Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Debate Continued” (24 February 1981)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 1831-1841.
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February 24, l98l SENATE
MOTION FOR AN ADDRESS TO HER MAJESTY THIS QUEEN-
The Senate resumed from Thursday, February I9, 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. Arthur Tremblay: Honourable senators, do we all have
enough courage to tackle this question so late this evening? I
hope that the vitality which was obvious in the exchanges since
the opening of the sitting will be of great assistance and help
you listen to the statement I am about to make and which may
be rather lengthy. In any event if everyone agrees I might
simply stop around ten o’clock or l0.l5 and continue tomor-
row. In any case I imagine you will not hold it against me if I
spare you a rhetorical introduction to the comments I intend to
make. Let us get directly to the point.
My comments on the proposed resolution before us will
focus on four themes. The first theme, the work of the
committee which improved the resolution, but in fact it has
remained essentially as it was in October. The second theme,
the arguments of the government and the opposing views.
Third, I will dwell on the growing opposition since October 2
and the emergence of new deadlocks. Finally, to break those
deadlocks, I will recall the alternative proposals made to the
committee by the Progressive Conservative Party. I will con-
clude by describing the choice we have to make between two
concepts of the federation and its future.
As regards the first theme, during and after the work of the
joint committee what happened to the resolution of October 2
which we referred to it for study last fall‘?
To what extent has it been changed more or less by the
amendments made to it?
According to its report the committee finally adopted 67
amendments altogether: 58 of the 58 proposed by the govern-
ment, 7 of the 22 moved by the Progressive Conservative
Party, and 2 of the 42 from the New Democratic Party.
On which part of the resolution did most ofthc amendments
Setting aside 10-odd strictly technical amendments, the
remaining 57 basic amendments are divided as follows among
the various parts of the resolution: the Charter of Rights, 35
amendments: equalization and natural resources, respectively
I and 2 amendments; the constitutional conference, 2; the
amendment procedures, 14; the general provisions, the last
part of the resolution, only one amendment; and the schedule
to the Constitution Act, 1981, 2 amendments.
I think these statistics are revealing, showing as they do that
most of the amendments had to do with the Charter of Rights
and the amendment procedures. I think that such concentra-
tion does not reflect only what I would call openness or
accommodation on the part of the government with regard to
DEBATES February 24, 1981
the various amendments possible. At the same time they
reveal, perhaps by coincidence, what was expressed in commit-
tcc. They reveal the interest shown by the witnesses who
appeared before the committee,
There is no need to say that these basic amendments did not
have equal significance. There is no need to say either that
different value judgments can be made on their more or less
In that respect I have no intention of analyzing the amend-
ments related to the Charter of Rights, or other fundamental
ln all fairness, it should be noted in passing that the Charter
of Rights came out of committee much better than it was
when it went in. Also, the inclusion in the Constitution of the
equalization principle and of provisions on natural resources
are important and valid constitutional amendments.
Since we proposed in committee that such changes be part
of the normal post-patriation constitutional amendment pro-
cess, we should not at this stage discuss the basic quality of the
proposals contained in the government‘s package.
Rather, I will consider the changes made to the amending
Arc we in fact dealing with substantive amendments?
The following changes to parts four and five dealing with
procedures scem to me to be of some significance,
Under section 38, for example, which became section 42,
seven instead of eight provinces can get together to submit
their own proposal in view of a referendum to decide between
the federal and the provincial formulae. However, the com-
bined population of these provinces must still make up at least
eighty per cent of the total population.
As for the federal formula, the Victoria formula presum-
ably, the two maritime provinces which could veto a proposed
amendment, do not have to represent 50 per cent of the total
population of the area, however this requirement remains in
effect for the western provinces. ‘
As for the referendum, both in the interim period and for
the permanent procedure, a Referendum Rules Commission
was proposed in amendment. The provinces will be represented
collectively on that Commission by one person out of three
appointed on the recommendation of the governments of the
majority of the provinces. The suggestions made by the Com-
mission on the rules applicable to the holding of a referendum
are not final however. The final decision will rest with Parlia-
ment which will continue to legislate on the holding of a
A period of re?ection of one year, a cooling-off period as it
is called, is provided for referendums used as deadlock-break-
ing mechanisms, between the time Parliament passes a resolu-
tion authorizing an amendment to the Constitution of Canada
and the time the Governor in Council authorizes by proclama-
tion that a referendum be held.
A new amending formula was added to the one provided for
in the proposal to allow a province, with the consent of
Parliament, to apply all or part of the official languages
provisions. Incidentally this is a proposal we made but which
the government adapted to its own views. Our proposal
required only the decision of the province, whereas the amend-
ment also requires Parliaments consent before a province is
free to “opt-in”. The way in which the amendment was
formulated has changed what we considered a pure and simple
freedom for the provinces to join in into a sort of controlled
and limited freedom.
Curiously enough, and perhaps with a bit of procedural
humour, if such a thing is possible, it is because of the previous
amendment that the Senate was spared, since it is to section 44
of the initial proposal that the previous amendment was moved
by the Minister of Justice. After the ncw section 44 was
passed, it only remained to say, and the minister did so with a
smile, that the previous section 44 concerning the Senate had
been deleted automatically. There was therefore no positive
gesture of salvation of the Senate, but rather a saving
In my opinion, these are the only significant changes made
to the proposal. For my part, I do not consider that they
change its substance.
All things considered, the February 13 version of the gov-
ernment proposal is essentially similar to the October 2
The substance of the government proposal remains the
same. The proposal is unchanged in several respects. It is still
exclusively a proposal of the Canadian Parliament. It still
includes radical substantive changes to the Constitution, from
the Charter of Rights to the amendment to the British North
America ‘Act of 1867 relating to natural resources; the rule of
unanimity as a temporary amendment formula is also there,
and so is the Victoria formula as a permanent amending
formulaprepared by the government to amend the Constitu-
tion. The proposal still provides for a referendum to break any
deadlock on the selection of a permanent amending formula.
Finally, the referendum has been retained as a permanent
mechanism to amend the Constitution in the future. All in all,
the government proposal remains essentially the same in its
more questionable aspects.
Since the government proposal has remained the same for
all practical purposes, no one should be surprised that the
arguments invoked in support of it have not changed so much,
no more, I must admit, than the arguments against it. In this
regard, both proponents and opponents of the resolution are in
the same boat as we have had to repeat ourselves more often
than not these last few months, and I think that my contribu-
tion this evening does not escape this common fate. In any
event, I have tried to bring down to seven the major arguments
for and against the government proposal. However. I do not
claim to have done justice to all of them. In fact, I have
mentioned them only as a reminder, since the rest of the
debate will probably provide us with the opportunity to look
February 24, 19st SENATE
DEBATES l8 3 3
fully into them and put them in their proper perspective. In
fact, in view of the late hour, I am not certain that I shall
review them all.
However, I want to say a few words about the first one.
The first argument would read something like this: We now
have a constitutional amending procedure which does not
require the unanimous consent of the provinces, but only the
vote of a simple majority of the members of both houses of the
Canadian Parliament. The Canadian Parliament should not
retain this unlimited power to amend by itself the Constitution
I quite agrcc that the Canadian Parliament should not
retain the unlimited authority to amend the Constitution of
Canada on its own, if however such an authority does exist»-
lt may be that in strictly legal terms Parliament is invested
with such an authority. There is some uncertainty, however, as
indicated in the judgment of the Manitoba Appeal Court.
The situation is far from clear when one analyses its legal
aspects as was done last fall by Senator Flynn, well before the
Kershaw report endorsed his theory. According to him, since
1931 and I949, the British Parliament is the guardian in trust
of the Canadian fcdcrative system.
But let us leave it to the courts to finally settle the matter,
which is strictly legal.
Let us keep in mind, however, that for the past 50 years, the
federal Parliament has always ensured that a constitutional
amendment relating to jurisdictional matters be previously
subject to provincial assent before going through the required
formal and legal procedure with the Parliament in
A second argument deals with the half~century of attempts
to agree on an amending formula. One half-century of useless
attempts. It is time to act and to break the deadlock. That is
called the “deadlock-breaking mechanism” concept.
Senator Flynn: That hang-up!
Senator Tremblay: This, l suggest, is an obvious case of
rebuilding the past from one’s perception of the present. A
very conventional approach indeed with which a great histori-
an, Professor Marrow, deals at length in his book entitled “On
It is indeed an historical make-up from a reading of the past
designed to illustrate one theory, that of the multiple dead-
locks, to justify the action one has decided to take, and which
is mainly based on a new concept of federal relations in
Canada, the “deadlock-breaking mechanism” concept, to use
the author’s own words.
Canadians are well aware that the constitutional history of
Canada is not limited to such a simplistic and biased reading.
Third point: The deadlock is ascribed to the provinces which
have no sense of the national interests but solely of their own
interests. The national Parliament alone and not a community
of communities as a league of provinces can look after, exam-
ine, negotiate and secure Canadian interests.
My answer to that point is simple: This is an anti~federal
and fundamentally centralist argument. In short, in a federa-
tion the national interests are defined on a power-sharing
basis. I will only quote two examples: education, for instance,
is assigned to the provinces under our Constitution. ls educa-
tion not a matter of national interest? This is not the reason
why it was left with the provinces. The assignment of educa-
tion was consistent with the Canadian reality which required
that the provinces themselves be responsible for such a nation-
wide problem. Moreover, throughout the years they have made
sure that the required co-ordination exists at the national level
to solve the national aspects of the educational problem. The
provinces eventually came up with the Board of the Ministers
of Education which has now been operating for almost 20
The question of civil rights is another example. And this is
the example used for the so-called checkerboard, a pattern of
Common Law and Civil Code which originally were clearly
seen as coming under the jurisdiction of the provinces, more
specifically to coincide with the reality of the Canadian fabric.
In short, the sharing of jurisdictions means that national
interests are best served by assigning legislative authority to
the provinces in Certain matters. They are also best served in
other matters when that jurisdiction belongs to the central
Consequently. it would scem wrong, to say the least, were
the national Parliament to be the only authority to be involved
in the national interests of the Canadian people within a
federal system. The two levels of government are responsible
for those nationwide interests.
A fourth argument deals with the Charter of Rights and
freedoms. Canadians as a whole want a Charter of Rights and
freedoms. The only way to get it is to include it in the
patriation package. Otherwise, we will never get it, because the
provinces do not want it.
Let us forget how odious the provinces must find such an
argument, where federal officials state bluntly that it is indeed
justified to call on Westminster, in ‘order to overcome the
provinces‘ opposition to such an important document which
will affect them very deeply.
But, on top of everything, I suggest that we should not speak
as though there were no Bill of Rights now in Canada. As a
matter of fact, each level of government has one. On the
federal level, we have the Diefenbaker Bill of Rights, and on
the provincial level, we have in each and every province a more
or less elaborate one. These charters however, are ordinary
laws enacted by legislature.
The idea here is to move up from parliamentary charters to
a “Constitutional Charter”.
We agree in principle on the need for such a movement. But
the Constitutional Charter should not repeal the others. On
the contrary, it should harmonize them. What will happen to
the existing charters, both federal and provincial once the
proposed charter is finally adopted by the British Parliament
in London? Will the preamble, for instance, aid the enjoyment
of property which can be found in Mr. Diefenbaker‘s Bill of
Rights and which has been rejected by the Committee, disap~
pear from the federal statutes‘? Will the federal and provincial
DEBATES February 24, I981
governments take the necessary steps to adjust their respective
charters in line with the charter imported from London? It is
quite clear that the federal and provincial governments will
find it appropriate to wait until the courts have passed judg~
ment on specific cases to decide what they are to retain or
eliminate from their respective charters, taking into account
the existence ofa constitutional charter,
All things considered, however, it seems to me that the most
critical question we have to ask ourselves is this: setting aside
all demagogy, is it preferable in the very interest of those
whose rights and freedoms we would guarantee and protect in
the fields ofjurisdiction of both the federal government and its
provincial counterparts; is it preferable to impose now, unilat-
erally, a constitutional Charter of Rights and Freedoms with»
out prior approval between the two levels of government; is it
preferable to impose now and unilaterally the Charter of
Rights and Freedoms drawn up in committee under the work»
ing conditions we know? I am not underestimating the quality
of the efforts our committee made to improve the proposed
charter in the light ofthc testimony it heard. V
But, if life and experience have taught us anything, I am
sure it is that maturity and growth cannot be forced upon
either men or any living things. One docs not make a tree grow
faster by tugging at its branches. The principle of its growth is
found in its roots.
The same can be said about rcal and effective protection of
rights and freedoms. It has its roots in living communities. Of
course, it must blossom out in a constitutional charter. How-
ever, if we pull at it too quickly and too hard through the
Constitution, we take thc risks of uprooting it. In vicw ofthesc
major risks, I do not for my part sec anything tragic in
rccstablishing in the normal growth process of our federation
the development and application ofa constitutional Charter of
Rights and Freedoms based on the roots it already has at both
lcvcls of governments, in the ll existing parliamentary
A fifth argument which has been repeated very often, I
believe, is that the important thing is not the process itself, but
the substance of the proposal.
This argument is more than specious. In a federative system
defined by a sharing of jurisdiction and powers by both levels
of government and by the relationships between these two
levels, the process is the substance of the system itself.
In fact, this is always true in a democratic system if not in
other systems. Is the democratic choice of those who exercise
power on behalf of the people and for the people anything else
than a process? Yet, the substance is not to be found in the
democratic election of political leaders, but rather in the
contents of parliamentary legislation. Should we then say that
elections are not important in a democratic system because the
substance is the legislation? In certain areas, substance and
process become one.
A sixth argument is that the present proposal does not
provide for any change in the distribution of powers. This is so
obvious that I shall forego any detailed explanation, even a
brief one. However, I do not want to skip a seventh argument.
This is only a beginning, a good beginning! Afterwards, we
shall undertake a true renewal of the Constitution. No one
would have wished Parliament to act unilaterally. Circum-
stances have brought this about. It is only a bad time to go
through, and afterwards everything will return to normal in
order and harmony,
Obviously, this appeasing argument has been inspired by the
increasing opposition to the government proposal in the last
few months. The government was a bit more confident in early
October when it believed that the opposition of the provinces
would melt away! In fact, this argument reminds me of the
divorce and remarriage argument which was served under
various forms to oppose sovereignty association during the
referendum campaign. Isuggest to Mr. Chréticn and the other
Quebec members of Parliament that they should read their
own statements on this theme, They arc as valid mutatis
mumrulis in the present situation. The divorce between the
federal government and the provinces could not be more
obvious. Remarriage in happy harmony after implementation
of the government proposal will not be any easier than remar-
riage of the association would have been after the divorce of
the Quebec sovereignty.
On reflection, I wonder if most of the arguments that we
gave Quebccers to oppose sovereignty association and support
federalism during the referendum campaign cannot be trans-
ported nearly theme for theme to support federalism and
oppose the present government proposal.
Such arc, roughly summarized, the main arguments in
support of the government proposals and the replies, also
roughly summarized, I admit, that we can give to these
In any case, all these arguments for and against the proposal
must not make us forget a very important phenomenon which
has occurred since the fall and which, I hope, is certainly not
irrelevant to the argumentation itself, but which has tran-
sccnded the committee and the parliamentary circle to involve
the outside world. I referred to this phenomenon earlier when I
spoke about increasing opposition and the emergence of new
It is now past 10 o’clock, and I maintain my previous offer,
honourable senators, unless you have the necessary stamina. I
am just about half way through. I warn you, honourable
senators, that you will have to be patient.
Let us look at the opposition which has built up since
October and the emergence of new deadlocks. I do not intend
to try to determine whether or not there was any true deadlock
at the September conference,
We have two official versions in that respcct~onc by the
Prime Minister of Canada, the other by the chairman of the
provincial premiers conference. What is of significance for the
subsequent events is that the Prime Minister concluded that
there was indeed a deadlock and decided to act the way he did.
The interesting point is that his decision and the ensuing
February 24. 1981 SENATE DEBATES 1835
proposal then became the starting point of a series of reac-
tions, the scope and consistency of which the Prime Minister
himself may not have envisaged.
Having dramatized, in order to create a deadlock, the
difficulties normally encountered in a conference such as the
one held in September, considering the circumstances, having
dramatized the September deadlock to make it the conse-
quence of all previous failures, each confirming the others, he
chose to proceed in such a way that he himself created and
produced new deadlocks: first, a deadlock as between the
national government and the Canadian community, re?ecting
rising opposition to the proposal from October 2nd onwards.
And second, a deadlock, still latent but quite possible between
the Canadian Parliament and Westminster.
The rising opposition is so obvious that l need not dwell on
it. Let me say a few words however on the possible deadlock
between the Canadian and British Parliaments. Maybe in this
case “dilemma” would be a better term than “deadlock”. The
question is ‘not whether the British Parliament should or
should not rubber-stamp a request from the Canadian Parlia-
ment to amend the Constitution. The fact is that the Canadian
Parliament has not done that over these last 50 years without
first securing provincial agreement, where the relevant amend-
ment implied a sharing ofjurisdiction.
What is unheard of in the government proposal is that they
want to ask Westminster to rubberstamp the proposal despite
the substantial changes it would introduce into the Canadian
It is such an unusual scheme that the British Parliament has
some reservations about it. For the moment, they are only
pondering. Let us hope that the Canadian government will not
change their reluctance into true dilemma or deadlock.
Fourth and last, how can we break out ofthose deadlocks we
have created over the last few months’? One way out has been
to propose amendments in committee. We have tried to sug-
gest a legitimate and positive alternative to the government‘s
proposal which would retain the basic objectives, but discard
unacceptable elements involving both the process and the
substance. The project embodies three basic objectives, First,
to patriate the Canadian Constitution. Second, to allow the
Canadian federation to amend its Constitution. Third, to
cntrench a Charter of Rights and Freedoms, and various n”-ajor
changes into the Constitution.
As far as those objectives are concerned, at no time have we
questioned their real value. We have recognized them as
valuable and necessary. But right from the beginning, we have
objected to the procedure the government intends to follow to
reach its goal, as most Canadian provinces representing a
majority of the Canadian people and a great number of
Canadians have expressed their disapproval.
As I said earlier, they cannot say that the process is not an
important matter in this case. To the contrary, the approach
and process are important when they substantially alter and
affect the basis and very nature of our federal system.
A few days ago, Mr. Chrétien said that nobody,‘ including
himself I suppose, understood our proposal, but it all seems to
me very simple.
Our proposal asks London to do what it should do. But
nothing more. We are not asking London to make on our
behalf substantive changes to our Constitution which should
be made in Canada through the amending formula agreed to
between the two levels of government.
We are asking London to do only three things. First, to
repeal section 7(1) of the Statute of Westminster. That is
decolonization, the removal of the last colonial link binding
Canada to Great Britain, the patriation of the Constitution.
Second, to cntrench as a temporary amending formula the
rule under which amendments to the Constitution affecting
power sharing and especially the jurisdictions, the rights and
privileges of the provinces could only be made with the consent
of Parliament and all provincial legislatures: it is the rule of
Third, to define and legalize the process through which the
Canadian federation will give itself, after patriation, an
amending formula in keeping with the federative character of
That is the gist of our proposal. On the first two points,
there is no difference between the government’s proposal and
ours: they both repeal section 7(l) of the Statute of Westmin-
ster, and they both maintain on a temporary basis the rule of
unanimity as the amending formula.
It is in connection with the third point that they show major
differences, while nevertheless showing some similarities.
What are those differences, and what are those similarities?
Such are the questions on which the Minister of Justice has
been requesting further information, for hc claims he is unable
to understand our approach.
Let us ignore the amending formulas provided for under
sections 47, 51. 52, 54 which do not cause any difficulties.
What is there that remains in the government’s project
concerning the search for and the development of permanent
amending formulas which would finally replace the rule of
First, there is the fact, and it is essential, that the proposed
resolution provides not only for one but two permanent amend-
ing formulas. The first is the one contained in section 46.
According to this formula, in case of a deadlock between the
federal government and the provinces over a proposed amend-
ment, Parliament will be in a position to get its own proposal
approved by way of a unilateral referendum even against the
wishes of the provinces. With regard to this formula we have
expressed our unequivocal disagreement. Section 46 and all
that goes with it should simply be deleted from the proposed
resolution. We categorically reject this type of amending
formula for the reasons that we have often stated.
This being said, let us now deal with the process through
which it is proposed to come to an allegedly more normal and
1836 SENATE DEBATES February 24, I981
less exceptional formula. The government proposal is quite
complex in that respect. It places us at least before the
following possibilities. Firstly, there could be some kind of
formula the content of which could be quite unusual provided
it has been unanimously agreed to over the two year period
following the enactment ofthe Constitution Act, 1981.
Secondly, it could be the formula contained in section 45,
namely the Victoria formula such as it stands or amended if
the provinces do not come up with a substitute formula during
that two year period. In passing, let us underline that the
Victoria formula of October 2 has been amended in commit-
tee. It could again be amended as was clearly indicated by the
We are not therefore dealing with a finished product. in
that regard the Victoria formula rates on the same basis as the
Thirdly, if the provinces do offer a substitute formula in the
two following years, that is to say at the latest some four years
after the enactment of the legislation, a referendum would be
used to choose between the federally sponsored or provincially
sponsored formula. Six months later the Governor General
would proclaim the formula chosen by the people.
That is how, honourable senators, and within which time
frame, the Canadian federation will finally give itselfa perma-
nent and normal amending formula according to the proposal
of the government. Shall we all agree to it? ls the procedure
simple, clear, specific? All things considered, supposing the
government proposal runs its course and the British Parlia-
ment sends us our Constitution sometime during I981, this
year, we would finally have an amending formula in the year
of grace I986 or thereabout! Until then, we would live under
the unanimity system.
In relation to the government proposal, how did ours com-
pare, which was submitted to the committee where it was
turned down without real discussion or dialogue because of the
constraints in time and procedure within which the committee
found itsclfconstantly bound?
Let us remember that we first proposed that the charter be
rerouted through the standard Canadian federal procedures,
that it might be adopted jointly by both levels of government
through the use of the amending formula agreed upon by those
same levels of government. That motion was defeated in
. We also proposed to substitute the Vancouver formula for
the Victoria formula. The motion was defeated.
We finally proposed to delete section 42 from the initial
proposal, which became section 46 in this proposal. The
motion was defeated.
According to the established procedure, all the conclusions
had been drawn as far as the Constitution Act, I981 was
concerned. Within the committee, the substance ofthat funda-
mental legislation could no longer be changed, and it would
come out of the committee without any other change.
How could we have all our proposals reinserted so that the
essential of our approach be respected, even on the assumption
that the whole government resolution would end up at
Only one way remained open: to split the process itself into
two stages and carry out the operation from the British
legislation itself: on the one hand by distinguishing between
the coming into force of the British act and the coming into
force of the Constitution Act, I981, something which the
government resolution does in some way; on the other hand, by
including in the British act, and therefore making them the
law in Canada, the conditions under which the provisions of
the Constitution Act, 1981, will come into force.
in so doing, our amendment to the British act had those
First, it deferred all substantial changes to the Constitution
that remained in the Constitution Act, 1981, until an amend-
ing formula was agreed to.
Second, it provided that such changes would be brought
about through that amending formula.
Third, the search for an amending formula had a one year
time limit after which the matter would have to be settled.
Fourth, it stated that thc consensus to be reached on an
amending formula should always be approved by the federal
government, but that a decreasing number of provinces, could
be involved, from all of them to a majority of seven represent-
ing a majority of the Canadian population, which amounts to
the majority required in the Vancouver formula.
Fifth, supposing that at the end of the year, the first
ministers conference would fail, either because of the federal
position or because of the provincial stand, to agree on an
amending formula, with respect to the minimum consensus
required, then our proposal would come to this conclusion: the
state of the country, the state of intergovernmental relation-
ships and re?ections have not reached the level of maturity
required to have a viable and acceptable formula. Therefore,
the proposal provided for a return to the unanimity rule, rather
than for having a referendum.
That is the overall alternative which we submitted to the
committee, and which was rejected by a majority vote. ls it
that difficult to understand‘?
For the minister to tell us that he does not agree with that
approach, l can understand that. But for him to state that it is
not understood by anyone, including himself, l can hardly
understand it. l am convinced, on the contrary, that he did
understand it very well. He understood very well that it went
to the heart of the matter, that it was a true alternative to the
government proposal, and that it would pass all Canadian
stages and would go before the Parliament of Westminster.
Surely Mr. Chrétien has understood that our amendment to
the British bill brings back to Canada all the effective and real
decision-making processes related to the fundamental changes
to the Canadian Constitution. ‘
Surely he has understood that the amending formula we
need for the future ought to be the object of consensus in
Canada between the two levels of government without any
recourse to the referendum.
February 24, 198i SENATE DEBATES 1837
Surely he has understood that between recourse to the
referendum in case of a deadlock and a return to unanimity we
would much rather have unanimity because it is a lesser evil
than a referendum where the people would have to decide
between two levels of government, a referendum which would
force Canadians to choose between two equally legitimate
allegiances in a context where, by definition, they would be
pitted one against the other.
Fifth, surely he has understood that the stages provided for
in our proposals-first try to secure unanimity, then accept a
majority of eight provinces representing 80 per cent of the
population, and finally go with a majority of seven provinces
including 50 per cent of the population-—would gradually do
away with the veto of the most densely populated provinces.
Sixth, surely he has understood that the impending possibili-
ty of a progressive disappearance of the veto of certain prov-
inces would improve the chances of achieving the required
majority among the provinces under the Vancouver formula.
Finally, surely he has understood that in a way our formula
was forcing the federal government to be the only one to object
to the Vancouver formula and that if we were forced to seek
unanimity it would be because of the federal veto, not that of
In short, Mr. Chrétien has understood everything. He has
understood very well that our proposal amounts to a genuine
and authentic alternative to the governmcnt’s resolution.
in the first place our proposal gives the central government
itself the possibility of breaking out of the deadlocks in which
its unilateral action and its own marginal transactions have
Secondly, our proposal enables the provincial governments
to break the deadlock where they also ended up by negotiating
patriation with substantive changes to the Canadian
Thirdly, our proposal enables the Canadian people to recon-
cilc their legitimate allegiances to both orders of government
without having to resort to the phoney and hazardous arbitra-
tion of a referendum.
Finally, our proposal saves everyone in Canada the humilia-
tion of making a foreign government the arbitrator of our
proceedings and internal conflicts.
The other day, Senator Austin pointed out that we had
experienced a historic moment. l readily agree that the pro-
posal before is of historic importance in the evolution of the
Canadian federation and that it will change the course of that
evolution if it is ever implemented.
1 am concerned, however, about the direction in which he
will guide it if it is finally adopted by the Canadian Parliament
and if it comes back from London without any major
It is not enough to change the course of history. One has yet
to know in which direction the change will be brought about
before rejoicing and hoisting the flags.
In this case, what is proposed to us is certainly nothing to
make a song and dance about. On the contrary, the project
before us would rather call for a black milestone to mark the
turn the Canadian federation would take with this government
The Minister of Justice stated repeatedly that after the
projected operation, things would not be the same again.
Of course, they will not be the same. We will no longer be in
a federal system with two levels of government being equal.
Originally, ll4 years ago, equality might not have existed in
strict legal terms, but an equality was set up in fact, in the
light of laboriously acquired experience, with the economic,
social and cultural changes which have taken place in the
Canadian context. On the contrary, ours will be a system in
which one level of government will clearly dominate the other,
a system in which the Canadian Parliament will dominate the
provincial legislatures, a system which will be established and
hallowed once and for all in all respects, notwithstanding the
sharing of jurisdictions and sovereignty equal on both sides,
according to these jurisdictions, which are the essential charac-
teristics of a true federal system.
That is the heart of the problem, the option the Canadian
federation always has had to face from the beginning, and
which the government project forces us to face more crucially
than ever before. Either the federal will dominate the prov-
inces; or the provinces will dominate the federal government;
or there will be a balance between the two levels of
Some people are all for the absolute dominance of the
federal government over the provinces; others intend more or
less consciously, more or less openly, to establish the suprema-
cy of the provinces over the federal. As far as I am concerned,
I advocate a balance between the two levels of government.
“The total is greater than the sum of its parts,” we are told,
and that is what is used to justify the preponderence of the
federal government over the provinces.
We hear this fallacy repeated so often that a brief word
about it is in order to show how false it actually is.
l am almost through. Please be patient.
Senator Frith: We are listening, not only’patiently but with
Senator Tremblay: Thank you for such courtesy, my dear
Of course the total is greater than the sum of its parts. That
is a truism.
But that has nothing to do with the kind of totality involved
in a federation.
Where is the “total” in a federation, and where are the
The “federative total” is found neither in the central govern-
ment or institutions nor in the decentralized legislatures or
institutions. The “federative total” is found in the federation
1838 SENATE DEBATES February 24, I98]
itself of which the centralized as well as the decentralized
institutions are parts.
Therefore if we opposed the centralized and the decentral-
ized authorities, as I intended to do last week, we are opposing
the parts as distinct from the “total” of the federation in which
they are combined and of which they form an integral part.
Consequently if more importance is given to the federal than
to the provinces, this is not to say that more importance is
given to the “federative total” but rather to one part over
This truism is self-evident if one considers the formula of
the “total greater than the sum of its parts“ in a federative
It is also a truism to define the federative problem as being
one of opposition between a strong central government and
weak provinces or of a weak central government and strong
It is not the provinces that should bc stronger than the
federal government or vice versa, but rather the federation
itself which should be stronger than either one. The antidote to
separatism is to be found in the overwhelming force, lying not
with the fcderal government nor with the provinces but with
the federation, in the reconciliation of the jurisdictions, the
federal and the provincial.
The forcc of the “federated whole“ lies not in the forces of
the jurisdictions pitted one against the other, but in the will of
all, both federal and provincial, to recognize themselves as
components of the whole and to act accordingly.
The proposal now before us institutes the absolute prepon~
derance of the federal jurisdiction over the provincial jurisdic-
tions. This is where it is fundamentally unacceptable because it
destroys the concept of the “federated whole”.
Such is the background before which this debate is set and
which reveals its true significance.
We have to choose between two concepts of the Canadian
federation and its future, two concepts advocated by two
Canadian Prime Ministers—-the Prime Minister now in office,
the Right Honourable Pierre Elliott Trudeau, and the Prime
Minister who preccdcd and will succeed him, the Right I~Ion~
ourable Joe Clark. And between two styles of fedcral~provin-
cial relationship, two ways of defining the federal role within
the Canadian whole. ‘
We have to decide whether we shall preserve the Canadian
federation’s authentically federative character or whether we
shall set it on the course of an increasingly abusive
We have to decide whether chronic confrontation instead of
consultation between the two levels of government will become
the rule in their relations.
Finally, we have to decide whether the federal government
will continue to play the part of guardian of provinces regard~
ed as minor governments, of manager of their dependency, or
whether it will try to build a federation out of the new
[Senator Trcmblay.] ,
maturities which developed throughout the country, to bring
them into line rather than constrain them.
Honourable senators, those are the questions we shall have
to decide. God help us make such a serious decision.
Hon. Eric Cook: Honourable senators, I will be speaking for
approximately 20 to 25 minutes. Do you wish me to proceed
now or take the adjournment?
Some I-Ion. Senators: Continue.
Senator Cook: Honourable senators, it is, of course, my
intention to consider carefully all the views of senators who
take part in this debate, but I doubt that I will be persuaded to
vote in favour of the resolution.
I am opposed to the resolution because I am opposed to the
federal governmcnt’s unilateral action notwithstanding the
disapproval of the majority of the provinces and the majority
I quote from a recent editorial in the Financial Post of
Toronto which describes the legal situation in few but very
The changes to the constitutional bill proposed by
Justice Minister Jean Chretien leave unaltered the basic
flaw in the federal governments constitutional policy~~
the determination to act in defiance of Ottawa’s sovereign
federal partners, the provinces.
However, I am also very much opposed to the contents of
the resolution. In this connection it is not correct to say that
the Trudeau government has a mandate from the Canadian
electors to enact a measure which requires Parliament to
abdicate many of its powers and responsibilities, and to pass
these powers and responsibilities over to the courts.
I quote from Professor Peter Browne, a distinguished
member of the Department of History of Carleton University:
Most of the witnesses before the Special Joint Commit»
tee on the Constitution concentrated their criticism on the
provisions of the proposed Charter of Rights. As a result,
some of the ambiguities, contradictions, restrictions and
omissions have been identified, and may be remedied.
What has still not been adequately discussed, however, is
the underlying question of whether the ultimate responsi-
bility for defining otir basic social values should be trans-
ferred from the federal and provincial parliaments to the
There are, indeed, many good and sincere people who seem
to feel that ifwe have a Charter of Rights, and pass over to the
courts the duty and responsibility of enforcing and interpreting
it, this will prove to be a panacea, a universal remedy or cure
for all our ills. Furthermore, they feel that the Charter of
Rights must be placed beyond the power of Parliament, a
legislature or the elected representatives of the people to repeal
or amend. Those who subscribe to this theory argue that the
court can and will do all that is necessary to protect and
safeguard all our rights. Will this indeed be the result?
February 24, I981 SENATE DEBATES 1839
The last time there was a case before the Supreme Court of
Canada dealing with human rights under the Constitution was
in the year i928. At that time the Supreme Court of Canada
was asked to decide the meaning of the word “persons” in
Section 24 of the British North America Act, and whether
“persons” includes women. The court ruled unanimously, with
not one dissenting voice, that “women are not ‘qualified per~
sons‘ ” within the meaning of Section 24 of the B.N.A. Act,
1867, and, therefore, were not eligible for appointment by the
Governor General to the Senate of Canada.
Did the court endeavour to re?ect public opinion in 1928,
and did it look to the future in order to decide this question, or
did thc judges look to the past to find some legal precedent on
which they could hang their hats? Did they look at the state of
public opinion in 1928, and did they endeavour to decide what
should be the best decision for the future? A reading of the
judgment indicates that they searched the past. and Chief
Justice Anglin quoted with approval the words of Lord Esher
of England, spoken in i889.
Lord Esher had quoted with approval the words of Mr,
Justice Willes, which Mr. Justice Willes had written in i868,
l take the first proposition to be that laid down by
Willes J., in the case of Charlton v. Lings. I take it that
by neither the common law nor the constitution of this
country from the beginning of the common law until now
can a woman be entitled to exercise any public functions.
Willes J. stated so in that case, and a more learned judge
In view of this record, why should we think that the courts
will be pioneers in safeguarding human rights?
Fifty-four years ago l became a law student, and one thing I
have learned for certain during that long period is that judges
are often traditionalists but are not often reformers.
This is, of course, only one important reason why I think it
is very unwise to legislate a Charter of Rights and put the
provisions of the charter outside and beyond the powers of
Parliament. It will be all too easy forcases to occur, concern~
ing the human rights of our citizens, to have learned judges
disputing among themselves as’to the true meaning and effect
of the Charter of Rights, and unfortunately the judges will
look to the past for guidance and not to the future for
inspiration; and if we follow the suggested course of enshrining
the Charter of Rights, neither the federal Parliament nor any
provincial legislature will have any right or power to pass
corrective and amending legislation.
. (2210) V
Fortunately, the women’s rights case had a happier out-
come. The judgment was appealed to the Privy Council in
London and the court held:
The provisions of the British North America Act, i867,
enacting a constitution for Canada should not be given at
narrow and technical construction, but a large and liberal
interpretation, so that the Dominion to a great extent, but
within certain fixed limits, may be mistress in her own
house, as the Provinces to a great extent, but within
certain fixed limits, arc mistresses in theirs.
Honourable senators will note the words “so that the
Dominion to a great extent, but within certain fixed limits,
may be mistress in her own house, as the provinces to a great
extent, but within certain fixed limits, are mistresses in theirs.”
That has been the clear, undisputed constitutional law for
over 50 years, and is the law of Canada today; and no matter
how the constitutional lawyers of the federal government
argue the issues, the temporary occupant of the federal house
cannot break and enter the houses of the provinces, nor has the
mistress of the federal house the power to take over the control
and command of any provincial housc.
Many thoughtful Canadians are opposed to Parliament
abdicating its powers and privileges to the courts through the
enactment of an entrenched Charter of Rights. On the other
hand, many thoughtful Canadians strongly favour the intro-
duction of a Charter of Rights. Therefore, we must ask
ourselves, is there a middle course which will satisfy both
groups of sincere thoughtful Canadians‘? I think there is. I
again quote from Professor Browne as follows:
To consider the matter from another standpoint, the
critical choice we have to make is not, as the federal
government imply, between a Charter of Rights that is
merely an “ordinary” statute and one that is
“cntrenchcd,“ but between different ways of entrenching
(or better, “enshrining”) a Charter. In fact, there is
another way ——a way that would not produce a regime of
judicial supremacy, that is quite compatible with parlia-
mentary government, and that seems much better suited
to the institutions, practices, traditions, experiences, atti~
tudes, needs and aspirations of Canadians.
This way would accord the Charter of Rights a “priori-
ty status” (that is, a “parainountcy” or “overriding
authority” in relation to “ordinary” statutes). Such a
status could be ensured by various devices, one of which
would be to give the Supreme Court a new responsibility:
instead of only having to decide, as it now does, whether
an impugned law fell within federal or provincial jurisdic~
tion, it would also have to declare, as it has been reluctant
to do, whether that law infringed the Charter of Rights.
l-lowever——~and this would be the crucial difference be-
tween our system and the Americanwcvcn if the Supreme
Court were to declare a law contrary to the Charter, that
law could still be passed, providing certain requirements
As a way of both effectively curbing our parliaments
and preserving their ultimate supremacy, a Charter of
Rights with “priority status” might scrve to reconcile the
judicial and parliamentary supremacists, and so lead to
the consensus that is indispensable for major constitution-
Professor Browne goes on to say:
It will doubtless be objected that a Charter of Rights
with “priority status” does not afford a sufficient guaran-
I840 SENATE DEBATES February 24, 1931
tee of fundamental, and especially language, rights. So
long as there is any possibility of a parliament “opting
out” of the Charter, certain groups will not feel them-
selves adequately protected, whatever their actual situa-
tion might be in law or practice. Those who argue this
way should take a hard look at the federal govcrnment’s
alternative. Are they really willing to allow our basic
moral values to be ultimately defined, not by our elected
and accountable representatives, but by nine appointed
judges~—who are largely chosen by the federal govern-
ment, if not the Prime Minister, and who are not, like
their American counterparts, subject to the scrutiny and
approval of an elected body representing both the people
and the provinces’! Are they also prepared to chance the
possible consequences of such an extreme transfer of
legislative responsibility—a further politicizing of the
Supreme Court, an increasing doubt as to the impartiality
of our judges, a diminution of confidence in our legal
system, a decreased respect for the Rule of Law, a
reduced role for our elected representatives, an inferior
status for our parliaments, a dwindling participation in
the policial process, and the effects of all these changes on
our sense of community, not to speak of national unity?
That concludes my quotation from the work of Professor
Browne. I am sure I speak for all senators when I say “thank
you” to him for his thoughtful analysis of the effect of
entrenching the proposed Charter of Rights.
Some Hon. Senators: Hear, hear.
Senator Cook: Honourable senators, the constitutional
debate that is taking place in Canada can prove to be a very
valuable and worthwhile national asset. It is late, but not too
late for the government to adjourn the parliamentary debate
while a first minister‘s conference is reconvened.
Some Hon. Senators: Hear, hear.
Senator Cook: All Canada’s first ministers should once
again gather round, not the bargaining table but the confer-
ence table, and certainly at first debate in camera, seeking an
honourable and reasonable compromise.
In view of the great debate that has already taken place, and
the work of the joint parliamentary committee, there does now
exist a real probability that a consensus, or, if not a full
consensus, a much greater measure of agreement, can be
reached on an amending formula and a Charter of Rights
which can be accorded “priority status”. Who has the right
now to say in advance that a further meeting of first ministers
must surely fail‘? Who has the arrogance to predict the future
in such a negative way?
In closing, I will say a few words about the increasing
tendency in Canada to tell the British what they must do and
how they must behave. Our Secretary of State for External
Affairs warns that grave consequences will follow if the Parlia-
ment at Westminster docs not do what he tells them to do.
Senator Flynn: They must be trembling.
Senator Cook: I don’t know if this frightens the British, but
it sure does frighten me. “Grave consequences” can be a
two-way street. If Canada has the power to punish the United
Kingdom in one way or the other, the reverse also applies.
Before our Secretary of State for External Affairs warns Great
Britain of grave consequences, I trust he is fully satisfied that
Canada will not suffer from any course of action he decides to
follow. So I say to the Secretary of State for External Affairs:
Please, please be more moderate and do not threaten so
Also, I have to point out to Prime Minister Trudeau that
there arc many Canadians who still have a deep affection and
regard for the British, and we do not appreciate Mr. Trudeau’s
quite uncalled for rudeness. This conduct might ensure that
Mr, Trudeau will get attention in the media, but he does not
speak for many Canadians when he seems to try to be rude
and to browbeat Westminster.
So I say to the Prime Minister: Please, please, speak more
kindly, out of respect for our feelings, if not for the feelings of
Many other parliamentarians in Canada are offering very
positive and very arrogant instructions, if not issuing com»
mands, to the Parliament at Westminster. It is all very well to
speak of parliaments, but in the final analysis parliaments are
made up of men and women, and in my opinion it is not
reasonable to demand that honourable men and women have
no option but to vote blindly for any measure, without even
considering either the results or the rights and wrongs of the
If Mr. Trudeau requires the Parliament at Westminster to
take legislative action to give these constitutional amendments
the cloak of legality, it is indeed arrogant to forbid these
members of Parliament the elementary right to debate, exam-
ine, and, if deemed right and proper, to reject the measure.
Apparently, if the heretofore friendly Parliament at West-
minster claims its normal rights and privileges, which are to
examine any measure laid before it, then it will now do so
under a new threat; that is, the threat of the unilateral
declaration of independence of Canada. Of all the nonsense
that has come out of the constitutional debate, this is the
greatest nonsense of all.
The Imperial Conference of 1926 formally agreed that the
self-governing dominions—that is, Australia, Canada, the
Irish Free State, Newfoundland, New Zealand and the Union
of South Africa—— were “autonomous communities within the
British Empire, equal in status, in no way subordinate one to
another in any aspect of their domestic or external affairs . .
In 1931 this agreement was enshrined in the Statute of
In view of the provisions of the Statute of Westminster,
from whom do we declare independence’? From Australia?
From New Zealand? From the Irish Free State?
Despite all protestations to the contrary, this is not a request
to the United Kingdom to send the Constitution to Canada. It
February 24, l98l SENATE DEBATES l84l
is a request to make substantial amendments to the Canadian
Constitution in the United Kingdom, notwithstanding serious
objections to the proposed amendments by and from “Ottawa’s
sovereign federal partners, the provinces“ and from the popu-
lation of Canada. There is no precedent which can be invoked
or stretched to support this unwarranted request.
I feel con?dent that all this bluster, all these threats arise
from weakness. They arise from Mr. Trudeau‘s perception that
his resolution lacks sufficient merit to pass on its own. There
would be no need for it if we were sending over to the United
Kingdom a straightforward resolution, requesting——as, of
course, is acknowledged by all, both in the United Kingdom
and Canada, to be our constitutional right—an amendment
sending the Constitution to Canada. Nor could any reasonable
objection be made to Canada’s requesting the United Kingdom
to make one amendment to the British North America Act in
the form of a reasonable amending formula which had the
blessing of a reasonable consensus in Canada. For us to adopt
the attitude, however, that the Parliament of the United
Kingdom has to pass blindly any “dog’s breakfast“ we send
over is neither reasonable nor rational.
I would agree that the U.K. Parliament should not
endeavour to amend or improve any measure we send over, but
I most firmly believe that any independent or self-respecting
parliament can certainly reject it. To put the case clearly,
suppose our Charter of Rights contained provisions repugnant
to human rights. Must the United Kingdom pass that? Of
course not. The answer would be, “Pass it yourselves, if that is
what you want; but we will not.” However, if it may be
rejected because it lacks merit, it may also be rejected because
it lacks a reasonable degree of support, because it is being
imposed by a minority of sovereign partners on a majority of
sovereign partners, and by a minority of the population on a
majority of the population.
How can anyone criticize the British if they say, “If you
don’t speak with one voice to us, then in heaven’s name take
the B.N.A. Act and amend it yourselves. We want no part ot
Speaking for myself, in my view no one has the power or the
right to tell me how to vote, particularly on such an important
and far-reaching matter. Furthermore, I am not so arrogant
that I claim for myself a right I would deny to the honourable
ladies and gentlemen who are members of the British House of
Commons or to the lords and ladies who are members of the
British House of Lords.
I frankly expect that all these absurd comments will be
counterproductive, and l anticipate with complete confidence
that if the resolution does reach London, unaltered and still
lacking the support of a reasonable consensus, then the Parlia-
ment at Westminster will act honourably and wisely.
Senator Flynn: Have you no defenders’! I-Iave you nothing to
say on your side’?
Senator Frith: In due course.
On motion of Senator Macdonald, for Senator Fournier,