surely some good in trying to improve upon,
or modernize, the rational but perhaps aging division of
powers adopted by the Fathers of Confederation. I am
inclined to believe, however, that Canadian socialists have
exaggerated the urgency of rewriting or rcinterpreting the
B.N.A. Act. Most of the reforms that could come about
through greater centralization could also follow from
patient and painstaking co-operation between federal and
provincial governments. And the remaining balance of
economic advantage that might arise from forcefully
transferring more power to the central government is
easily offset by the political disadvantages of living under
a paternalistic or bullying government. Granted the
foregoing statement, it is difficult to see why socialists
devote such energy to constitutional might-have-been’s or
ought-to-be’s, instead of generally accepting the constitu-
_ tion as a datum. From the point of view of “making
– available to all what we desire for ourselves,” it is not of
such momentous consequence that the subject matter of
some particular law falls within the jurisdiction of the
federal as opposed to the provincial governments, since in
either case the governments are responsible to one elector-
ate or another. In other words, laws»-~whether they issue
from one central government or from ten provincial gov-
ernments——benefit the same sets of citizens. The only
important thing, then, is that these latter clearly know
which level of government is responsible for what area of
legislation, so that they may be aroused to demand good
laws from all their governments.
This would not prevent socialist parties from stating in
certain limited cases that reforms might be carried out
more efficiently if the constitution were amended. But in
such cases, amendments would be clearly mentioned, and
not sly encroachments which inevitably result in confusing
the electorate as to which level of government is respon-
sible for what. Nor would the proposed amendments all,
and as a matter of course, tend to be in the direction of
For example again, when socialists advocate a constitu-
tional amendment enacting a bill of rights for all Canadi-
ans and all governments in Canada, they might simul-
taneously advocate the abolition of the federal right to
disallow and to reserve provincial laws, since such safe-
guards would then be obsolete.
Honourable senators, each of us, in our conscience, has to
decide whether the eight premiers against this resolution—six
of them involved in court proceedings against this measure—H
arc taking this action because they feel they are living under a
paternalistic or bullying government. Arc we exaggerating the
urgency of rewriting or rcinterpreting the B.N.A, Act‘? Are we
practising sly cncroachments with our dubious doctrine of
asking the British Parliament, if it dare, to judge the propriety
of the resolution rather than relying on a decision from the
Supreme Court of Canada?
Remember, honourable senators, no Prime Minister in our
history has dared to break the rules of our fragile federation.
What deeply concerns me, frankly, is that wretched Kirby
papcr?vwhich I accept was only one of several position papers
prepared by the bureaucracy»–and, for no reason I can under-
stand, we are adhering to the Kirby procedure. It states:
There would be a strong strategic advantage in having the
joint resolution passed and the U.K. legislation enacted
before a Canadian court had occasion to pronounce on the
validity of the measure and the procedure employed to
achieve it. This would suggest the desirability of swift
passage of the resolution and U.K. legislation,
Honourable senators, I will turn very briefly to the question
of convention raised by Senator Lamontagne. I have read Sir
Ivor Jennings‘ explanation of constitutional convention which
includes the statement:
—providing the ?esh which clothe the dry bones of the
In his text, The Law and the C0l1S[fIltIf0II, at page I36, he
suggests three questions:
March 2, 1981 SENATE DEBATES l90l
(l) What are the precedents’?
(2) Did the actors in the precedents believe that they
were bound by a rule’?
(3) Is there a reason for the rule‘?
There were con?icting opinions about a Constitution con-
vention being clearly established by learned witnesses who
appeared before the special joint committee. As Senator
Lamontagne pointed out, Professor La Forest made a strong
case against a full-blown and operative convention being
On the other hand, Professor Wade, an eminent scholar of
constitutional law and a Professor of English Law at the
University of Cambridge, argued that the fourth principle
contained in the 1965 white paper was concurred in, as he
understood, “by all of the provinces before it was published
and, therefore, is a convention in the most literal sense of the
term, agreed to by all parties.”
Honourable senators, I would quote the Right Honourable
Pierre Trudeau who is certainly a constitutional expert. He
In practice, of course, the federal government has in the
past sought the unanimous consent before seeking amend-
ments that have affected the distribution of powers.
Practice may not be a convention, and it is a too thorny and a
too difficult field for a layman like myself to possibly give a
decision on, but I would urge all of us to consider Senator
/\ustin’s creed contained in his passionate and brilliant speeeh.
Justice must not only be done but must be seen to be
Why do we not let the Supreme Court decide on the validity of
this resolution and on the questions Senator Lamontagne and
others have raised‘? Why the haste?
l find it hard to understand those who have-—-and no doubt
others wiil——-spoken with great passion on the necessity and
urgency to enshrine our rights because they do not trust their
Parliament or their legislatures, and feel the matter must be
decided by the courts. Yet, in connection with this matter of
momentous importance the supreme law which will govern all
governments—-they argue, in essence, to ignore the process of
law in Canada, and to ignore and forget that six premiers have
taken this resolution before the Canadian courts. I honestly
hope that some of those who may follow me will explain the
reason for such haste, and, if not, explain the inherent contra-
diction between their statement and their action in connection
with this resolution. I might even suggest that from now on,
the advocates of pushing through the resolution at least qualify
their positions by stating, “I believe the courts must be the
supreme and final arbitrator of our rights but not, on this
occasion, ofjudging the propriety of this resolution.”
Perhaps the advocates might ponder on the role of the
Supreme Court with respect to Bill C-60. Why did they
advocate sending the question of the role of the Senate to the
Supreme Court for adjudication, and not advocate patience to
allow the Supreme Court of Canada to decide on this resolu-
tion which affects all the people and all levels of government in
Canada? lf, in their advocacy, they draw on the decision of the
Manitoba Supreme Court alone, I ask them if it is not logical
to continue such reliance on the process of law and permit that
process to proceed right through to the Supreme Court of
For those who are advocating the protection of the minori-
ties through the authority of court decisions rather than those
of Parliament and legislatures, I ask them, particularly those
in the Senate, to consider their ambiguity towards minorities,
the provinces, Think of little Prince Edward Island. I do not
know if many of you have read the brief of Prince Edward
Island to the United Kingdom parliamentary committee. lt
had to rush over to the Foreign Affairs Committee of the
United Kingdom House of Commons because we, the senators
of Canada, their protectors, may ignore their right to have
their case heard in the Supreme Court of Canada prior to the
enactment of this resolution.
Let me just quote for you a few words from the brief:
it is submitted that the United Kingdom’s role as trustee
of the B.N.A. Acts must be as unpleasant for your
country as it is unpleasant for P.E,I. to oppose, in the
forum of your committee, a probable course of action by
the Government of Canada.
Honourable senators may argue that this resolution will not
affect the exclusive jurisdiction of the provinces. I find that
hard to aeeept, despite the one provincial supreme court
decision, The second amendment of the l3.N.A. Act in l949
gave Parliament the power to amend the Constitution in
matters within its sole jurisdiction. Why does the government
not then use this authority if there is no interference in
Let me read the federal governmcnt’s explanatory notes
which accompanied the bill:
An entrenched Charter of Rights and Freedoms will limit
the power of Parliament and provincial legislatures to
pass laws or take actions that contravene or restrict
unduly these guaranteed rights of Canadians.
Senator Frith: What is so sly about that’? It is pretty
Senator Asselin: Oh, come on!
Senator Flynn: Come on!
Senator Thompson: I am not talking about that being sly. I
wish you would follow more closely, Senator Frith, and I hope
you will read my speech.
Senator Frith: I will.
ln this sense, therefore, power of the legislatures, includ-
ing the Parliament in Ottawa will be restricted.
Let me read section 31 of the proposed charter:
DEBATES March 2, l9iil
3l.(l) This Charter applies (a) to the Parliament and
government of Canada and to all matters within the
authority of Parliament including all matters relating to
the Yukon Territory and Northwest Territories; and (b)
to the legislature and government of each province and to
all matters within the authority of the legislature of each
(2) Notwithstanding subsection (I), section I5 shall not
have effect until three years after this Act, except Part
VI, comes into force.
Certainly, all the provinces understand that this charter’s
Senator Frith: So does everybody else.
Senator Thompson: I think you are missing the point,
Senator Frith, and I hope you will read my speech rather than
interrupt me continuously.
Senator Flynn: It wouldn‘t be the first time.
Senator Asselin: It wouldn’t be the first time he has missed
the important parts.
Senator Thompson: Certainly, all the provinces understand
that this charter‘s purpose is to limit legislativejurisdiction by
rendering inoperative provincial laws, which are, in the judg-
ment of the court, inconsistent with the charter. The fact that
it will also limit federal jurisdiction does not alter that fact of
infringing on provincial jurisdiction.
I am not talking about slyness; I am talking simply about
the basic fact that I consider this charter will infringe on
Senator Frith: So does everybody else.
Senator Flynn: He doesn‘t want to understand.
Senator Thompson: One of the provinces‘ many questions
Senator Flynn: His mind is blocked.
Senator Thompson: ~–~Will freedom or religion interfere
with provincial and municipal legislation concerning the clos-
ing of stores on Sundays and provincial aid to denominational
schools‘? I would assume that we have provincial administra-
tion with respect to mental illness.
I remember writing a speech in days long ago for the
Honourable Paul Martin, the then Minister of Health and
Welfare, and having to avoid the suggestion that the federal
government had the responsibility for the mentally ill; that this
was a provincial concern. And yet in our Charter of Rights we
now include this. The point I am making is that we are going
to require the provincial governments to spend three years in
bringing their laws into line with a charter in which they
themselves have had no input officially‘
Honourable senators, I want to deal with the Bill of Rights,
but I have taken up far too much of your time.
Senator Smith: Not at all; not at all.
Senator Thompson: Perhaps I will continue then. I appreci-
ate your encouragement.
One of the difficulties of talking about the charter is that
people assume that if you discuss it with some apprehension or
concern you do not believe in minority rights. Honourable
senators, I find it annoying to hear that, but I intend to take a
back scat to no senator in this chamber concerning fighting for
the rights of minorities.
Some Hon. Senators: Hear, hear.
Senator Thompson: When I was a provincial member I was
trying to help the Italians in my riding. I spent a week living
with an unemployed Italian family, dressing as shabbily as I
could, and walking around to sec the kind of treatment they
were receiving. Following my experience, Pierre Berton wrote
a series of three articles in the Star, and Premier Frost
mentioned to me that I had shown him some of the needs of
those minorities. As a result, the Ontario legislature enacted
seine safety legislation‘ I could go. on about my fight for many
minority groups across Canada
Senator Austin focusscd on Japanese Canadians. When I
was doing graduate work at the University of British
Columbia, one of my research papers was on the odious laws
that the British Columbia legislature had with respect to
Asiatics, and yie?sfiuggle that took place to try to achieve
their naturalization. Although I believe other senators have
done a great deal with minorities, I believe I am the only one
in the Senate who has hanging in his office—wand I am proud
of it – an inscribed poem donated to me by former internees at
a Japanese internment camp. It speaks of their struggle to
achieve citizenship. It says:
As final resting place
Canada is chosen.
On citizenship papers,
In questioning the validity of entrenching our Charter, I do
so hoping that no one is going to suggest that I do not have a
deep and consuming interest in minority groups. I discard as
irrelevant the argument that the Soviet Union and other
tyrannies of the right or left may have enshrined inspiring
As an editorial in the Financial Post pointed out:
The Soviet bill of rights includes such qualifiers as ‘enjoy-
ment by citizens of their rights and freedoms must not be
to the detriment of the interests of society or the state‘
and ‘the freedoms of speech, the press and assembly are
granted in accordance with the interests of the people and
in order to strengthen and develop the socialist system’.
In other words, to bring up the Soviet charter and to try to
equate the Canadian people with the Soviet communist system
is like comparing oranges and sour grapes.
I think it is more reasonable for us, when we look at
cntrcnchment of rights, to look at the Commonwealth. I
looked at the Commonwealth to see where rights had been
entrenched. I found that the United Kingdom had not
entrenched them, that New Zealand had not, and that Aus-
March 2, I981 SENATE
tralia had not. Then I found that India had, and I thought,
“Well, I won’t ponder very long on India as far as guarantee-
ing rights is concerned.” So I thought that perhaps the fairest
thing I could do would be to go to the American Bill of Rights.
The United States is a country that has a similar background
of tradition and values.
When I was in the United States and did some research in
social welfare, particularly in child welfare, I recall reading a
hook called The Dead Hand Oflhe Law. I tried to get it, and I
could not. ln the book it described the blocking by Supreme
Court decisions of the abolition of the frightful and appalling
conditions of child labour. Professor Browne, whom Senator
Cook referred to, pointed out that the rights to “liberty” and
“enjoyment of property” which were applied by the American
Supreme Court through its interpretation of the “due process
clause” disallowed laws imposing maximum hours and mini-
mum wagc standards, prohibiting discrimination against trade
Then I thought of the outrages committed in the McCarthy
era. Where were the enshrined rights that the Americans had
to protect them from changes made only on the basis of
association’? What about the treatment of blacks and, indeed,
of their own Japanese Americans, to mention seine who
thought that their rights were secure and guaranteed by
Frankly, I wish I felt the excitement that others profess to
feel over the transfer of protecting rights to the courts from the
sovereignty of Parliament and the legislatures. I believe that
the rationale, the explanation, for that transfer needs much
less emotional rhetoric and more deliberation by all of us.
There are great libertarians who are uneasy about this
transfer. I could quote from the McRuer Commission in I969,
and I could quote D’Arcy McGee, admired by Senator Riley,
There is more liberty and tolerance enjoyed by minorities
in Canada than in the U.S.
A. V. Dicey, in the nineteenth century, wrote that a written
Constitution was inferior because it would only act as a brake
on the liberal spirit with which he expected Parliament to be
I also recognize and agree that the legislatures have not had
a proud record. I would hope that there would be an
entrenched Bill of Rights, but that it would compliment the
work of the legislatures. I would go along with that. But I do
not have enormous aspirations as to what it is going to do for
l would like us to think of the alternatives before we take
this final course. There have been approaches made to us in
this regard. Senator Cook mentioned Professor Browne and his
idea of having a priority of rights. That might be something
worth looking at. Priority of rights should be further exam~
ined, because it is important.
Another matter that concerns me is the reference to a
referendum. Frankly, I feel that a referendum is foreign to our
system. I have looked at Australia’s experience with referen~
dum as a means of amending its Constitution. Quoting from
an exhaustive work on the subject by Don Aitkin entitled
“Referendum: A Comparative Study of Practice and Theory”,
he refers to Australia’s experience as being, on the whole, a
I am sure that all honourable senators know the arguments
against having a referendum: it weakens the power of elective
authorities; the inability of ordinary citizens to have the time
to study. These are all arguments against it. There is the
inability of ordinary citizens to study complex issues. I can say,
with respect to this issue, that if it were not for the fact that I
am a senator and have been able to devote my time to it, I
really could not spend the time in delving into such a complex
subject to make rational decisions. There is no measurement of
intensity of feeling. I hope that the proponents of minority
rights will pause and think a bit about any reference to a
referendum, because with the intensity of belief there is no
means ofa compromising consensus, and minorities are in real
danger when it is the majority rule that will decide, when the
decision will be by majority vote only.
Because of the necessity for a consensus in reaching agree-
ment on this resolution, I would like to ask the government the
following question, because there is concern expressed by the
provinces that we are usurping their sovereignty through the
use of a referendum: Would the government consider that the
use of a further referendum to solve a deadlock be dropped
and placed on the agenda of the First Ministers’ Conference
after the enactment of the resolution‘? I say that with deep
sincerity and appreciation that the government has shown
considerable flexibility toward amendments. We should
remember that the joint committee adopted 67 amendments
Honourable senators, why am I so deeply concerned about
this resolution? Principally it is because, to my mind, the
resolution does not have the credibility of public consensus or
the eligibility of provincial consent which raises the question:
What will occur when the resolution reaches the British
I would hope that the British—and I am sure Senator
Lamontagne agrees—-will look on it in the way that the Right
Honourable Louis St. Laurent looked at Newfoundland when
that province entered Confederation. As honourable senators
know, when that province voted to enter Confederation there
arose the question as to whether it should have responsible
government prior to taking that step. The question was asked
of Mr. St. Laurent in the House of Commons, to which he
replied that he felt the question of responsible government was
a matter for the British government, and that it was not proper
for him to interfere with respect to that. I hope that the British
Parliament will adopt the same kind of approach with regard
to the resolution that is sent to them.
If the British Parliament decides that the resolution is
proccdurally proper and enacts it, and later the Supreme
Court decides that the act is not valid. what will be the
DEBATES i March 2, l98l
situation? Dr. La Forest, the authority mentioned by Senator
Lamontagne, pointed out that:
—–the act would be valid in the United Kingdom; the
United Kingdom would have abdicated its power. We
would be left in a judicially created limbo from which it
would be hard, if not impossible, to extricate ourselves by
Honourable senators, constitutional experts far more knowl-
edgeable and objective than I are perplexed over what this
resolution will do to our federation. I refer you to Professor
Wade, Professor of English law at Cambridge University, a
world recognized authority on constitutional law, who when he
was before the British Foreign Affairs Committee stated:
The federal government cannot take away the powers of
the province. This is something which the Government of
the United States is unable to do, and the Government of
Australia is unable to do. lt is absolutely fundamental to
a federal country, and if Canada is to remain a federal
country that must be the situation.
Honourable senators, as I am sure you all know, I have
anguished over making this specch, and I am sure that many
other senators must have anguished over theirs. I am sure, too,
that Maxwell Cohen must have been deeply troubled when he
wrote the article in the Globe and Ma/’1, which I am going to
quote, about the lack of consensus that we see in Canada
today. I think he believes in the substance of the resolution,
and in the entrenchment of the Charter of Rights, but in his
article in the Globe and Mail of February ll, l98l, he said;
The only means to satisfy a Canadian sense of legitimacy
and credibility, and to remove the temptation from Brit-
ain to define the Canadian federal system or interpret the
Canadian Constitution, is to haveithe legal meaning of the
package resolved, finally, by the Supreme Court of
Canada. lrt that one move, legitimacy would be deter-
mined, credibility achicved and relations with Britain
would return to normal by Britain‘s acceptance of what-
ever the Supreme Court rules. The package, charter,
amending formula and all, would thus be rescued from a
demeaning debate that engulfs the nation and threatens
its sometimes fragile unity. –
Honourable senators, I felt so strongly about this need for
the Supreme Court to give legitimacy to the resolution, that l
had intended —and I have it in my hand here——to move a
motion that I will read to you. lt is as follows:
That this Order be discharged and that the subject
matter of the motion for an Address to Her Majesty the
Queen respecting the Constitution of Canada or any
matter relating thereto be referred to the Standing Senate
Committee on Legal and Constitutional Affairs for
examination and consideration, and that the committee
. report thereon no later than six months from the date of
the adoption of this motion.
I am not going to move that motion, because I feel I should
give myself the opportunity of hearing from other senators. l
am not convinced that there is a need for haste. I am con-
vinced that there is a need for consensus and legitimacy with
regard to this resolution, and I beg some honourable senator,
and I look forward to his doing so, to convince me accordingly.
Hon. l). G. Steuart: Honourable senators, I do not intend to
take a great deal of your time tonight. I will speak for a short
time and then ask leave to adjourn the debate and conclude my
remarks tomorrow. I felt, however, that I wanted to go on
record and make a few comments this evening, after listening
to the excellent speeches of Senator Macdonald and Senator
Thompson, particularly that of Senator Thompson which,
though I am unable to agrcc with it, was a speech that was
fully researched. Furthermore, I am sure that I speak for every
one of us when I say that I recognize the sincerity of the views
held and put forward by Senator Thompson. I am sure his
speech represents his deeply held convictions on this vital
question of the constitutional resolution.
l must say, however, honourable senators, that I honestly
believe that in his effort to remind tts-I—and he has reminded
us——of the long and tortuous efforts by Canadians for over half
a century to establish our own Constitution totally within our
own power and our own jurisdiction, he has made a strong case
for doing little or nothing, or, on the other hand, for proceed-
ing with the utmost caution, almost to the point where there is
an abrogation of the powers given to the House of Commons
through an clcction, and to us through appointment, as the
Parliament of Canada, by handing that responsibility over to
an appointcd body in the form of the Supreme Court of
Canada. For mypart, I say that that would be dereliction of
Senator Flynn: You are confusing the argument.
Senator Steuart: He has made the case for this generation
of Canadians to do exactly what every generation of Canadi-
ans has done for the past half century when faced with the
difficult task of bringing the Constitution to Canada, and
developing a practical formula of amendment, as any mature,
developed nation surely would want to do–~that is to say, that
we should follow the example of those who have gone before us
and do little or nothing.
We are all aware of the tremendous efforts made by
Canadian statesmen of all political parties to bring the Consti-
tution home, and have an amending formula. They all failed,
and they failed in the final analysis, I think, because they did
not have either the conviction or the courage to proceed in the
face of tremendous odds.
Frankly, I think that the time has come when we need the
kind of statesman that we have now.
Senator Flynn: Like you‘?
Senator Steuart: I refer, of course, to the Prime Minister we
have today, who has the courage to grasp the nettle, to take a
stand and cut through the red tape and the fog of discontent
and disunity that has hindered a solution to this question for
over half a century, in order at last to do what he thinks is
right, and to take what I think history will say was the right
course to take.
March 2, l98l SENATE DEBATES I905
Senator Thompson posed a question that bothers him, and
that bothers a great many Canadians. He asks if we should do
this in the face of all odds, or if we should try to please
everybody, and thus risk pleasing nobody. Until we get total
agreement, should we cower back and get no agreement‘? That
is the path that has been followed too often in this nation. If,
on the other hand, we follow the lead of our present Prime
Minister, we will cease to follow those who have gone before
us, and do what is right.
Senator Thompson poses another very serious question
which is: Does the end justify the means’? I am sure that has
troubled all of us. Well, honourable senators, I say that in
some cases, of course, the end justifies the means.
Senator Flynn: Oh, no!
Senator Steuart: Oh’! In no case does the end ever justify
the means? Well, honourable senators, I am afraid I disagree.
l think there are many cases where the end justifies the means.
It depends on the end, and on the goal, and, of course, it
depends on the means.
An Hon. Senator: Did you ever hear of Christianity’!
Senator Steuart: Let us look at the end we have in mind
today. The end is a modern Constitution in Canada, amend-
able in Canada by Canadians. The end is a Charter of Rights
to protect the basic rights and freedoms of all Canadians,
regardless of their race, colour or creed, regardless of their
station in life, regardless of where they live in this great nation.
This charter is designed to protect, as never before, certain old
rights and freedoms, but as well, some new rights and free-
doms, such as rights for our natives, the original inhabitants of
this nation. These are rights, I point out to you, that have
never been protected before by provincial legislation or federal
legislation, and I tell you that those native people are looking
at a new concept and a new opportunity, as are the disabled
people and many other minorities in the nation, as a result of
the entrenching of a basic Charter of Rights in the Constitu-
tion, if we have the courage, as Canadians, to bring this about.
Senator Asselin: No more clause 44!
Senator Steuart: This is worthy of great effort and great
sacrifice. I would point out to honourable senators opposite
that it is also worthy of all enlightened Canadians.
Senator Asselin: No more clause 44!
Senator Steuart: What about the means? We are now
engaged in dealing with the means. The passage of this
resolution through the Senate, representing every region in
Canada, and its passage through the House of Commons,
composed of 284 men and women freely elected a year ago-»
Senator Flynn: With no free vote!
Senator Steuart: —-with a mandate, I point out, to governw
Senator Flynn: With no free vote!
Senator Steuart: -with, I would point out, a fresh, strong
mandate to govern –
Senator Flynn: With no free vote!
Senator Steuart: –and sent here from every part of Canada
with full power to change, to rewrite and to amend this
constitutional proposal, as they have already done, and as I am
sure they will continue to do. If the Leader of the Opposition
says that they will not do it, I ask him only to speak for his
party because our party members have already shown, on this
side of the house, that they ltavc the courage to speak up when
they dissent—witness two senators, one on the left and one on
the right. If that is not true on the other side of the house, that
is their problem, and that is why they are on that side of the
house, I would suggest.
Some Hon. Senators: Hear, hear.
Senator Steuart: This will pass eventually; it will pass or be
defeated by a Parliament exercising its full power and its free
will. If the members opposite say “nay,” they show their
contempt for the elected members of the other house and for
the appointed people in this place, and I do not have that
Senator Flynn: You have no mandate——
Senator Steuart: I have a great deal more confidence than
they obviously have.
Senator Flynn: You have no mandate to do that.
Senator Steuart: Again, I say that this is a worthy and
honourable goal, but it does call for courage and it calls for
unity, something that the honourable senators opposite obvi-
ously do not recognize, as witness recent events.
Senator Flynn: You have not read clause 44, then. You did
not have that courage three months ago.
Senator Steuart: I am not sure if that was a question, an
outburst, or a knee-jerk reaction-—a reminder of their late
difficulties. However, if it is I would withdraw; I do not want
to get the honourable senator too upset.
However, what we are engaged in, honourable senators, is
the building ofa new Constitution, a new framework to help us
build a stronger and, I point out, a more united Canada. That
is what I think we will accomplish.
Honourable senators, I shall have more to say tomorrow.
On motion of Senator Steuart, debate adjourned.
The Senate adjourned until tomorrow at 8 p.m.
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