Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Debate Continued” (26 February 1981)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 1868-1881.
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DEBATES February 26, I981
MOTION FOR AN ADDRESS TO HER MAJESTY THE QUEEN
The Senate resumed from yesterday the debate on the
motion of Senator PcrrauIt that an Address bc presented to
Hcr Majesty the Queen respecting the Constitution of Canada.
Hon. Royce Frith (Deputy Leader of the Government):
Honourable senators, pursuant to what we might call thc
“Roblin formula”, is it agreed that we now proceed to Order
No. 4? If Senator Roblin does not want to accept the credit for
it, then I will.
Senator PerrauIt: The “Flynn initiative.”
Senator Frith: Is it agreed that we now proceed to Order
Hon. Senators: Agreed.
Hon. Heath Macquarrie: Honourable senators, I appreciate
this invocation of the “Roblin formula.” It may be a hazard-
ous formula, and referred to as such only this once.
As honourable senators may know, or at least one or two
may recall, I have spoken at an earlier stage of this constitu-
tional discussion—that is, when we were considering the estab-
lishment of the special joint committcc on November 3. I will
not, of course–—bccause it would be unparliamcntary, impolite
and rather stupid-repeat anything I said in those days, and
because I assume they will all be remembered. The one thing I
will not guarantee, however, is how long I will speak.
Senator PerrauIt: Is that your speech on the desk’!
Senator Macquarrie: Yes, those are my rough notes. Since
that event of November 3, some new clement has entered into
this procedure. The other clay I read that one of the joint
chairmen of the joint committee told the prcss that the parallel
debate is expected to be shorter and more peaceful in thc
Senate than in the House of Commons. The committee joint
chairman, Senator Hays, said, “Our people are pretty well in
favour of the package and, seeing that we are a long way from
the bathroom facilities, and considering the age of those in the
opposition, we will whip them pretty fast.”
That causes me to be careful. I look at poor old Senator
Nurgitz over there; I look at this decrepit seatmate of mine,
Senator Balfour; and thcn. of course, upon the venerable
Senator Murray, and I wonder in what kind of a group I have
been placed, considering, as I must, that we must facc that
bcardless youth, Senator Hays, over there! His comment may
have been interesting, but it was not particularly elegant and I
am not cvcn sure it will go down as dry humour. However, in
case there is some organization, some Hays’ office which gives
credit to members who can sit in the chamber for long periods
of time, I should like it to be recorded that I have been here
now for 78 minutes waiting while my diligent colleagues
sought-in vain, mostly, may I saywto get an intelligent
response from the government. I have at least one bar to
whatever medal I may rcccivc from Senator Hays.
However, even more important than this situation, which is
not always trifling, I wonder if we should not carefully re?ect
on what has happened, not only since my momentous speech,
but since this Constitution debate, in its early phase, began.
What has taken place in the intervening weeks? Arc thcrc
developments upon which we can reflect which might change
the attitude, not only of myself but of other Canadians and of
senators and members of the other place?
A good deal has happened since November 3, honourable
senators. The committee was duly established and it will be
recalled~and I do not wish to be chnuvinistic or boastful, but
we must rccall, in fairness, that this sidc of the house, this
small group of gallant senators, did help in the formation of
that committee, its composition, and its procedure. This group
was effective, and it is to its credit that it was.
Some Hon. Senators: Hear, hear.
Senator Macquarrie: The govcrnmcnt reversed itself and
allowed TV cameras in to permit the people of Canada to sec
the proceedings. They did observe in great numbers, and that
is to the credit of the Canadian pcople and perhaps to the
surprise of some politicians. I believe the ratings were vcry
goocl–»»-asomc were stars.
While waiting for another speaking engagement in Char~
lottetown a few wccks ago, I turned on the television to see my
parliamentary brothers. I saw my good friend, the Honourable
Brycc Mackasey, during one of the wrap-up SGSSlOnS-‘——aS
Senator Trcmblay will remembcr—-speaking about the fact
that he had never served on a joint committee before and had
never tackled thcsc probiems of parliamentary matters with
members of the Senate. He said that the people of Canada
were very fortunate to have the parliamentarians from this
particular body. He said that one aspect of constitutional
reform he had abandoned after his experience on the joint
committee was the suggestion of a reformed or aItered Senate.
I was very glad I had that few minutes to watch bccziusc I
agreed with him 100 percent.
I must pay tribute to the members of the joint committee. It
was a major service that they rendered, and an onerous duty
that they performed. Senator Trcmblay, magnificently well
versed, brilliant in his exposition, combined not only the status
of a great parlizimentarizin but also a magnificent resource
person in the one being. Senator Roblin, an outstanding pro-
vincial premier, as he is now an outstanding national legislator,
served on the committee. Senator Asselin, a friend of mine for
many years, very knowledgeable about the country, about the
world, in particular his own province, also served on that
committee. I am not suggesting that only the three Conscrva~
tive senators were performing well, but I do have a partiality
for them. There were excellent performances by other mcm~
bcrs and I, as one who was on that committee, aIthough not
very often, thought, Calvinist though I was and am, that it was
a tremendous burden that thcsc permanent members bore.
There were endless, long meetings and, sometimes, I would
say, tedious meetings.
February 26, I981 SENATE DEBATES I869
Because of the good manners and the good procedures of the
committee, the night Honourable Angus MaeLean presented a
most excellent, reasonable and helpful brief, I had the honour
of asking the first question. All the sessions which I was able
to watch on TV or in person made me very proud of our
people, our Senate and the House of Commons.
These three were supported by those of us who were invited
from time to time. I remember one particular day when the
Conservative staff were so concerned that our strength be
maintained that Senator Yuzyk and I figuratively landed in
the same chair. There was no serious incident, but we all
agreed that the committee was magnificently manned that
day! It had supernumerary strength.
Our leader, Jacques Flynn, was supportive and inspirational
throughout. Behind it all, there was someone else from my
party who gave strength and direction. He has given it not only
since November 3 but since this matter was first brought, in its
new form, to the Canadian people by the Prime Minister. I
refer to a man who is often underestimated, and examined for
trifling things and overlooked for major things. I am speaking
of the Right Honourable Joe Clark, the Leader of the Official
Some Hon. Senators: Hear, hear.
Senator Maequarrie: Those in this vain profession of politics
do not like to confess the slightest portion of fallibility, but I
was concerned that the leader of the party, Mr. Clark, was
being a bit too strong in the position he took in October. I did
not think he was wrong, but I thought perhaps his emphasis
was a bit strong. I have been proven wrong and he has been
proven right, because what has happened in the intervening
months has shown that his perception was sound. We used to
read that one of the most important people in all this was not
the Prime Minister of Canada or the Minister of Justice, but
the Premier of Saskatchewan, that he was uniquely qualified
to be a catalyst and an outstandingly perceptive interpreter,
and that his support was absolutely the sine qua non of a
Senator Frith: We used to say the same thing about Judas.
Senator Macquarrie: He troubled himself for months, from
Regina to Ottawa to Honolulu, This Hamlet of the prairies
took month after month, almost a full gestation period, to
come up with something. He came up with the exact view
which the Right Honourable Joe Clark arrived at after 90
minutes of consideration in October.
Some Hon. Senators: Hear, hear.
Senator Macquarrie: I will not criticize the Premier of
Saskatchewan because I do not know him at all. Therefore,
how could I dislike him. Also, he is a maritimer so he cannot
be all bad. However, I have noticed that there is a great deal
of foolish image-building taking place. I wonder if he might
not be an example.
But more important than the conversion of the odd Saul as
he traipses along to Honolulu instead of Damascus is what has
happened to the people. I am one of those Conservatives who
reads the Gallup polls, usually with a great deal of pain and
always with a bit of fear. However, I see that now the public
opinion polls are also reading the issues as did the Leader of
the Opposition. That fact should be entered into the evaluation
of who today is significant, who is indispensible and who, in
fact, is possessed of the qualities of leadership.
It has been a long process, honourable senators. There has
been a muItitude of briefs and a variety of suggestions. But I
still wonder, and I say this with trepidation in the presence of
hardworking committee members such as I see here—Senators
Lamontagne, Roblin and Tremblay—whether, in fact, even
yet, there was enough examination, enough discussion. I am
not a father of the church so I have no right to ask for
confession, but if I asked how many senators here read every
word of the briefs, would I have an overwhelming crowd
saying yes? If there were. I would not be in it because I did
miss one or two paragraphs.
Despite the dedication of the committee, their hard work
and the changes-I-and some of them are probably improve-
mcnts-are we really through? Is the job done’? Have we
analyzed and scrutinized or reflected sufficiently? I heard my
old friend, Senator Denis, speak the other night. I have a great
regard for him because he very often hits the nail on the head.
I know that he feels that people have had enough and would
like to get it over with. That is a human reaction. If I could
ever get to the stage where I would never hear the foolish
words “the feds” again, I would be very happy. It is a most
disgusting expression which now fills the mouths of our press-
men and sometimes our politicians. There is that tendency.
However, if we were to think a little more on the matter, I
believe we would conclude we have not, in fact, finished the
job. I am not suggesting that the committee did not discharge
its mandate; I refer to the job of the country. I thought from
the beginning, and I am more convinced than ever, that we
should send nothing over to the United Kingdom but the first
page or two, and that we should ask for nothing but repatria-
tion, which is the proper word, and an amending formula. I
have thought all along that these other inclusions should be
left here, and that they require more profound, serious and
It has been my view, and I do not know who else has had the
same view, that somewhere along the line we should have
turned this matter over to a constitutional convention and
allowed the government to make an effort to govern. We
should have put this matter on the kind of process which we
once used in the old days, when it was safe to throw out the
expression “royal commission”. But a constitutional conven-
tion would be mueh more important, much more carefully
structured and much more thorough in its job.
I do not believe that we have finished. Am I the only one
who hears murmurings of dissatisfaction? Are the native
people satisfied with regard to their interests, their claims,
their anxieties and their fears‘? They are not. How is it viewed
in the Province of Quebec‘? Outside the federal Liberal Party,
I cannot find people there who say that this has been well done
DEBATES February 26. 1981
or that the essential values of that province have been looked
at, guaranteed or indeed properly understood.
Just the other day the St. Thomas Aquinas Society
expressed the concern of the Acadian people, andIam sure
that my colleague, Senator Fournicr, knows that very well.
Today, a spokesman for the francophones outside Quebec
expressed concern and dissatisfaction. And needImention
what the women said with great clarity and very definitely?
Do we have to confine ourselves to these select groups‘? The
six opposing provinces were joined today by thc seventh most
scnior province of them all, Nova Scotia, which had the first
legislative assembly in this country.Icannot exactly describe
the position of Saskatchewan, but it is ccrtainly not for this
package. The premier of that province is certainly among the
premiers who are the nay~sayers. Eight out of l0 provinces
certainly strikes me as a fairly formidable negative expression.
So there is reason for pause, for thought and for the people
to ask: Despite all the hard work of these very fine people, is
the job done? Do we put on a forced draft and closure in
certain places and rush that thing over to the United Kingdom
so thcrc is some personal satisfaction for some individual?
But more important even than the premiers is the public. As
I read and try to understand the samplings of Canadian public
opinion,Imust conclude that the people of Canada are
rcpcllcd by the processes which have been put in vogue to
bring about a Constitution for this country. It is small wonder
that the Prime Minister of us all, the leader ofall the Canadas,
invokes a highly unappealing suggestion when he says, “Let
them hold their noses and take it.” Is this a great occasion on
which to build a new Canada‘! Is that an atmosphere through
which we pass’!
I hear people talking about it bcing an historic occasion.
There have been some fine speeches and some exceptionally
fine speeches, but not all the oratory from Demosthenes to
today can make of a bad situation a glorious occasion. Why
are we here? Why is the public negative? Why are the other
jurisdictions distressed? It is simply because a few very basic
and early detected things have continued.
None of the reasons for this attitude comes as a surprise.
They are very simple. They have been talked about with
strength and with vigour and with clarity. There should be
nobody in the country surprised. First, of coursee~m0re poig-
nant today than when the debate began but clearly there when
the debate began-—is the usurpation of authority by one level
of government in areas which are not its alone. It is as clear as
crystal. That is the reason.
Some Hon. Senators: Hear, hear.
Senator Macquarrie: It may be quaint for mc to mention
the British North America Act, but I do. It did certain things.
In 1867 the British North America Act gave the provinces the
right to amend their constitutions, saving one thing, and that is
the officc of the lieutenant governor. The federal authority
suffered for a good many years before it had an equal right,
and it was not until I949, B.N.A. Act No. 2, that the federal
government received the right to amend its Constitution in
those matters which were clearly and exclusively federal.
Young though I was,Ican remember vividly Prime Minister
St. Laurent talking to the people on radio. He said it was as if
there were two families living in two apartments under one
roof. Hc did not say “in a duplex,” because that was not a
term in vogue then, but he said “living in two apartments
under one roof.” He said that one had the right to make any
redecorations or alterations it liked without any consuItation,
while the one adjoining had to makc consuItations and had to
check with the landlord. lle said, “We have straightened out
that anomaly. We have made them equal in that regard.”
So as of i949 the federal authority has the right to what is
exclusively federal; since 1867 the provincial authoritics have
had the right to those things which are exclusively provincial.
Clearly and definitely, without having to be an LLD or a
bachelor ofjurisprudence to perceive it, what is left is shared
by the two, and neither the provincial nor the federal can
unilaterally move into those which are left. And thcrc are a lot
left. Of course, there are a lot left. In a federal society and a
dynamic society there are bound to be a lot left, and when you
find one level of government moving in on those, naturally,
trouble is bound to follow.
It is not only the lawyers who can soc where we are today.
This failure to recognize, or, perhaps putting it more bluntly,
this unwillingness to admit, has caused our anguish; has
brought about stalemate. Would any Canadian be happy to see
thc provinces taking the federal government to court‘? That
would be an invidious situation.
I am not one of those who believe the provinces are supreme.
I am not a bleeding~heart provincial~rights man at all. But
more important than anyone‘s preferences is the prcscrvation
of the federal state, which requires two jurisdictions recogniz~
ing each other’s right to hold thosc jurisdictions.
Hon. Senators: Hear, hear.
Senator Macquarrie: That is the thing. In the face of this
tension, this disruption, what, surely, is the role of the leader of
a federal government? Is it to make these matters worse or is it
to assuage them, to diminish the tensions? Which, now, of
thcsc courses would be the more likely, if he wanted to build a
strong, united country‘? To ask the question, immediately
dictates the answer.
But our trouble today is that the person with the most
authority has exactly the opposite idea. Hc docs not want to go
down in history as the great conciliator. He wants to be, and is
being, the great exacerbater.
Don’t ask for my interpretation. Senator Olson was talking
about interpretations, butIwould not presume to interpret the
Prime Ministcr of Canada.Igo to what he himselfsaid.Iread
from an article by lain Hunter, Citizen national editor. This
article appeared in the Citizen on February 20:
Prime Minister Trudeau admitted Thursday he is divid~
ing Canadians by pushing through his constitutional
FEBRUARY 26, l98l SENATE DEBATES 187]
He‘s not sorry about it, he declared-——in some cases he
finds it “exhilarating.”
Trudeau told more than 200 cheering Liberal support~
ers that if the country breaks apart in five or S0 years
because of his unilateral action to patriate the constitution
with an entrenched charter of rights and his own amend-
ing formula, “then I say it wasn‘t worthy of living another
Trudeau also said he would “relish“ an election on the
constitutional issue after patriation in one to four
years . . .
He boasted he had “managed to split” both Conserva-
tives and New Democrats in the Commons “down the
middle“ on the issue.
Down the middle!Ithink in the House of Commons there are
102 Conservative members, and one has voted for the package.
Now that is the middle. But is “relish” what we want‘)
“Relish” and “division“‘.
Honourable senators, let us reflect on that. is that the role
of the Prime Minister? It is, of course, up to the Prime
Minister to enjoy what he likes; to have his views. He is a man
who has already made his mark in history. There is no doubt
about that. History, of course, will make its final appraisal of
him, on how at this crucial time he measured up. AllIcan say
is that I am glad that in the formative years of this country
John A. Maedonald had a different view from that. His idea
was that you diminish these differences rather than exacerbate
them. And he was called the great conciliator.
I cannot find in history any great leader of this country, in
the Dominion, who found divisiveness exhilarating» -or, if he
did, he didn’t say so. Our leaders believed that in their role as
Prime Minister of the whole country they had a special
responsibility for holding that country together. In that, these
former Prime Ministers were far closer to St. Ignatius, the
Bishop of Antioch, who said, “Shun divisions as the beginnings
of evils.” That is just to show you that a Presbyterian can toss
out the odd saint front time to time. I don’t want to start a
theological argument, but it was the Bishop of Antioch, Sena-
tor Roblin. You are correct.
Now I would like honourable senators to know-and it is
not for Senator Itays‘ reasons—~that I will not lay about on all
the issues I can think of, but the second one of immense
importance to me is that in what might appear as a seemingly
contradictory thing, that having usurped the authority of the
provinces in their legitimate fields, the same government has
done quite the opposite in a contradictory turn, having laid
upon the British government and Parliament unwanted respon-
sibility, giving them a far greater role than they desire or
deserve, or possess in fact.
From the very beginning~–~and that is the one thing I do
repeat from November 3, because the attitude has not
changed»-~from the very beginningIfeIt humiliated that
another Parliament was doing what should be done in the
parliamentary institutions of my country. That must hit any
thoughtful Canadian as the first and most undesirable aspect
of the whole operation. In our free and sovereign country we
have a foreign Parliament doing what they wouldn’t do in
1868, and being asked to do it by our government.
Shame,Isay! Shame! I was humiliated before and now I am
burdened by vicarious shame. It is not enough to have my own
country torn by strife, region against region, province against
province; rancor increasing, disagreement abounding. We have
to carry that on to the international scene now. and be seen as
fools by the international community.
What an exercise we are going through in this process. ls
anyone in Canada proud of all this leaking of documents‘? The
leakage would make Niagara look like a timid stream. If you
are leaking all over the place, at least the sprinklers arcn’t
working and probably something else is far worse. Contradic»
tion after contradiction. Somebody laying blame for what
some other fellow did not say in a secret document, and then
someone exposing what he said to someone else who did not
say it. Someone going across the Atlantic this way, and
someone going across that way. “We did say it.” “We did not
say it.” “We only talked to her for seven minutes. and made it
How degrading! How embarrassing! Two great sovereign
countries going through a tangled web like this. Confusion
upon complexity! Complexity upon a morass of indignity! All
this in the name of achieving a certain document by a certain
Of all the weird episodes in this affair, I think that the one
involving the British High Commissioner, if not the most
importantmwhich it may not be—is clearly the most ridicu-
lous. What a furore!Icannot talk about what goes on in the
other place, but that is not going to stop me from talking about
what I read in the newspapers and see on television. I read and
watch the media, and with respect to this matter what an
awesome storyIsaw unfolding.
Two members of a certain political party go to Rideau
iriail?usually a harmless place and a fine place—-to a skating
party, where, we hear, they talk to an Englishman, who later
indicates he is, in fact, the British High Commissioner. He
talks to them. Then these members report to their leader. They
go right to the top on a matter of this seriousness. The said
leader goes into action right away and also goes right to the
top. Ile goes to the House of Commons and talks to the
Secretary of State for External Affairs. “Take note of this very
serious thing. This Englishman, who is actually the High
Commissioner, has actually sought to influence these two
And what happens‘? instead of being laughed at, in good
humour, as we would do in this place, an investigation of this
serious piece of conversational imperialism is ordered. The
fearful apparatus attendant upon a state inquiry goes into its
Senator Flynn: The fighting Secretary ofState!
DEBATES February 26, 1981
Senator Maequarrie: Then the verdict is handed down—- not
too long after, a bit faster than usual. There is no declaration
of war, no severance of diplomatic relations, but what head-
lines this bit of conversation causes to emerge.
‘Beyond’ normal role: British envoy‘s knuckles rapped for
External Affairs Minister Mark MacGuigan pro-
nounced British High Commissioner Sir John Ford guiIty
of interference in Canadian domestic affairs Monday but
let him off with a suspended sentence.
There were, you see, honourable senators, extenuating
—~-because the high commissioner is scheduled to retire in
a few months anyway.
What headlines! What foolish degradation! What hyperbolic
poppycock the whole thing was!
I am not here to comment upon these men, who felt
themselves to be intellectually assailed and their honour
exposed at the skating party, which was clearly one of the most
dangerous social episodes since Aunt Dinah‘s quiIting party.
Anyway, they were all upset.
I am not going to hold myself up as an example, but in my
early days here, as a little lad from Prince Edward island,
when all of you were very young,Inever really feIt endangered
on the diplomatic circuit. We know that diplomats are sup-
posed to be diplomatic, but they do not really make much of
an impression if they confine themselves to banalities and
comments about the weather. I, perhaps wrongly, thought it
was something of a compliment if an ambassador or a high
commissioner extended to me the courtesy of his candour, to
whichIthought the response was supposed to be confidential-
ity, and that in that way you might learn something. Perhaps I
was living in a fool‘s paradise. PerhapsIwas being intellectu-
ally plundered and did not know it.
Now, I try never to be one-sided in my criticisms. I think,
with all due respect, that the British High Commissioner was
ill-advised to confuse the issue further by holding a press
conference, andIthink his own government was either absent-
minded or a bit stupid to choose that particular moment to
announce the name of his successor. That added to all the
foolishness that was going on at that time.
it is a bizarre situation.I almost expect from time to time,
to see a press conference given by the Duke of Plaza Toro,
since this is clearly Gilbert and Sullivan, if not Lewis Carroll‘s
Alice in Wonderland. Perhaps some good Canadian, some day,
if he writes a dirty enough script, might get a Canada Council
grant for it, and will do something with it along those lines. I
do not suppose that what who said to whom at that skating
party is at all important. As old as I am, whenIgo to that
skating party at Their Excellencies’, I tend to skate, and that
surprises many there into lack of speech. I do go, though.
But what is significant here, honourable senators, is that a
government would take this eharadc and erect it into the status
of international, intergovernmental communication. That is
What have we in this country’? This country, a charter
member of the United Nations, as it was of the League of
Nations. Can we imagine our former Prime Minister, Sir
Robert Borden, the godfather of the CommonweaIth, in the
fine sense of the word, and a respected member of the interna-
tional community, dealing with such tittle-tattle as this sort of
thing’? O tempora! O mores! What have we come to in our
in this affair, of course, the press is no better than it usually
is. One remembers what Adlai Stevenson said when he spoke
to the National Association of Newspaper Editors. He said, “I
know you are important. It is your job to separate the wheat
from the chaff and then publish the chaff.” There is a lot of
chaff being published. They are majoring in minors much of
the time. They would never be able to behave that way, of
course, if they did not have such assistance from the
I even read that someone thought it worthwhile to develop
the hysteria about the Canadian High Commissioner in
London, Mrs. Wadds»-~–who,Ihear from all sides, is an
outstanding occupant of that office—and said, “She was
saying that you should use the Telex for important communi-
cations.” This was something new. Shc was charging the
British with snooping. They were spying, she was supposed to
have said. We all get the External Affairs telephone directory
every two months, and what do we find up here in the corner?
“Warning. Classified information shall not be discussed on the
telephone.” A news item? Nonsense. Nonsense.
To make the whole thing evcn broader, the Secretary Gener-
al of the CommonweaIth was brought in. Should Britain and
Canada, after all their years of association, need an interlocu-
tor to enable them to talk to one another’? It is totally
unnecessary and very, very deplorable.
This whole affair would have been avoided, honourable
senators, had the British had before thcm, as they should have
had before them, nothing but a request for patriation with an
amending formula. That is the great et’ror.
There are many things that should cause us to be concerned,
honourable senators.Iheard Mr. Chrétien’s speech.Iadmire
him.I like him.I think that he himself is a very sincere man.
trying to do his best. He closed, however, with something that
possibly revealed another little area of trouble that we get into
these days. He said he wanted a Constitution for tomorrow,
and a modern one. Modernity is very much worshipped in our
society. Perhaps it is too much worshipped. We think that if
we can just get something new—in this case, a new Constitu-
tion-—everything will be all right. People who have ncvcr read
the British North America Act and do not know what is in it
say that we must get something new. if you ask them why,
they say, “We must have something new. We must have
something new for today.“
I am not one of those hidebound Tories who think that
everything that is old is good. I am not dancing in the streets
because there is supposed to be a new Conservative push on
now.I am not nearly as happy as Frank Sinatra is about the
February 26, l98I _w_”~SENATE
American election. That is their business, of course. I was in
the United States on a speaking tour, which just happened to
end on the day of the inauguration. When I am abroad I am
fairly polite, but I did have going through my mind the
comment of Sir Robert Walpole when the British almost
danced in the streets-—you cannot expect them to get too
excited. They almost danced in the streets when the War of
the Spanish Succession opened, and old Walpole said:
“They’re ringing the bells now; they’ll be wringing their hands
soon.” So I wonder what will happen down south. We will
have to leave it to them.
But, honourable senators, we so often get carried away with
the importance of that which is new. I would not be in this
party if the word “Progressive” was not there and it was not a
progressive party. But those things which are progressive,
which are modern, are not always better. They are not always
right. If we were a society of lemmings, the most progressive
guy would be the one over the cliff first. That’s who it would
be. That is not a good example. So we get lost in some of these
things and it sounds not terribly important. But if we combine
these ingredients, and if, in an effort which is hailed as a great
new chapter of our national experience, we exacerbate and
extend those things which divide us; if we turn Canadian
against Canadian; if we put excessive strain upon our institu-
tions, then being modern will not be very helpful for the people
of tomorrow-—not at all helpful.
We must ask ourselves a question, which is: Do we really, in
our innermost thoughts, believe that what we propose will
make a better Canada? Not new institutions, not new names,
not personal satisfaction for any one Canadian, no matter how
exaIted, but will it make a better Canada; has it the ingredi-
ents for improving our nation, making it stronger and more
We do not need anyone to encourage disunity. The elements
of that have been there from the vcry beginning, and our great
statesmen have troubled over it and tried to hold it back. On
this question, I find that today I stand where I stood before: I
cannot, in all conscience, in honour, dignity, or love of my
country, support that which I know is inherently wrong, and I
must oppose it to the end.
Hon. Maurice Lamontagne: Honourablc senators, I will
certainly not try to be as entertaining as Senator Macquarrie.
Even ifl tried, I am sure that I would not succeed. I would like
to note, however, that in his defence of the provinces he
invoked with great admiration the name of Sir John A.
Macdonald. I am not too sure, however, if the honourable
senator remembers how Sir John A. defined Canadian federal-
ism. I have here a quote that we inserted in our report to the
Senate last November. Sir John said that he wanted to join our
five peoples into one nation “with the local governments and
local legislatures subordinated to the general government and
legislatures.” I am not sure if Senator Macquarrie would
accept the concept and the definition of Canadian federalism
enunciated by Sir John A. Macdonald.
Honourable senators, after many others, I should like to
congratulate Senator Hays and Mr. Serge loyal, co-chairmen
of the joint committee. Some have called them the “odd
couple“. I, for one, feel that they complemented each other
and that they very successfully carried out duties that were
both difficuIt and thankless. I should also like to thank my
colleagues Senator Lafond and Senator Rousseau who so often
replaced me on the committee.
This debate is indeed important, but we should not unduly
dramatize it, especially in this chamber of sober second
thought. On February I2, I was very glad to hear Senator
Flynn urge this chamber to show reason and moderation. I
have seen my country survive too many of these so-called last
chances to be impressed now by references to a coup d’etal
which, according to some, would mean the end of Canadian
federalism, and according to others, including Jean F.thicr-
Blais, the end of the French presence in America. I remember
that in I964, some people were saying that the Canadian flag
would become a symbol of division in this country, that it
represented the betrayal of Canada and the rejection of our
Christian hcritagc. I hope that during this debate, we shall try,
in this place at least, to demonstrate more serenity and
The centrifugal forces have always been strong in Canada.
Almost as soon as Confederation was born, as you know, Nova
Scotia favoured secession. When he started his election cam-
paign in 1896, Sir Wilfrid Laurier spent a good part of his
speech in Quebec City exposing the separatist movement and
what he called then “la Laurentie”. In I935, Henri Bourassa
mentioned that the four western provinces could separate and
creatc their own confederation. About the same time, the
Honourable Ian Mackenzie, from British Columbia, who was
later to become a minister in the King government, stated that
the separatist movement was gaining much momentum in his
province. I recall these events to show that the tensions that
exist today are not new, and that Canada has survivcd and
developed despite the extreme centrifugal forces which have
exerted themselves throughout our history.
I do not intend today to gct into the specifics of the
resolution because, except for some elements that I could
probably deal with at a later date, there is a fairly widespread
consensus as to the substance of the resolution. Instead, I
would like to deal with the process involved, because that is
what is at issue.
I shall refer in my analysis to those statements made by
politicians and constitutional experts. At my suggestion, some
of these were quoted last week in the other place. I do not
think it would be redundant to read them into our own record.
My argument is that the resolution docs not change the
federal-provincial balance in a way which is unfavourable to
the provinces. I do recognize however that several sections deal
with provincial jurisdictions and that as such, if the resolution
were presented as a bill, it would clearly be unconstitutional.
But that is not the issue here.
1874 SENATE DEBATES February 26, 1981
Another question poses itself: does this unilateral action
violate the Constitution or some constitutional convention’? l
do not think there is any constitutional provision to prevent the
Canadian Parliament from passing this resolution which, in
itself, has no dejure validity,
ln other words, there is no legal requirement and no binding
convention that prevents the Canadian Parliament from adopt-
ing, 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 powers.
The situation seems to be clear with respect to the lack of a
strict legal requirement. Even in 1935, Professor W. P. M.
Kennedy, appearing before the Special Committee on the
British North America Act, said about the amendment
-—I do not think there is the slightest necessity in law for
the Parliament of Canada to consuIt the provinces in the
process. It may be very good politics, but politics is not
the law. I think the Parliament of Canada can present any
address to the Parliament of the United Kingdom.
Professor Norman Rogers, who became a minister in the
King government, appearing before the same committee, held
a similar view that consuIting the provinces was not a mattcr
oflcgal right, but a question of political expediency.
Professor Gil Rémillard of Laval University, aIthough
opposed to the resolution, stated before the special joint com»
mittee on the Constitution on January 9, 198 l:
In fact, you have the powers to do whatever you want as
members of Parliament, as members of the two houses of
Parliament of Canada.
Senator Flynn: And afterwards the Supreme Court said no.
You have the power to declare unilaterally that Canada
now has a new Constitution, andIcan see no legal
argument that could be brought to bear to stop you from
But is there a convention requiring the consent of the
provinces before an Address is adopted by the Canadian
Parliament and sent to the United Kingdom‘? Constitutional
authorities differ as to what constitutes a convention.
Professor Peter Hogg has probably expressed the prevailing
view when he stated that a convention becomes established as
a resuIt of, first, a long standing invariable practice, and,
second, a belief by the officials, to whom it applies, that the
practice is obligatory.
The first question, therefore, is: Has the consent of the
provinces become a long standing practice’! Professor Gerard
V. La Forest answered this question when he appeared before
the special joint committee on January 9, 198], He said:
First, the precedents offer only limited-support. A good
number of amendments have been made without such
consent, sometimes without consultation. It is true that
there has been a strong tendency not to seek amendments
aItering the division of power between the two levels of
government without such consent, but several amend-
ments that affected the position of the provinces did not
receive provincial consent. Even the very delicate question
of the boundary between Quebec and Newfoundland was
constitutionally defined without Quebec‘s consent. More-
over, the manner in which the consent of the provinces
was expressed denotes a vagueness that even in conven-
tions is not common, and aforliori certainly not common
to rules of law. Sometimes the legislatures c0nsent—and
sometimes the Premiers——and I get the feeling in a few
cases that a Premier may have accepted something, but he
was far from agreeing with it.
It is highly doubtful, therefore, that the seeking of the
consent of the provinces has become a long standing practice.
What about the second condition that there should be a belief
by the officials to whom it applies that the practice is obligato-
ry‘? It is true that, over the years, some officials concerned
have believed that provincial consent was obligatory. But this
belief was far from being unanimous.I will give a few rcccnt
illustrations to justify this statement.
ln 1940, when the resolution asking the United Kingdom
Parliament to transfer unemployment insurance from provin-
cial to federal jurisdiction was debated in the House of Com-
mons, the following exchange took place:
MR. THORSON: . . . but I would not wish this debate to
conclude with an acceptance, either direct or implied, of
the doctrine that it is necessary to obtain the consent of
the provinces before an application is made to amend the
British North America Act. Fortunately, this is an aca-
demic qucstion at this time.
Mr. Lapointe, who was the Minister of Justice at that time,
MayItell my hon. friend that neither the Prime Minister
norIhave said that it is necessary, but it may be
Reference has often been made to a document entitled
Amendment to the Constitution of Canada, published in 1964
by the Honourable Guy Favreau, then Minister of Justice for
Canada. Such reference has usually been made in an attempt
to prove that the consent of the provinces has become a
binding convention. This publication, basing itself on past
practices, lists four rules or principles that govern the proce-
dure for amending the Constitution. It states:
The fourth general principle is that the Canadian Par-
liament will not request an amendment directly affecting
federal-provincial relationships without prior consultation
and agreement with the provinces. This principle did not
emerge as early as others, but since I907, and particularly
since 1930, has gained increasing recognition and
It should be noted that the document docs not say that the
fourth principle has gained recognition but only increasing
February 26, l98l SENATE
recognition and acceptance. Those who invoke this document
to prove that there is a convention often forget to mention the
last sentence of the same paragraph. it reads as follows:
The nature and the degree of provincial participation in
the amending process, however, have not lent themselves
to easy definition,
If the nature and degree of provincial participation have not
lent themselves to easy definition, how can the consent of the
provinces have developed into a binding convention’? Finally,
the document clearly indicates that this fourth principle, as
well as the others, is “not constitutionally binding in any strict
Senator Flynn: You were a member of the government at
Senator Lamontagne: Again, that was a quote from Guy
Senator Donahoe: Your colleague.
Senator Lamontagne: Yes, and I agree with him.
Senator Flynn: You would not have said that in those days.
Senator Lamontagne: A similar review of past practice
undertaken by the Honourable Ron Basford and the Honour-
able Marc Lalonde in 1978 states:
(d) the fourth observation is that, aIthough not constitu-
tionally obliged to do so, the Government of Canada,
before asking Parliament to adopt a Joint Address, sought
and obtained the consent of all the provinces on the three
amendments (1940, I951 and 1964) that involved the
distribution of powers,
This view that there is no constitutional convention obliging
the Canadian government to seek the consent of the provinces
has been sItared over the years by some provincial premiers,
more particularly at the Dominion-Provincial Conference held
in 1950 in another attempt to seek a Canadian amending
formula. That view was then expressed very clearly by Premier
McNair of New Brunswick. He said:
—-the provinces, in the final resort, are not assured ofany
say whatever in amendments of the Constitution, no
matter how hard their interests may be affected thereby.
He went on to say:
With these thoughts in mind,Isubmit that the provinces,
at this stage in our constitutional development, face this
situation. First, in the matter of constitutional amend-
ments, the parliament of Canada is in effect the judgeh
and the sole judge~—as to whether provincial rights and
privileges will be affected. Second, in consequence the
only protection the provinces have today against arbitrary
invasion of their rights, powers and jurisdiction is the
parliament of Canada itself.
Such statements, and others thatImight quote, showing
that there is not “a belief by the officials to whom it applies
that the practice is obligatory”, are undoubtedly the founda~
tion of the conclusion reached by Professor La Forest before
the special joint committee, when he said:
I am skeptical about the existence of a convention , .. I
am confident that it has not matured into a rule of law.
This view seems to have been confirmed, at least implicitly,
by the Supreme Court of Canada in the Senate reference,
when it said:
The practice, since 1867, has been to seek amendment to
the Act by a joint address of both Houses of Parliament.
ConsuItation with one or more of the provinces has
occurred in some instances.
This is not, in my view, an observation that leads to the
recognition of the existence of full~blown and operative con-
vention. The recent majority decision of the Manitoba Court
of Appeal, rendered by three judges, clearly denied the exist~
ence of such a convention. A fourth judge refused to give an
opinion on the ground that it did not belong to the courts, but
to the political arena, to decide such an issue. By implication,
therefore, that judge decided that no binding constitutional
convention existed. Curiously enough, the fifth judge, the only
judge who concluded that a convention existed, stated in his
I must say thatIam not sure that such prcccdents as exist
in themselves create a constitutional convention which
might be recognized by the courts as law…Iam not
wholly pcrsuaded by one of the principal submissions
made by the provinces, namely, that a convention has
been established as a resuIt of precedents.
That judge decided, in spite of these reasons, that such a
The view that no such binding convention exists is shared by
the two political parties that form the opposition in the House
of Commons. The New Democratic Party supports the pro-
posed resolution, which provides for unilateral action by the
Canadian Parliament without the consent of the provinces.
The Progressive Conservative Party, aIthough opposed to the
resolution, favours unilateral action by the Canadian Parlia-
ment with respect to the patriation of the Constitution and a
Canadian amending formula. I conclude, therefore, that it is
quite proper, in a legal or constitutional sense, for the Canadi-
an Parliament to proceed unilaterally, without the consent of
Senator Flynn: That is your understanding?
Senator Lamontagne: Yes, it is.
This conclusion is confirmed by Professor Frank R. Scott,
who is undoubtedly one of our most eminent constitutional
Senator Perrault: Hear, hear,
Senator Lamontagne: He wrote in 1950;
There may be political wisdom in consuIting with the
provinces, before adopting a joint address requesting an
amendment affecting provincial rights, but there is cer~
tainly no legal necessity for doing so.
DEBATES February Z6, I981
During the current Canadian debate, a second basic ques-
tion has been raised regarding the position of the U.K. Parlia-
ment with respect to amendments to the B.N.A. Act. In a
strict legal sense, the act of 1867 is a statute adopted by the
U.K. Parliament in the exercise of its sovereignty towards its
North American colonies; the British Parliament still remains
the sole authority with the power to amend it and to change
the modi?cations made to it prior to 1930. The Statute of
Westminster, which granted sovereignty to the British Domin-
ions in l93l, merely reconfirmed Canada’s colonial constitu~
tional status. lndced, section 7(1) states:
Nothing in this Act shall be deemed to apply to the
repeal, amendment or aIteration of the British North
America Acts, 1867 to i930, or any order, rule or regula-
ln this respect, Dr. O. D. SkeIton said in 1935:
All that was sought to do in 193] was to ensure that for
the time being the status quo was not aItered by the
Statute of Westminster, as regards constitutional amend-
The U.K. Parliament is, therefore, in strict law, the sole
authority empowered to amend the B.N.A. Acts passcd before
l93O and it could do so, in theory, in the exercise of its own
sovereignty, without even prior consuItation with Canada.
Senator Flynn: You say since i949?
Senator Lamontagne: Yes, even sincc 1949.
Senator Flynn: It could change anything in the future.
Senator Lamontagne: It could not change the constitution of
the central Parliament, but it can change all the exceptions
which were inserted in section 9l(l) in I949.
Senator Flynn: That is not what you said.
Senator Lamontagne: That is whatIsay.
Senator Flynn: No, no.
Senator Lamontagnc: But then the following question arises:
Is there a convention obliging the U.K. Parliament to amend
the Constitution of Canada only on request and with the
consent of the Canadian Parliament? To determine this issue
according to Professor Hogg‘s two criteria, we must first
decide if there is a longstanding practice to this effect.
The practice of amending the Constitution through an
Address to the imperial Parliament existed in the British
North American colonies even before Confederation. Accord-
ing tc Professor F. R. Scott, thc existence of this old practice
explains why the Fathers of Confederation did not include an
amending formula in thc B.N.A. Act in 1867. He says:
~when the Fathers of Confederation met they were
accustomed to the idea that the constitution could be
changed and that it required no more than the presenta-
tion of an address to the Imperial Parliament… So that
the Fathers of Confederation, having had that experience
in Canada, were accustomed to that method of change.
Senator Flynn: There was no federal Parliament there then.
Senator Lamontagne: The Parliament of the United King-
dom has made 21 amendments to thc B.N.A. Act. since i867.
On three occasions, in I893, 1927 and i950, minor amend-
ments for statute revision purposes were made on the sole
initiative of the Parliament of the United Kingdom. ln all
other cases involving more substantial amendments, a request
was made by the Government of Canada, as in 1871 and 1875,
or, since then, by the Canadian Parliament. in no case has the
U.K. Parliament refused an amendment because the consent
of the provinces had not been obtained or accepted an amend-
ment upon a provincial request. Furthermore, on only one
occasion, in 1907, has the British Parliament made a signifi~
cant change to the terms of a resolution adopted by the
Canadian Parliament. The measure sought to increase federal
subsidies to the provinces “as a final and unaIterablc settle-
ment” but this condition was deleted in London because it was
seen as “being obviously inappropriate in a legislative enact»
ment.” British Columbia opposed the Canadian request on the
ground that the proposed increase in subsidies was not high
This single incident in nearly 115 years, whatever interpre~
tation is given to it, cannot be invoked to deity the existence of
a long-standing practice. But what about the second require-
ment Has there been a belief by the officials to whom it
applies that the practice is obligatory‘?
It may well be argued that, while the Statute of Westmin-
ster docs not apply to amendments to the B.N.A. Act, the
U.K. Parliament decided implicitly and unilaterally, when it
passed this statute, not to amend the act in the future except
by consent of the Dominion of Canada, thereby recognizing
that the long-standing practice it had followed up to then had
become obligatory. We should remember that section 4 of the
statute states–and I recognize that it docs not apply in strict
law to Canada at the moment:
No Act of Parliament of the United Kingdom passed
after the commencement of this Act shall extend or be
deemed to extend, to a Dominion as part of the law of
that Dominion, unless it is expressly declared in that Act
that that Dominion has requested, and consented to, the
Since thcn, successive British officials have considered that
the Parliament of the United Kingdom was bound to act at thc
request of thc Canadian Parliament. These quotations have
already been referred to elsewhere, but I wish them to be
inserted in the Debates of the Senate. in 1940, when the
unemployment insurance amendment was being considered by
the United Kingdom House of Commons, thc Solicitor Gener-
—-we square the legal with the constitutional position by
passing these Acts only in the form that the Canadian
Parliament requires and at the request of the Canadian
He went on to say:
February 26, 1981 SENATE
_My justification to the House for this Bill-~and it is
important to observe this———is not on the merits of the
proposal, which is a matter for the Canadian Parliament;
if we were to embark upon that, we might trespass on
what I conceive to be their constitutional position. The
sole justification for this enactment is that we are doing in
– this way what the Parliament of Canada desires to do.
When _Quebec objected to the 1943 amendment postponing
a redistribution of the seats of the House of Commons, the
Secretary of State for Dominion Affairs at that time, Mr.
l have no information as to any Province objecting, but,
in any case, the matter is brought before us by an Address
voted by both Houses of Parliament, and it is difficuIt for
us to look behind that fact.
Again in l946, when Quebec opposed an amendment chang-
ing the basis of representation in the House of Commons,
Viscount Bennett, who was Prime Minister of Canada when
the Statute of Westminster was approved, said in the House of
Canada is the only one of the Dominions in which a
Party majority can amend the Constitution. They cannot
amend it directly but they do it indirectly, because we
And he was speaking as a member of the llouse of Lords at
-V-»that we will consent to pass any legislation that they
may petition to have passed by this Parliament.
ln I949, with respect to the amendment adding section
91(1) to the B.N.A. Act, 1867, no mention was made in the
British Parliament that some provinces were strongly opposed
to the modification.
Senator Flynn: There was no strong opposition.
Senator Lamontagne: You can put your interpretation of
that situation on the record.
The Secretary of State for Commonwealth Relations said:
The Bill is east in the terms of the Address adopted by
the Federal Parliament of Canada and, of course, we are
all ready to do what they desire.
ln 1960, when an amendment providing for the compulsory
retirement age of 75 for superior court judges \vas introduced,
the Minister ofState for CommonweaIth Relations stated:
» ‘legislation by the United Kingdom Parliament is still
necessary where the subject of the amendment is one
which affects the interests both of the Federal Parliament
and the Provinces.
We are therefore to all intents and purposes acting in
what is a formal capacity for the Canadian Parliament in
a matter which is solely its concern.
He went on to say:
In accordance with long-established precedent, we refrain
from discussing the merits of a Bill submitted to us
amending the British North America Acts when this has
been introduced in consequence of Addresses to Her
Majesty adopted by both Houses of the Canadian
Senator Flynn: We had the approval of the provinces at that
time, so what you are saying is irrelevant.
Senator Lamontagne: It seems obvious, therefore, that this
“long-established precedent“ has become a binding conven~
Senator Flynn: No.
Senator Lamontagne: This view has also been held in
Canada.Ihave already quoted a statement made to this effect
by Premier McNair in l950. The Honourable Ernest Lapointe
stated in l93l:
In that matter the imperial Parliament is not really a
dominating power; it acts as a trustee and as a guarantor,
and merely gives effect to the will of the Canadian people.
in l943, Mr. Coldwcll restated the prevailing view. He said:
I know, of course, that at present the real power of
amendment of our Constitution, which is the British
North America Act, is in reality in the hands of this
Parliament. As I have just indicated, anything we may
ask regarding amendment will be granted by the Imperial
Parliament at Westminster.
AIthough the biased and inconsistent report recently pub»
lished by the Foreign Affairs Committee of the U.K. House of
Commons did not reproduce the statements of those British
officials thatIhave quoted, it practically confirmed the pre-
vailing view that there is a convention binding the U.K.
Parliament. The report stated:
-it would not be in accord with the established eonstitu»
tional position for the U.K. Parliament . . .
(ii) to undertake any deliberation about the suitability
for the people of Canada of a requested constitutional
(iii) to patriate the Canadian constitution unilaterally
with or without a post-partriation amending formula;
(iv) to enact a requested constitutional package with
amendments not consented to by the Canadian Govern-
ment and Parliament;
(v) to fail to give a proper request priority in Parlia-
ment‘s time table.
The report adds that the U.K. Parliament is not bound by
the so-called provincial unanimity rule, and that it would have
to accept a unilateral request from the Canadian Parliament,
even if this request affects the rights of the provinces, because
the British government and Parliament arc not “the guardians
or trustees of the rights of the provinces precisely as
Some Hon. Senators: Hear, hear.
Senator Lamontagne: All these conclusions reached by the
select committee are in accordance with long standing British
DEBATES February 26, l98l
However, the report goes on to say, at least implicitly, that
the U.K. Parliament must reject a request from the Canadian
Parliament if it affects the federal structure of Canada and if
it is not supported by a majority of provinces as defined by the
Victoria formula. It states:
-—if the U.K. authorities must be said to have a duty to
someone, it would be a duty or responsibility to the
Canadian people or community as a federally structured
This doctrine that the U.K. Parliament is the guardian and
trustee of Canadian federalism contradicts all statements
made by U.K. governments over the years. ln a rather ram-
bling argument, the select committee tries to show that this
new role of the U.K Parliament, which has no basis in our
history, arose out of the Statute of Westminster in l93l.
However, it contradicts itself when it says that the statute was
merely designed to retain “the pre-l93l status quo, in relation
to constitutional amendments”,
The Foreign and CommonweaIth Office summarized for the
select committee the position taken by successive U.K, govern-
ments with respect to the amendment of the l3.N.A. Act. It
If a request to effect such a change were to be received
from the Parliament of Canada it would be in accordance
with precedent for the Government to introduce in Parlia-
ment, and for Parliament to enact appropriate legislation
in compliance with the request.
The select committee did not note, however, that this state-
ment directly contradicted its own new doctrine. The most
curious thing is that Sir Anthony Kcrshaw, the chairman of
the select committee, himself destroyed the credibility of his
own report. ln an interview given to Southam News in Edmon-
ton, and reported in the Citizen on February 7, 198], he
predicted that the constitutional package would be adopted by
the U.K. Parliament. He merely pleaded for time and said:
“But don’t expect us to push the thing through in two or three
days”. in my view, Sir Anthony has thus buried his own
I wish at this stage to summarize the pointsIhave made up
to now by stating two specific conclusions which are based on
a proper interpretation of the evidence available. First, a
binding convention has developed, during more than a century,
according to which the U.K. Parliament amends the B.N.A.
Act only at the request and with the consent of the Canadian
Parliament, which is expressed through the adoption ofa Joint
Address by the Senate and the House of Commons. Second,
there is no similar binding convention requiring provincial
consent before or after thc Canadian Parliament adopts such a
Where does this leave us now? Since 1927, the federal
government has sought, without success, the unanimous agree-
ment of the provinces on a Canadian amending formula.
During all these years the provinces were under the false
impression that they were better protected by the so-called
unanimity rule, supposedly guaranteed by the status quo. But
we rediscover today what others, including Premicr McNair in
1950, had found before us, that in reality and for all practical
purposes we have had a Canadian amending formula all along
and that this formula did not require unanimous provincial
consent, but a simple majority in both houses of Parliament, as
former Prime Minister Bennett asserted in 1946. In my view,
the Canadian Parliament should not have this de facto unlim-
ited and overriding power in a true federal system. The very
purpose of the proposed resolution is to eliminate it. The
unanimity formula may be at most a recent political practice
but, from a constitutional point of view, it is a myth, like the
concept of provincial sovereignty in several important respects.
I would like now to raise another question. In the absence of
any legal and constitutional requirement that could prevent
Parliament from passing the proposed resolution, is it sound
and proper for us to adopt it in terms of political expediency‘?
First, let us sec whether the overall content of the resolution
is desirable and whether it affects the fcdcral~provincial equi-
librium to thc detriment of the provinces. The resolution, in its
provision regarding the future amending formula, eliminates
the dc farm overriding power that the Canadian Parliament
now has and gives new and specific constitutional rights in this
respect to thc provinces and to the Canadian people, Viewed in
this perspective, the resolution affects federal-provincial rela-
tionships to the detriment of the Canadian Parliament. It
involves the provinces directly, as a matter of constitutional
right, in thc amending process.
It is truc that section 46 provides for a referendum at the
sole initiative of the Canadian Parliament to change the
Constitution, but this aIternative will be used only as a dead-
lock-brcaking mechanism. Moreover, a federal-provincial com-
mission will be askcd to define the rules of such a referendum
to ensure its fairness. This provision for a referendum does not
infringe upon any existing provincial constitutional right. It
merely transfers an existing tie farm federal power to the
Canadian people in the four regions of the country, and it gives
to the ten provincial governments the opportunity to oppose a
federal deadlock-breaking proposal during a referendum
The provisions of the resolution regarding resources and
equalization offer further constitutional guarantees to the
The Charter of Rights and Freedoms, which is thc second
major aspect of the resolution, does not affect federal-provin-
Senator Smith: Ch, yes it does.
Senator Lamontagnez Let me continue. The honourable
senator will have his turn.
lndecd, section 30 states:
Nothing in this Charter extends thc legislative powers
of any body or authority.
Senator Flynn: It restricts it,
Senator Lanrontagne: The charter reduces provincial powers
but it affects federal powers in the same way. The very
purpose of entrenchment is to curb the authority of legislative
February 26, l98l SENATE
bodies and to give to the citizens the additional protection of
the courts. Viewed in this perspective, it is obvious that the
proposed charter does not satisfy everybody, butIbelieve, like
most people, that it is a realistic proposal, as a first step. It is
to be hoped that it will be reviewed periodically, whenever
desirable, once the entrenchment issue has been solved and a
relatively ?exible Canadian amending formula has been
I find, therefore, that the overall content of the resolution is
most desirable. it does not assign, as some argue, more powers
to the Canadian Parliament. On the contrary, it gives more
constitutional rights and guarantees to the provinces and to the
Many Canadians, while agreeing with the overall content of
the resolution, claim that we should not go to London, even for
the last time, more particularly, to get a Charter of Rights and
freedoms. We all agree, I am sure, that it would be ideal if we
could accomplish in Canada, through unanimous federal-pro-
vincial consent, the intent of the resolution. Unfortunately, l
cannot see this ideal solution as a possibility, at least in the
Canadians have deplored the colonial status of their Consti-
tution for a long time. Henri Bourassa said in I931:
I feel somewhat ashamed to find that in the year I931
the Dominion of Canada is the rearguard of all the
dominions in the exercise of full~fledged autonomy.
He then expressed a hope, when he stated that:
The time will certainly come when there will be enough
wisdom, enough sense of self-respect either in the prov-
inces or the Dominion of Canada, to find means of
exercising that right of amending our own constitution by
cooperation between the Dominion parliament and the
That was in 1935.
Senator Flynn: Yes.
Senator Lamontagne: Following the failure of a federal-pro-
vincial conference to reach agreement on an amending formula
in i927, Professor Norman Rogers expressed the view, again
in 1935, that a new conference would succeed, and lquotc:
ln the first place,Iwould approach a new conference in
the faith that something could be accomplished, particu-
larly in view of the present state of public opinion in this
country. I do believe that the people of this country are
more alive to the importance of this problem today than
ever before. I do not think because consideration of the
matter by a previous conference failed that we are coin-
pelled to accept failure as the lot of another conference
called in the near future.
Since 1927, as we all know, ten First Ministers‘ Confer-
ences, often preceded by numerous meetings of ministers and
officials, have failed to produce an agreement. The last
attempt in September, 1980, followed many meetings of the
Continuing Committee of Ministers on the Constitution during
the summer months. Yet, today, some people still believe that,
as Mr. Rogers has said, “another conference called in the near
future” would succeed.
Unfortunately, there is no evidence to this effect. At their
meeting in Toronto last October, the provinces did not even try
to agree on a positive proposal that could have been presented
to the Canadian Parliament. Six of them merely decided at
that time to go to the courts. Premier Hatfield made it very
clear to the Joint Committee on the Constitution that another
conference would not succeed. A great deal has been made»-
and will be made again, I am sure, during the course of this
debate—of the so-called provincial consensus reached at the
Chateau Laurier last September. But Premier Blakeney stated
before the joint committee on December 19, 1980, that this
so-called consensus has been at best a “tactical agreement”,
saying, “I certainly do not like it, I do not think it is going to
fly but it is our best bargaining position.” I suggest, therefore,
that the so-called Chateau consensus was not meaningful and
substantive, and that even this tactical agreement does not
What about the meeting of six premiers held in Montreal on
February 9, 1981 ‘.7 its results were summarized, in part by the
Citizen in an editorial published on February 10, as follows:
But one premier, B.C.’s Bill Bennett, wanted the gang of
six to seek a new amending formula, and he wanted to
press for return to the bargaining by all the first minis-
ters. Bennett’s compromise attempt met with failure,
largely because too many of the premiers don’t want
compromise. Levesque wants failure. Lougheed and Peek-
ford want energy jurisdiction. Lyon refuses to accept a
charter of rights. But the split is there for all to seem-
Under such circumstances, another conference would in my
view be doomed to failure. Moreover, it should be noted that
the proposed resolution does not impose an amending formula.
If the provinces can reach a substantial agreement, during the
next two years, on a formula of their own, they will be entitled,
if the resolution is adopted, to submit this formula to the
Canadian people for approval. This is, I believe, a fair and
proper way of getting out of a long-standing deadlock.
Hon. Senators: Hear, hear.
Senator Lamontagne: Unfortunately, our past failures have
not been limited to this impasse. indeed, the record shows that
it may be as impossible to get provincial agreement on an
entrenched charter as it has been in the ease of an amending
formula. in 1946 Mr. John Diefenbaker deplored the fact that
the Canadian Constitution did not contain a Charter of
Rights. He said:
The British North America Act contains no charter of
liberty asdoes the constitution of the United States… It
makes no declaration of the rights of man, as our cousins
south of the line do when from time to time they speak
with eloquence and power of a constitution that is
couched in magnificent language.
In 1947, a Special Joint Committee on Human Rights and
Fundamental Freedoms was established. It recommended that
no attempt be made to enact a bill ofrights only in the form of
DEBATES W _WM_ February 26, l98l
a federal statute; it was feIt at the time that the provinces
would not agree to be bound by an entrenched charter.
The adoption of a Bill of Rights by Parliament was delayed
until 1960 mainly because it was thought that a mere legisla-
tive enactment, having no paramountcy over other legislation
and limited to the federal sp_here of jurisdiction, would not
provide adequate protection to Canadian citizens. Curiously
enough, the Quebec government was the first in Canada to
propose the cntrenchment of a charter. On July 25, 1960.
Premier Lesage stated at a federal-provincial conference:
We therefore believe that it is now necessary for us to
have a Bill of Human Rights. We are also of the opinion
that such a Bill would have a much greater actual and
symbolic value if it were part of our constitution . .. It
seems to us that we have here a magnificent opportunity
to discuss this problem and to see if we cannot agree on a
joint declaration of human rights that could be embedded
in our Constitution.
This proposal unfortunately was not followed up at the time.
At the Victoria constitutional conference in 197], unanimity
was reached in favour of an entrenched charter, but Quebec
withdrew its support shortly thereafter. This issue was raised
again at a federal-provincial conference in 1978 and aIthough
the previous unanimity was broken, a substantial majority of
the provinces still favoured entrenchment. At the conference of
September, 1980 only two provincial governments fully accept-
ed putting in the Constitution the charter proposed by thc
federal government. These successive failures show that if the
Canadian Parliament does not proceed unilaterally now to
include a charter in the proposed resolution, the entrenchmcnt
of rights for the Canadian people will be postponed
Some people say that they would be ashamed to get their
rights from a so-called foreign country.Isuggest in this
respect that Canada is a rather unique country, at least in one
sense. We never had to fight or go through a revolution to
acquire our independence and our basic rights. We got them
all from that same so-called foreign country; but we got them
Senator Donahue: When we were colonies!
Senator Lamontagne: The provinces became the masters of
their own constitutions, as Senator Macquarrie has told us, in
I867 through a British statute, as did the Canadian Parlia-
ment in 1949. Canada received its extraterritorial sovereignty
in l93l through another British statute, We also acquired our
basic rights and freedoms, going back to the Magna Carta,
from the United Kingdom. As far asIam concerned, I am
proud to be a Canadian, but in view of all these antecedents it
does not really offend my pride to have to go back again to
Great Britain, but for the last time, in order to complete a
process that began in I774.
The issue raised by the resolution, in terms of political
expediency, is therefore quite simple. Do we want to maintain
the constitutional status quo and our colonial status indefinite»
ly’? If so, let us vote against the resolution. Do we want, on the
other hand, to break long-standing deadlocks on patriation, an
amending formula and the entrenchment of rights, thus open-
ing the way, in a second phase, for other constitutional
reforms’! lf so, let us use for the last time the only formula
that the provinces thought appropriate in i972, and vote for
I wish to comment now very brie?y, because I have
spoken at length—perhaps as long as Senator Tremblay the
other night—-on an entirely different subject: the rights of
anglophone and francophone minorities in Quebec and in the
rest of Canada. If the charter contained in the resolution is
adopted, for the first time in our history those minorities will
have equal constitutional rights to education in their respective
language throughout the country. In my opinion that is
already great progress. But it is not really enough.
I particularly regret that Ontario, which is home to the
largest francophone minority in Canada, did not resolutely
commit itself, like New Brunswick, to institutional bilingual-
ism by accepting, among other things, to be bound by section
133 of our Constitution. Were Ontario to decide to treat its
linguistic minority the same way Quebec respects its own
minority, a decisive step would be made to close thc gap
between our two main communities. The Government of
Ontario has often expressed its commitment to Canadian
unity. I am convinced that its credibility in that respect would
be greatly enhanced if, at this historic moment, it were to
agree at least to be bound by section 133.
AsIsee it, bilingualism, especially if it is based on two great
international languages, is first and foremost a source of
personal enrichment. But in a country like Canada it also has
immense political value, for it is a guarantee of unity. indeed I
am deeply convinced that Quebec separatism will never gain
currency if francophone communities in the rest of Canada,
particularly in Ontario and New Brunswick, enjoy the rights
and services they need not only to survive but to grow.Ihope
that in the course of this debate many senators, more especial-
ly anglophone senators, will express their views on that primor-
I cannot end this long speech without mentioning the atti-
tude of the Quebec government in this matter. That govern-
ment does not believe there is a way out of the constitutional
deadlock. It states in its white paper:
In the opinion of the government of Quebec the sad
story of attempts, as useless as they were numerous, to
review the constitution demonstrates how illusory it will
be henceforth to think about renewing federalism in such
a way as to please Quebec and the rest of Canada at the
But above all the PQ government docs not want renewed
federalism, That is why it is adamant on the unanimity
formula, for that is how it protects the status quo in order to
be in a better position to object to it. Under the circumstances,
only a unilateral approach can break the deadlock. Those who
February 26, l98l _ SENATE DEBATES _ 1881
oppose this initiative are therefore, unconsciously or not»—and
I know that Senator Flynn will disagree—playing into the
hands of Quebec separatists. indeed, the logical consequence
of a vote against this resolution would be to maintain inclcfi—
nitely the status quo. ln my opinion, this is certainly not what
most Canadians and the great majority of Quebecers want.
Senator Flynn: On the last point raised by Senator Lamon~
tagne, mayIask a question‘? He said that all those who oppose
the resolution are playing into the hands of the separatists.
Senator Lamontagne: Unconsciously.
Senator Flynn: I know. This is not what bothers me. Is
Senator Lamontagne saying that the Quebec Liberal Party
and the Union Nationale Party, which oppose the resolution,
are also unconsciously playing into the hands of the
Senator Lamontagne: In this context, yes. However, there is
a great difference between the position of the Union
Nationale, which has taken so many different stands in the last
few years, and that of thc provincial Liberal Party, which I
know quite well.
I submit that thc provincial Liberal party is basically in
agreement with this resolution. It objects to unilateral action,
but it agrees that federalism should be improved. It agrees that
the deadlock should be broken while, and this is a very
significant difference, Mr. Lévesque and his supporters want
the status quo.
Senator Flynn: Would Senator Lamontagne suggest to the
government that it postpone putting forward the resolution to
London until after the provincial election in Quebec’? Thus,
assuming that Mr. Ryan will become thc next premier, we
could then try to come to an agreement?
Senator Lamontagne: Honourable senators, there is no
doubt in my mind that Mr. Ryan will win the next provincial
election, and on that point at least, we shall have no difficuIty
in getting along. However, if we delay the process once again,
even if Mr. Ryan docs not oppose the resolution, we would still
have to face the opposition of Mr. Peckford, Mr. Lyon and
Mr. Bennett if they are still in power in their own provinces.
Senator Flynn: No,Iwas talking of postponing the process
until after the provincial election.
Senator Lamontagne: Do you mean until elections are held
in the respective provinces of Mr. Bennett and the other
Senator Roblin: The answer is no.
Senator Flynn: in that case, the answer is no.
On motion of Senator Macdonald, debate adjourned.