Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Debate Continued” (4 March 1981)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 1935-1948.
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March 4, l98l SENATE
MOTION FOR AN ADDRESS TO HER MAJESTY THE QUEEN-
The Senate resumed from yesterday the debate on the
motion of Senator Perrault that an Address be presented to
Her Majesty the Queen respecting the Constitution of Canada.
DEBATES __ March 4, l98l
Hon. C. William Doody: Honourable senators, before I
begin my very few and very brief comments, I would be remiss
if I did not add my voice to those who have congratulated the
members of the special joint committee, from both sides of
both houses, on the magnificent job they did during the long
and arduous weeks of hearings and debate. People who
watched the proceedings on television could not but be favour-
ably impressed by both the conduct and the ability of the
committee members. We, in the Senate, indeed all the people
of Canada, owe those committee members a great debt. They
have raised the public perception of the parliamentary process
immeasurably, and, indeed, have raised the credibility of
legislatures across Canada tremendously in the eyes of the
I am reasonably certain that it will come as no surprise to
honourable senators to learn that I fully intend to vote against
the government’s proposed constitutional package that is
before us. In so doing, I have the comforting knowledge that l
am standing with the vast majority of Canadians who also
oppose this measure~the great majority of Canadians not
only in my own province or even in the Atlantic region, but in
every province and territory from coast to coast of this great
Many times during the course of this great debate, honour-
able senators, we have heard enumerated the list of those
opposed to this package. Some have appeared before the
committee or have submitted briefs, and their worries, fears
and apprehensions are well documented. The representations
of the vast majority of the Canadian people, these very con-
cerned and articulate people, these individuals, groups, prov-
inces and political parties, have had no effect on this govern-
ment’s bullheadcd decision to push this package through,
substantially in the form which aroused the opposition of the
Canadian people as the committee sessions went on.
This government, this arrogant group of determined men, is
impervious to these repeated loud and legitimate cries of
protest from those very people whom they purport to represent,
and by whom they were elected. Honourable senators, it is
being done, we are told, for our own good. No matter that at
least eight provinces are strongly opposed, and no matter that
the large majority of Canadians are opposed, we are told that
it must be done.
Honourable senators, it is not really being done by the
government, or by a small group. We all know that the force,
the drive, the obsession is that of one man who has convinced
himself and those around him that this odious package must be
sent to Westminster-—a loathsome and shameful processuto
be acted on. Despite the fact he knows full well that most
Canadians, in all regions, are opposed, he persists because he
says it is good for us, and we must have it, in his image and
likeness, whether we like it or not, whether we want it or not.
We must have it via the British Parliament. He says that the
end result»-the patriation of our Constitution——is good, and so
the means that he employs to attain that end are unimportant.
The end, in this case, justifies the means!
This has to be one of the most dangerous, wrongful lines of
thought ever pursued by man. There is no end to the crimes
and evils that have been in?icted on mankind down through
the ages by people who have used this kind of reasoning to
justify their ambitious goals. This is the same type of reason~
ing that allows one country to vow the liberation of another,
even if it means the mutilation and misery of millions of those
to be liberated; the kind of reasoning that makes a mockery of
human rights of any sort, entrenched, enshrined or whatever;
and the sort of reasoning that sends a Charter of Rights to the
Parliament of the United Kingdom for enactment, while deny-
ing the Parliament of Canada the right to do that here in
We, in Canada, surely must have the right to pass our own
Bill of Rights. Not so. We must, it seems, have the Parliament
of the United Kingdom do it for us. We get rid of colonialism
through the weird process of humbly entreating Her Majesty’s
United Kingdom Parliament to pass certain laws for and on
behalf of her Canadian colony, much the same humiliating
process that the Dominion of Newfoundland was forced to
endure in the hungry thirties.
I never imagined a proud Canadian government could court
this humiliation so willingly. At least, we in Newfoundland can
say we were forced through debt, hunger and poverty to crawl
to Westminster- a better reason than the blind ambition we
Honourable senators, I will say little on the Charter of
Rights. The principle of human rights is a good one. No one, I
hope, could be against this basic cornerstone of our lives. I
cannot help but feel, however, that we are passing over to the
courts some of the authority and responsibility of Parliament.
it seems to me that the more lists of rights that are written, the
more unclear and vague some of these rights seem to be. The
government seems to be very proud of its inclusion of a section
dealing with the rights of Women, but it is quite clear that
many women in Canada are not happy with this section. it
does not really provide the answer to the problems that have
been raised, and yet we have a section in the Charter of Rights
dealing with the rights of women. Are we going to pass this
section anyway, and let the courts tidy it up later, or will we
tidy it up ourselves later? I don‘t know.
What of the aboriginal rights‘? We have heard a great deal
of self-congratulation on the other side concerning this item,
but exactly what rights are we so grandly recognizing as the
rights of our native peoples’! We know that the native peoples
have had rights for some time. We all have rights, but the
native peoples don‘t know any more today what those rights
are than they knew before this grandiose pronouncement.
What amending formula will apply to the recognition of the
native peoples‘ rights in that Constitution? Are they to be left
to the mercy of the federal government or some combination of
the federal and provincial governments, or are the amend-
ments to be made through some new process yet to be dis-
played or dreamed up?
March 4, l98l SENATE
Senator Steuart last evening said he hoped it would work
out well and that some good arrangement could be made. We
all hope some help is on the way, but is this the way to write a
Constitution? The government does not know what these
programs, policies or processes will be. I do not think we
should be asked to vote for them.
Honourable senators, that very vital and basic question of
property rights is completely ignored in the document which
we are humbly sending to Great Britain. In point of fact,
property rights are not even mentioned. Quite apart from the
native peoples’ concern regarding this item-Hand it is a very
big concern, their concept of property ownership being quite
different from the concept which most of us have been brought
up with—»thc basic rights of Canadians to hold property is
passed over completely. The reason given is that some of the
provinces were opposed to the entrenchment of property
rightsuat least, that is the only reason that I can determine. I
say it is the only reason I can determine, but surely there must
be another one. There are many sections of the proposed
package with which the provinces do not agree. Indeed, as has
been noted time and time again, at least eight of the provinces
are opposed to the package as presented.
Honourable senators, I fear that, in pursuing the course of
entrenching the Charter of Rights, we will be moving toward a
situation in which the United States system, or a facsimile of
it, will replace our own system which, in my opinion, is by far
the better of the two. But I am sure there are many who
disagree with me, and to continue the arguments pro and con
cntrenchmcnt is simply to distract from other principles
The principle of rights, as I have said, is certainly accept-
able. The principle of asking the Parliament of the United
Kingdom to debate, and hopefully pass, the Charter of Rights
and the other components of the Canadian Constitution for the
people of Canada is totally unacceptable.
To say, as Senator Austin said in committee, that these
items have been debated and discussed in Canada and are,
therefore, Canadian, is irrelevant. The point is that we are
asking the British to enact Canadian law for us. This is
degrading! To place the nation of Canada in this abject state
of colonial servility is disgraceful—and this in 198l, our year
of Canadian national maturity.
On the Charter of Rights, or more precisely, on rights
generally, I have one final comment. The statements and
inferences that have emanated from government spokesmen
during the course of these discussions seem to suggest that the
federal government is the only champion of human rights. This
is an unfortunate and misleading position. The recognition and
protection of rights has been at least as much the concern of
the provincial governments as of the federal government.
Transgressions and violations of these various rights, on the
rare occasions when they have occurred, found each of the two
levels of government at fault.
I suspect, honourable senators, that some rare infractions of
rights will continue to occur from time to time, whether or not
some or all of these rights are entrenched or not. Such a
violation of rights is going on right now-—the rights of the
people of Canada, of the provincial governments of Canada, to
work within the Canadian processes and conventions to make
their own Constitution here in Canada.
Some Hon. Senators: Hear, hear.
Senator Doodyz It will be sent to Westminster for enact~
ment. The will of the majority in Parliament is the only right
that we witness in Canada today, and this is the majority
dominated by one man.
What we are asked to do in this chamber, and in this
Parliament, is to pass this resolution in defiance of the federal
system which has evolved over a period of years, and which has
served Canada and its people over those years. We are asked
to pass this document, and in so doing, perhaps place the
Canadian federation in serious peril. Honourable senators, this
is folly in its extreme.
We are being asked to approve this package in the face of
the deep, sincere, vocal opposition of at least eight of the
eleven governments of Canada. This is not federalism. This is
arrogance and autocracy, not federal democracy. The personal
ambition of one man, no matter how well-meaning, cannot
justify the peril in which we place our country. The fact that
Mr. Trudeau tells us that this package is good for Canadians is
not sufficient reason for us to support it, for approval of this
package could cause strains and cracks in Canada which could
cause problems for years to come.
How great those problems might be, I cannot Say. I submit
that no one in this chamber or the other place knows, with
certainty, any more than I do, so the risk is unacceptable.
There is little sense in forcing this package down the throats of
Canadians if we end up with no Canada or a country ridden
with distrust and bitterness. To have the Constitution in
Canada is highly desirable; to have this package in Canada,
via Westminster, is not only undesirable but is highly
Honourable senators, I share the view of most Canadians
that the Canadian Constitution should reside in Canada. But I
also share the view of most Canadians that it should be a
Canadian Constitution, made and passed in Canada, not a
nationally divisive document passed by the United Kingdom
Parliament, and guaranteed to cause bad feelings for years to
come in our country.
I would like to say a few words on the proposed document. I
realize that honourable senators have heard it all before, and
from far greater orators than I will ever be. The magnificent
speeches of my old friend, Senator Macquarrie, and my col-
league in many constitutional intergovernmental affairs dis~
cussions over the years, Senator Tremblay, and the superbly
researched speech of Senator Thompson, and others, were so
profound, so forceful, and so well delivered, that I sometimes
wonder at my audacity to stand in their presence. I was
particularly impressed by the delightful performance of Sena~
tor Stcuart last evening. In all sincerity, honourable senators——
Some Hon. Senators: Hear, hear.
i 938 SENATE
DEBATES March 4, 198]
Senator Flynn: It was very amusing.
Senator Doody: »—the trauma of his conversion detracted
somewhat from the impact of his speech.
Senator Perrault: Remember St. Paul.
Senator Doody: I remember him well and he must blanch in
I respectfully implorc your indulgence and your tolerance,
honourable senators, for a few more minutes as I conclude,
otherwise I might be provoked into becoming partisan. Heaven
Senator Frith: ls that possible?
Senator Doody: In present company, extremely likely.
Honourable senators, let me speak for just a few moments to
the proposed Constitution itself. I wish to look at the principle
of having two types of province, which is embedded in the
document before us. There is the image of two types of
province presented to us, and I do not consider it to be an
acceptable proposal. There are some provinces with greater
value, greater wealth, greater status, greater potential than
others. That principle is enunciated very clearly in the amend-
ing formula: two provinces with absolute vcto, and the other
provinces with lesser status. You might say that thosc two
provinces are big and powerful, and perhaps, when my own
second-class province grows up and gets in with the crowd, we
may be allowed to sit above the salt too; we may be allowed to
evolve from the common herd of lesser provinces and become
one ofthe big ones; and the people of P.E.I., British Columbia,
Nova Scotia and those other provinces can also aspire to the
big leagues. But, honourable senators, under the set of rules-
Senator Frith: They are first~class senators.
Senator Doody: Most senators in this Chamber are first-class
senators. I hesitate to make exceptions.
Senator Murray: Unless provoked.
Senator Doody: My modesty compels me to reply that I do
not include myself in the second class. I can assure honourable
senators that if they cease interrupting, I will get through my
speech more quickly and everyone will be much more comfort-
able; so, if you will just bear with me for a few moments, I will
continue my diatribe.
The set of rules that we play with in Canada today is
different from the set of rules which would allow provinces to
aspire to the top rank. As an example, I would describe the
condition in Newfoundland as it is now set forth. Newfound-
landers may not at this point in time aspire to greatness. We
can aspire to move from dependency to mediocrity, but never
can we aspire to joining the elite; for, you see, we have been
told in a public statement by the present government’-
Senator Olson: I don‘t agree with that.
Senator Doody: Just bear with me for a second. If the
honourable senator agreed with me, I would think there was
something wrong with my logic.
We have been told by the present government–of which the
minister who has just spoken is one of the more articulate and
intelligent, and God help the country-—that we may keep our
own provincial income, for the purpose of public expenditure,
the revenue from the Hibernia discoveries and the possible
revenue from other such resource finds in the offshore area;
and Newfoundland may continue to get that revenue in total
until, and only until, we reach the national average. Then,
honourable senators, the revenue is to be diverted to Ottawa. If
we fall below the national average, presumably we get some
An Hon. Senator: It is shared.
Senator Doody: That is not the last offer.
Senator Frith: Yes, it is.
Senator Doody: That is a public statement that was made,
that we will bc allowed to retain all the revenue from the
Hibernia find until we reach the national average-
Senator Olson: That is where it remains at 100 per cent.
Senator Doody: ’—and then, when we reach the national
average, once again we are allowed to stay there. This concept
of built-in national average is absolutely repugnant and cannot
be acceptable when we are not allowed to aspire, to reach
above that level. Ilonourablc senators can shake their heads
and say, “That is not what was intended,” but I am telling
them that that is what was said.
Senator Olson: That is a distorted argument.
Senator Molgat: Will the honourable senator permit a
Senator Doody: Certainly.
Senator Molgat: Are you saying that after it has reached
the national average, the province of Newfoundland would not
share at all’?
Senator Doody: No, Idid not say that.
Senator Molgat: That is the inference.
Senator Flynn: No.
Senator Molgat: That is certainly the inference you have
left, if you are saying that is where it ends. Make yourself
Senator Doody: I am trying to, but I keep being interrupted.
Senator Molgat: Start off by being clear.
Senator Doody: Honourable senators will have to put their
own interpretation on clarity in their own particular areas and
in their own way. I can only be responsible for what I say, not
for how the honourable senator interprets what I have said.
What I said was that the Government of Canada has said that
the total revenue from the Hibernia area will go entirely to the
Government of Newfoundland until Newfoundland reaches
the national average. That” is right. After that, the revenues
will be diverted to Ottawa.
Senator Olson: No; there are different percentages.
March 4, l98l SENATE
Senator Doody: Honourable senators will get into all sorts of
trouble, physically and emotionally, if they don’t relax a
minute. I am saying that we then get into some kind of sharing
Senator Molgat: Ah, all right,
Senator Doody: That does not bring us above the national
Senator Asselin: You are so excited.
Senator Doody: I am saying that we are guaranteed middle»
class status in perpetuity; we will forever be getting the
national average. That concept is insulting to everyone in
Canada, everywhere in Canada, and I consider that clarifica-
tion should be made publicly by honourable senators who are
just as upset by this as I am. Surely, everyone in Canada
should have the right to aspire to the ultimate. If it is not
attainable for some reason or other, so be it; but, at least, such
aspirations should not be denied in advance.
Anyway, the principle of special status is demonstrated in
the amending formula itself. Special arrangements are made
for Prince Edward Island and the Atlantic region—’and they
should be, because of the way this weird formula is designed.
But the same problems arc present in the Manitoba and
Saskatchewan position, and no effort is made to correct that
situation. That is unacceptable, and I would submit that it is
Senator Asselin: Good enough.
Senator Doody: We cannot, in Canadian society, institution-
alize inequality. I know that in a free society, in a country as
huge and regionally different as ours, such differences are
inevitable, In an evolving free society, such as Canadian
society, total equality is impossible, even total equality of
opportunity. Economic pressures, population shifts and other
factors will make differences occur from time to time and from
region to region. Hence, this magnificent concept of equaliza-
tion-a concept which, ironically, is to be written into our
proposed Constitution side by side with the elitist principle of
inequality found in the amending formula. When one considers
the tremendous political clout of the two provinces which are
to be given the veto—political clout by virtue of their very
large representation in the Commons—one must seriously
doubt the motives of the framers of the document.
To further underline the inequality, the unfairness, of the
proposed amending formula, we must consider the infamous
referendum clause itself. Under this delightful arrangement, a
referendum can be set in motion by the federal government,
and only by the federal government, and that same federal
government is dominated by the large representation of the
two provinces which have already been given an absolute veto
power. How anyone in this chamber can justify that particular
arrangement is beyond my comprehension.
I fully understand, honourable senators, the sentiments and
the position of Senator Cook, a fellow Newfoundlander of
whom I and all Newfoundlanders, regardless of political con-
viction, feel justifiably proud.
Some Hon. Senators: Hear, hear.
Senator Doody: I hope that other honourable senators will
find it in their hearts to demonstrate the courage of their
convictions, just as Senator Cook has.
Some Hon. Senators: Hear, hear.
Senator Doody: The idea of having a referendum procedure
at hand, as a standard part of the amending formula, is a
dangerous one. To have it in the hands of only one of the ll
partners in Confederation is to compound the danger.
Honourable senators, I fully intended to go into more detail
on the various contentious parts of the proposed package, but,
as I said earlier, it has been well said before by many members
of both houses. I intended to refer to the omission of God and
of the family-—~-those ill-advised and unfortunate omissions
from the proposed Constitution; but my friend, Senator Mac»
donald, voiced my sentiments a few days ago, and I thank him
In conclusion, let me ask honourable senators to consider
that there is still time to think about it. A proposal was made
in the committee to split the package, to ask the United
Kingdom Parliament to give us simple patriation with the
Vancouver formula. We know that a consensus of premiers
can be found based on those items. If we do that, which is
simplicity itself, Canada will be the better for it. If we persist
in the course that we are now following, it could very well be a
vcry dangerous and perhaps disastrous course,
Hon. Royce Frith (Deputy Leader of the Government):
Would the honourable senator permit a question, for
Senator Doody: Surely. ,
Senator Frith: You used the term “national average”. The
purport of the agreement, or negotiation, as I understood it,
was that I00 per cent of the revenue from the offshore
resources would go to Newfoundland until that province
ceased receiving equalization payments, at which point it
would have to contribute, though the formula was never set.
When the honourable senator speaks of a national average, is
that what he means?
Senator Doody: When I was involved in these discussions,
the offer by the Government of Canada to the eastern prov-
inces was a 75-25 sharing split. We never could ascertain what
the net was. It has always been very difficult to define what
comes out of the gross before you get to the net and the 75-25.
What was perhaps even more important to the provinces,
and particularly to my province, was a lack of control over the
rate of development. The social factors in the province are
obviously quite different from perhaps the needs of the Gov-
ernment of Canada in terms of the balance of payments, cash
flow, and so on.
Since I got out of that scene another offer has been made to
the provinces which I understand to be that 100 per cent of the
revenue will go to the province until the province reaches the
national average~nol until it reaches the point where it is not
DEBATES March 4, I981
entitled to equalization payments. I think that with the excep-
tion of Alberta right now, under the formula, the only prov-
inces that are really not entitled to equalization are Ontario
and British Columbia; and with regard to Ontario that is only
because of the act that we passed in this place a couple of
The national average is the basis of the formula by which
equalization is distributed. The national average is the average
income that is taken across Canada, and it is the average,
literally, of that. It is not the highest, which is British
Columbia, Alberta and Ontario; it is the average of all 10.
Senator Frith: Well, honourable senators, I had thought
that during the last discussions exactly those words were used,
namely, “until the province stopped receiving equalization
payments.“ But I can always look it up, and ifl am right I can
put it on the record when my time comes.
Senator Doody: It could very well be. If so, it is an entirely
different ball game.
Hon. Gildas L. Molgat: Would the honourable senator
permit another question?
Senator Doody: Certainly.
Senator Molgatz Could the honourable senator tell ns what
kind of sharing there is between the provincial government and
the national government after the national average is reached‘?
Senator Doody: My understanding of the matter is that the
revenue will then go into the national revenue pot, and if there
is an equalization entitlement, then Newfoundland will get its
proportionate share of that equalization, like the other
Senator Molgat: And there is no direct share to the province
Senator Doody: As I say, under the first arrangement,
75-25, the province involved will get a direct entitlement, Up
to the equalization, or the average standard, my understanding
is that the revenue will go into that common pot. I would
certainly welcome an elaboration on this, because the people in
Newfoundland have the understanding that I have just deliv-
ered to honourable senators.
Hon. H. A. Olson (Minister of State for Economic Develop-
ment): Will the honourable senator pcrmit one more question?
Senator Doody: Go ahead.
Senator Nurgitz: No spccchesl
Senator Olson: When the honourable senator began his
speech he praised the committee, which was an essential part
of the process in bringing forward the resolution which is now
Senator Smith: He did not praise it at all.
Senator Olson: Yes, he did. He praised the joint chairmen,
all the members of the committee, and just about everything
that went on in that process. ~
Senator Smith: Except the result!
Senator Olson: That is the next point. Then he agreed, as I
understood him, with the content of the resolution. Irle con-
cluded, however, by opposing the process. I do not understand
that kind of logic.
Senator Smith: Or, we might add, any logic.
Senator Doody: What was the question? I owe you that one,
from way back!
Senator Olson: The question is: Could the honourable sena-
tor give some explanation of how he arrives at the conclusion
that he should oppose the process that he began his speech by
praising, even praising most of the content that was delivered
out of the process, and yet winds up opposing the process? I
am trying to find seine rationalization for that logic.
Senator Doody: The process in question is that of sending
this package to the United Kingdom and having them enact
Canadian laws on our behalf, to the accompaniment of the
washing and airing of all this laundry that has been going on
in Canada over the past years, and its exhibition for public
amusement in the United Kingdom. If the honourable senator
does not feel any repugnance or distaste or discomfort as a
result of all this, and if he cannot see anything wrong with it,
there is no point in my trying to enlighten him. Obviously, it is
Hon. Charles McElman: Could I ask a question of the
Honourable Senator Doody? It is a very simple question, Mr.
Leader of the Opposition, from a very simple person.
Senator Flynn: Just at the level of Senator Langlois,
Senator McElman: Have fun,
Senator Doody, you mentioned the earlier arrangement—
Senator Doody: You mean the earlier proposal.
Senator McEIman: -proposal. For New Brunswick it was
an arrangement, New Brunswick actually signed an agree-
My recollection of that was that it was 75 to the province
and 25 to the federal authority; but out of that 25 per cent the
federal government would pay all administrative costs. That is
my understanding of the New Brunswick arrangement. Was
that the arrangement you spoke of for Newfoundland, as it
Senator Doody: That was the same arrangement exactly.
The administrative costs were to be borne out of the 25 per
cent federal share. Where the 100 per cent would come from—
and that would include the royalties, taxes, lease rights, and so
on»–was never properly explained or given out; but New
Brunswick, Nova Seotia and Prince Edward Island, in all
fairness, were satisfied at that time with that arrangement.
Newfoundland never did feel comfortable with it.
Hon. Harry Hays: Honourable senators, first, I would like
to say how stimulating I found the experience of being one of
the joint chairmen of the Special Joint Committee on the
Constitution. I learned a lot about the members of the Senate,
about the dedication of members of Parliament, and about the
March 4, 1981 SENATE
great work that they did on this committee. The first fe\v times
wc met I had the impression that the members of the commit-
tee were a group of people who did not know one another very
well and who did not know exactly what was going to take
place. Then, as the committee settled down to its task, I feel
quite sure that many members made lasting friendships,
regardless of their political stripe.
In this chamber this afternoon I see, across the way, Senator
Asselin and Senator Tremblay. These two men missed very
few of the meetings of the committee. They generally support-
ed thc various clauses we were dealing with, and were general-
ly supportive of the witnesses we were examining, with the
object of trying to see if we could improve upon the proposed
From my side of this chamber, Senator Lamontagne, Sena»
tor Molgat, Senator Pettcn and Senator Lueier were present;
and I could list many more. After all, 131 members of
Parliament sat on the committee during the three and a half
months that we discussed the resolution. No less than SI
senators—~–over half the Senate membership~——at one time or
another were around the table making their contribution. As I
say, it was a stimulating experience.
Furthermore, I had the opportunity of working with a very
bright young man from the House of Commons, Mr. Serge
Joya], and that was also a great experience. We sat for 306
hours, and I do not think we had one cross word. I would often
say to him when he chaired a meeting, “Down on my ranch we
let them have a pretty loose rope.” That is the way we tried to
do it. I do not think we cut anybody off if he had a contribu-
tion to make. Sometimes, when a witness was allotted one
hour, we gave him three and a half hours. It just was not the
case that we choked anybody off.
I would like to thank all the people we had an opportunity to
work with. If we had not had such a group of people, it would
have been an unpleasant experience; and I think it was any-
thing but that.
Honourable senators, we are in the midst of a very impor-
tant debate on a serious matter. Some say that the future of
our country is at stake. The passage by the Parliament of
Westminster of the resolution we are debating would at last
complete the process started in 1864, that of creating a fully
sovereign nation called Canada.
At that time the Fathers of Confederation, a relatively small
group of men who were involved in the political process of the
colonies, met and debated the future of the British colonies in
North America. After much discussion they went to London,
and the result was the British North America Act, thc corner-
stone of the Canadian Constitution. –
Thc Statute of Westminster represented a major change and
a major step forward in Canada’s constitutional development.
It placed into legislative form the accepted principle that
members of the Commonwealth were sovereign bodies. Today,
Canada alone is still not fully sovereign. Canada must go to
Westminster to secure changes in its Constitution. There have
been many amendments made to the British North America
Act: to include new provinces in our nation and to enact
amendments which are necessary from the point of view of
economic and social security. Never before, though, have the
Canadian people themselves been directly involved in the
process. Never before have the deliberations on amendments to
the Canadian Constitution been available to citizens of this
country for their input.
Before proceeding further, I would like to take this opportu-
nity to thank the clerks of the joint committee, Mr. Richard
Pregcnt, of the House of Commons committees branch, and
Mr. Paul Bélisle of our own committees branch. There were
weeks when these two men and their staff worked almost 24
hours a day, preparing minutes of meetings long after the
committees members and witnesses had gone home, and yet
they would be back in the morning for steering committee
meetings. Their services were invaluable. I would also like to
thank Mr. Peter Dobell, the Director of the Parliamentary
Centre, who offered his services to the committee, without
remuneration, to aid in selecting a representative group of
witnesses and in co-ordinating their appearance before the
committee. He kept the committee creditable.
The committee heard submissions from I04 groups and
individuals covering a very wide spectrum of Canadian society:
women’s groups; organizations representing the poor in this
country; civil liberties and human rights organizations; the
business community; the aboriginal peoples; the handicapped;
and groups representing the multicultural aspect and heritage
of our nation. The committee heard from minority language
groups, churches, a group representing children, an environ-
mental group, representatives of provincial political parties
and four provincial governments.
As honourable senators who sat around the table know, the
committee sat for I76‘/2 hours with the witnesses alone, not
counting the time spent with Mr. Chrétien and Mr. Kaplan——
267 hours, all told. The committee listened. Its members asked
questions and took note of the points presented by those
concerned Canadians who appeared before it to give Parlia-
ment and all Canadians an understanding of the views, ideals
and problems of fellow Canadians.
The committee listened to the criticisms of clause I of the
Charter of Rights by Mr. Gordon Fairweather, Chief Com-
missioner of the Canadian Human Rights Commission; by the
Canadian Civil Liberties Association; by the Canada West
Foundation; by the Advisory Council on the Status of Women;
by the Council for Yukon Indians; and by many other groups.
And that clause was changed. The committee listened to the
Canadian National Institute for the Blind, the Canadian Asso-
ciation for the Mentally Retarded, and the Coalition of Pro-
vincial Organizations of the Handicapped with regard to the
necessity for including the handicapped in the enumeration of
bases upon which there should not be discrimination.
Regarding the clause on equal rights, the committee listened
to I8 organizations representing aboriginal peoples, including
the National Indian Brotherhood, the Inuit Committee on
National Issues, and the Native Council of Canada, and was
DEBATES March 4. 1981
convinced that the rights of aboriginal peoples should now be
included in the resolution, before the Constitution is patriated.
All the amendments proposed, all the amendments made and
all the clauses added to and included in the resolution came
about as a result of the submissions of witnesses, because they
did appear and because the committee did listen. One hundred
and seven amendments were proposed to the original resolu-
tion, and 66 of those amendments were carried and appear in
the revised resolution before us today.
It is my deepest regret, however, honourable senators, that
only four provinces and two territories made representations to
the committee. The committee was prepared to hear from the
provinces for days if necessary, but six provincial premiers—~
including my own premier, Mr. Lougheed-——did not see fit to
send provincial delegations to give the position of their prov-
inces, nor to represent the interests of their citizens. These
same premiers can claim that the federal government sin-
glemindedly refuses to negotiate or to discuss the package with
them, but in effect is that not what these premiers have done?
They have refused to represent their constituents before a
committee made up of all parties in Parliament: 131 members
ofthe House of Commons and 51 senators, at all times divided
almost equally as between east and west. In fact, they have
refused to make their position clear to duly elected representa-
tives of residents of the provinces they govern. The Joint
Committee on the Constitution was there to listen. It did
listen. Because groups and individuals were concerned enough
to appear before it and to educate the committee members,
changes were made to the resolution. There is no doubt in my
mind that, had the other six provinces wished to appear before
the committee, we were prepared to receive them at any time,
without notice, if necessary, up until the last day. So I believe
that this resolution package could possibly have been improved
Senator Flynn: In what way‘?
Senator Hays: Could you ask your question when I have
finished? The Honourable Leader of the Opposition will
understand that I am trying to concentrate.
As an Albertan, I am very sorry that Mr. Lougheed chose to
ignore the committee. Whatever the political differences that
divide us, he is the premier of my province and he does
represent the interests of Albertans. I agree wholeheartedly
with the principle expressed by Mr. Grant Notely, the leader
of the New Democratic Party in Alberta, whose party
appeared before the committee, when he said:
We feel that there are some important changes that have
to be made in the resolution and important changes, not
only to the country, but from our vantage point as Alber-
tans, crucial changes should be made, and as a conse-
quence, we feel that Alberta’s elected officials should be
making representations on those changes before this
The people of Alberta deserved Mr. Lougheed’s representa-
tions. Indeed, Mr. Lougheed had the obligation to represent
[Senator Hays.) V
before the committee the people who had elected him. As an
Albertan, I was pleased to see that both the New Democratic
Party, the official opposition in Alberta, and the Social Credit
Party, represented by its leader Mr. Rod Sykes, saw fit to act
responsibly and to express the views of the people of Alberta to
the rest of the country. Instead of doing that, Mr. Lougheed
chose to go to Montreal to speak to the people of Montreal. He
was willing to explain Alberta‘s position to a province whose
government is committed to breaking up this country by
pulling Quebec out of Confederation, but he was not willing to
represent two million Albertans before a committee which
included, incidentally, six elected members from Alberta as
well as myself and Senator Bielish.
Some Hon. Senators: Hear, hear.
Senator Hays: This was a committee which was trying to
build a new, stronger Canada. There may be only two million
Albertans, and two million Albertans does not constitute a
large portion of the Canadian population, but I sincerely
believe that their views, as expressed by their duly elected
government, should have been presented, and I believe that
Mr. Loughced let them down.
I have noticed there is a feeling among Canadians that.
because Mr. Lougheed did not appear bcfore the joint commit-
tee, Albertans do not care about the resolution before the
committee and before us. Honourable senators, 99 submissions
were received from Alberta by the committee. From Ontario
there were 294 submissions, and from British Columbia there
were I00 submissions. In terms of the numbers of submissions
by provinces, Alberta was third after Ontario and British
The committee heard directly from the Alberta Chamber of
Commerce, from the Indian Association of Alberta, from the
Alberta Social Credit Party, the Alberta New Democratic
Party, the Campaign for Life and the Canadian Bar Associa-
tion. Thcse were all represented by Albertans, and, in turn,
these groups represented perhaps most of the people in Alber-
ta. Albertans do care about Canada. They do care about the
Constitution and about patriation. The members of the coin-
mittee know that Albertans are interested in participating in
the future of Canada. I only wish more Canadians were aware
At the outset of my remarks I said that I would express my
views, and I mean to do so. The committee‘s work has been
praised by members of Parliament from both chambers and
from all sides, by all parties. The committee was successful in
providing a forum for discussion of fundamental changes in
Canada’s Constitution. Because the proceedings were tele-
vised, Canadians were given the opportunity to watch the
As members of this chamber are aware’-~»and I think par-
ticularly of Senator Goldenberg-~-despite all the excitement
about the fact that the proceedings of the committee were to
be televised, it was the Standing Senate Committee on Legal
and Constitutional Affairs, chaired by the Honourable Senator
Goldenbcrg, that pioneered the use of electronic means for
March 4, 1981 SENATE
broadcasting parliamentary committee proceedings, when its
proceedings were televised in I977.
I am of the opinion, however, that the broadcasting of
committee proceedings is not to the bene?t of any committee
or its work. I want to make it clear that that is not because I
believe Canadians do not have the right to know what goes on
in committees. Nor am I opposed to advancement or to
change. What does concern me about the broadcasting of
parliamentary committee proceedings is that the mere fact of
broadcasting the proceedings sets a tone to the proceedings
which tends to undermine their value. Senators know that the
committees on which they work operate largely without parti-
san bias. The ability to get on with the job of the committee
without the kind of obstruction that is typical of the other
place results in the tremendous productivity of our Senate
committees. The latest example of the good work of a Senate
committee can be seen in the report of Senator MeGrand’s
subcommittee on childhood experiences as causes of criminal
behaviour, entitled Child at Risk.
During the in camera sessions of the joint committee, all the
committee members, from all parties, made contributions in
the spirit of co-operation, which I think was greater than
during the broadcast deliberations because they did not have
anyone to impress. In saying that, I do include members of my
own party as well.
Broadcasting committee proceedings tends to enhance parti-
sanship among committee members. At the risk of offending
my friends on all sides, including members of my own party, I
must say that it tends to promote grandstanding. Certainly, all
the members of a committee should have the opportunity to
express their views, whatever those views may be; but, in my
opinion, show business has no place in the decision-making
process of a committee.
Despite this adverse broadcasting aspect, the Joint Commit-
tee on the Constitution was productive. The resolution before
us today is substantially different from, and better than, the
one we were presented with on November 6. All the changes to
it were made by Canadians in Canada. Constitutional change
is necessary in any country. The British North America Act of
1867 was not the same as the act we have today. Twenty-two
amendments have been made to it over the years. For example,
an amendment made it possible for Newfoundland to join
Canada; an amendment established Medicare; amendments
established the Canada Pension Plan and unemployment insur-
ance. No one can say that those amendments were not for the
good of all Canadians, and I sincerely believe that the amend-
ments to be made to the Canadian Constitution by the passage
of this resolution by the Parliament at Westminster will also
be for the good of the Canadian people.
The committee, in fact, spent most of its time on that part of
the resolution most directly affecting the people of Canada-W
the Charter of Rights. Most of the groups which appeared
before the committee presented their views on how such a
charter would affect that aspect of that segment of Canadian
society with which they were directly concerned. The over-
whelming majority supported the entrenchment of a Charter
of Rights. With the patriation of the Constitution, including a
Charter of Rights, all of those groups and individuals -indeed,
all Canadians—-will have their rights entrenched wherever
they may live across this country. In my opinion, the amend-
ments that will be made to the Constitution, including the
entrenchment of at Charter of Rights, will make Canada a
better place in which to live for all Canadians.
Eighteen groups appeared before the committee to represent
the aboriginal peoples, and because they were able to convince
the committee that they have real problems and real griev-
ances, amendments were introduced to the resolution to better
the position of the native people of this country. Personally, I
am pleased that the aboriginal peoples will be recognized in
the Constitution and that the native peoples of this country
will have entrenched in the Constitution their treaty, their
traditional land rights and their rights as a distinct cultural
entity—their rights as a people.
The committee heard moving testimony from the Nisliga
Tribal Council. Chief James Gosnell pointed out that:
-~in the first Constitution of this country, this nation, our
people, the Indian people, were never given an opportu-
nity to express ourselves. In every one of the laws affect-
ing out‘ people throughout Canadian history, never at any
time were our people ever approached . . . This is the first
opportunity that we have had to express ourselves.
Let me repeat that last statement: “This is the first opportu-
nity that we have had to express ourselves.” Indeed, honour-
able senators, this is the first opportunity for all Canadians to
express themselves on their Constitution.
Mr. Bill Tooshkenig, of the Association of Iroquois and
Allied Indians, made the following statement-—-and I am sure
he would agree that it would apply equally to all native
If \ve had the facilities and resources to get the message
across as to what Indians actually want to the people of
Canada, they would support the Indian position.
I rather agree with that, honourable senators. I have lived
beside two reserves since the day I was born, and yet I never
really did understand the Indian problems until, on the com-
mittee, we listened to these people for days and days. I have
now, at last, come to the conclusion that their problems can be
Honourable senators, their appearance before the committee
resulted in the inclusion of clause 33 and the amendment of
clause 24, and it represents at least the beginning of the
rectification of many of the past injustices which have been
suffered by these our first people.
Another example of an inclusion in the Canadian Constitu-
tion which will better the lot of all Canadians is clause 6 which
deals with mobility rights. This clause will allow Canadians to
live and work in this country wherever they choose. It will
allow Canadians to take advantage of opportunities to employ
their skills, which may not exist in the province of their birth
or residence. Perhaps on a non-economic level it may even
I944 SENATE DEBATES March 4, I981
have a more beneficial effect for Canadians, for such an
amendment will provide the opportunity for Canadians from
all parts of Canada to experience for themselves the differ-
ences that make this country.
I do, of course, understand the point which concerns our
colleague, Senator Lucier, with respect to the problems which
this clause may entail for disadvantaged regions or regions of
this country where the cultural, economic and even ecological
environment is fragile. I believe that there should be safe-
guards for areas which need them, such as the Yukon and the
Northwest Territories. This provision smooths the way for
affirmative action programs and is one aspect of the solution
which must be used where possible. But, overall, if we are to be
truly Canadian citizens we must have the right to be citizens
of the part of this country we choose.
Clearly, the language provisions in the charter are a step
forward and an improvement on the existing minority lan-
guage provisions, and also on the position of both the French
and English languages as official languages of this country.
For the first time the French version of all constitutional
documents will be prepared and will have equal authority with
the English versions. Also, the entrenchment of minority lan~
guagc education rights is a provision which is long overdue. ln
an officially bilingual country, it is imperative that citizens of
both language groups have the opportunity to be educated in
their mother tongue.
I have already mentioned the inclusion of the rights of the
handicapped in clause IS, and I must say that I welcome this
amendment which will increase the standard and the quality of
life of all those who suffer mental or physical disability. In his
presentation on November 25, Mr. Ron Kanary, vice-chair-
man, Coalition of Provincial Organizations for the l~land-
icapped, made a statement which sums up and articulates the
purpose and intent ofa charter:
The Canadian Charter of Rights and Freedoms will
articulate the most basic and cherished values of our
society and place them in the basic legislation of our land.
This alone will set a new tone which ofitself will do much
to redress the injuries of exclusion and prejudice which
have been our inheritance.
While Mr. Kanary was referring directly to the problems of
the handicapped, it is a statement that could well apply to all
those who are affected by any clause of the charter. Approxi-
mately one week before the committee rose, four people-two
in wheelchairs and two with secing~cye dogs—-came into the
room and waited at the back until the proceedings were over,
at approximately ll.30 p.m. At that point they came forward
and presented Serge loyal and myself with “handicapped”
pins. With tears in their eyes they thanked us and the other
members of the committee for all that we had done. I shall
wear that button on my lapel for as long as I live. _
Hon. Senators: Hear, hear
Senator Hays: One cannot pick up a daily newspaper in
Canada today without reading about somebody doing some-
thing for the handicapped. Usually it is something that has
ncvcr been done before. Honourable senators are probably
aware that six out of every hundred people are handicapped in
some way. This ratio is equivalent to the ratio of people who
The entrenchment of the equalization principle in Part III,
clause 34, is also for the better. While this is not a new
principle, it is very important to the health of our federal
system. The other day Senator Stanbury pointed out that the
per capita income from all resources in Prince Edward Island
in I978-79 was $3, while the per capita income from all
resources in Alberta was $1,874.
That is a big difference in revenue, and in the amount of
money which a province has available to work with. In I98!-
82 Prince Edward Island will receive $765 per capita in
equalization payments, and even at that figure there will be a
huge difference between the amount of money available to
Prince Edward Island and that available to Alberta to provide
services for their residents. In all, the federal government will
redistribute $3,627.2 million in equalization transfer payments
The enormity of the discrepancy between Alberta and
Prince Edward Island has not always been so. It is not so very
long since Alberta was a “have not” province which received
equalization payments from the federal treasury. Few of us
would have predicted 25 or 30 years ago the extent to which
Alberta‘s wealth has grown. Few of us know what the situation
in this country will be 100 years from now. How many of us
would say with certainty which provinces will be “have” or
“have not” even Z5 years from now? It may be that New-
foundland will be in the position Alberta is in today, as
opposed to being on the receiving end of equalization pay-
ments. But those equalization payments will have helped New-
foundland to attain that position, and their entrenchment in
our new Constitution is of fundamental importance today and
for our future.
There are other matters of equal importance, the inclusion
of Part VII, clause 56, on resources will have played just as
large a part, if not a larger part, in the future of all the
provinces. When Mr. Blakeney~one of only four provincial
premiers from whom the committee heard–appeared on
December l9, he told us that in Saskatchewan:
—resources provide more than a quarter of our provincial
government revenues, which are used to finance a broad
range of social and economic benefits for Saskatchewan
residents. Resources represent our best hope of providing
long-term stability and diversity, or ironing out the booms
and busts of a very volatile economy. Resources are the
key to Saskatchewan’s prosperity.
If honourable senators would like the reference, I will provide
Of course, honourable senators, we all know that while the
figures are a little different, the situation is the same in
Alberta, British Columbia, Ontario and Quebec with regard to
hydro power, and, perhaps soon, it will be the same in New-
March 4, l98l SENATE
foundland. Resources will not simply be the key to prosperity
but will have opened the door to prosperity.
The amendment to the resolution which clarifies the provin-
cial ownership and control of natural resources certainly puts
the provinces in the best position they have ever been in to
achieve prosperity. Mr. Grant Notley, Leader of the Alberta
New Democratic Party, while presenting his party’s brief
before the committee, told us that in one year Alberta‘s
revenue would increase by between $600 million and $700
million as a result of the amendment on indirect taxation, and
the increase in revenue to other provinces would be substantial.
Thus, the inclusion of the resource clause was not a minor
matter, and it was accomplished, in part, because Mr. Bla-
keney took the time. He served the people of Saskatchewan
well by appearing before the committee-—and I remind hon-
ourable senators that some premiers did not appear.
As an aside, it is interesting to note that not one oil company
even approached the committee, either by way of written
submission or as a witness. Maybe they were afraid to come
before the committee. Personally, I prefer, for various reasons,
to believe that they did not see the need to come. I prefer to
believe that they trusted the government and they liked the
The amending formula provided in the resolution is yet
another example of how the people of Canada will be better
off with the passage of this resolution by Westminster. We
have heard the former Prime Minister, Joc Clark, say that this
formula creates two classes of province, one with an absolute
veto and one without. While it protects the culture of Quebec,
it also takes into account a large proportion of the population
of the province of Ontario. It also provides for the first time
veto rights to the provinces. Presently no province has a veto
over anything. I think it is important to remember that the
formula provided in the resolution is an interim amending
formula. If agreement can be reached within two years after
patriation on a proposal for a different amending procedure,
this formula will be put to the people in a referendum. The
federal government has spent years negotiating an amending
formula, but has been unable to get agreement. The provinces
cannot agree among themselves. The situation cannot go on
indefinitely. Canada cannot afford it; it cannot afford to be
faced with divisive wrangling every time an amendment must
be made to the Constitution to allow legislation to be passed,
as in the case of the pension legislation, the unemployment
insurance legislation and many other pieces of legislation.
As we are to bring our Constitution home to Canada, it is
necessary to have an amending formula. This may not be the
ideal formula, and as Mr. Chretien has said:
There are ?aws in every aspect of it.
However, he went on to say:
I do think there is a time in history where we have to take
our responsibilities because when you want to please
everybody you do not touch the problemw
Notwithstanding its imperfections, this formula, a modifica-
tion of the Victoria formula, is the only one that has any claim
whatsoever as one which the Prime Minister and all the
provincial premiers of the day could agree upon. We need an
amending formula, and this is the best that we, as Canadians,
have yet drawn up.
You know, honourable senators, Canada has been without
the power to amend her own Constitution since there has been
a Canada. No other nation must work untler this handicap. It
is not only the Liberal government but the last two Conserva-
tive governments as well which have tried to reach an agree-
ment with the provinces, and tried unsuccessfully. What are
we, as Canadians, to do? The provincial premiers cannot agree
among themselves on an amending formula, on a Charter of
Rights, on court action, or even on a trip to England. To wait
for any agreement among the provinces, let alone unanimity,
will cause more delay in the patriation of the Constitution, and
more frustration of the entrenchment of rights.
Honourable senators, we live in a federal state. The Parlia-
ment of Canada is the federal Parliament made up of members
elected and appointed from across the country. The federal
Parliament speaks for the peoplc of Canada with as much
legitimacy as the provincial governments. Should the federal
institution place itself at the mercy of the provinces who wish
to bargain with the rights of their residents for more power?
Honourable senators, I say: no, Should the federal government
let the idea of patriation die because there is not unanimous
agreement? Again, honourable senators, I say: no.
It is often the case, in any endeavour, that if no one takes
the initiative and tries to accomplish something, nothing gets
done. Sometimes it takes someone with vision, someone with
courage and determination, to accomplish things that others
have not been able to. This was the case with Mr. Diefenbak-
er’s Bill of Rights. He fought long and hard for it, and, I will
admit, against opposition from members of my party both here
and in the other place. This was also the case with Mr.
Pearson‘s determination that Canada should have the best
medicare system in the world, the best pension plan in the
world, the closest possible to a free post-secondary education
system, and a distinctive Canadian flag. The day he asked me
to join his cabinet in 1963, Mr. Pearson told me that these
were the dreams he had for Canada. These were the things
that he wanted to accomplish for Canada as Prime Minister.
He went a long way towards accomplishing them, against
considerable opposition and against considerable odds and, I
think, all Canadians are proud and grateful that he was able to
Mr, Trudeau also has his vision of Canada. He also has
something very important which he wants to accomplish for
Canada—the patriation of the Constitution. Other prime min~
isters have made attempts at patriation, and earlier prime
ministers have had other priorities. Mr. Trudeau‘s priority is
patriation. He is the person with the courage and determina-
tion to accomplish his vision, just as Mr. Diefenbaker and Mr.
Pearson did. Certainly, he has invested more time, and he
certainly has put more effort than any other prime minister
DEBATES March 4, l98l
into trying to reach an agreement with the provinces on the
Since I867, a total of 78 days have been spent on constitu-
tional discussion at federal~provincial first ministers’ meetings.
Mr. Laurier spent six days; Mr. Borden spent four days; Mr.
King spent fifteen days; Mr. Bennett spent eight days; Mr. St.
Laurent spent eleven days; Mr. Pearson spent eight days; and
Mr. Trudeau spent twenty-six days—~and this does not include
federal-provincial meetings at the ministerial level.
Senator Smith: That is a day and a half a year.
Senator Hays: Well, that is one~third of the time that all the
prime ministers, including Sir John A. Macdonald, spent on it.
Mr. Trudeau has been accused of having an obsession with
patriation of the Constitution. It is, I think an unfair accusa-
tion, because, honourable senators, if one is going to accuse
Mr. Trudeau of having an obsession with patriation, one must
equally accuse Sir John A. Macdonald of having had an
obsession with Confederation.
Actually, one might well make comparisons between Mr.
Trudeau and Sir John A. Macdonald. Sir John A. Macdonald
faced a revolt by five of the seven provinces demanding better
financial terms and wider revenue powers for the provinces,
and Constitution changes limiting the powers of the dominion
government. Even then, provinces were demanding Senate
reform; they wanted to be able to appoint one half of the
senators and to reduce the term of the appointment to four
years. Sir John A. Macdonald, the leader of the Conservative
government of the day, also met the provinces in the courts in
defending federal powers and jurisdiction. He was also faced
with the organized opposition of the provinces to national
policies and national leadership of the federal Parliament.
Professor Lovell Clark, of the University of Manitoba, has
written that if Sir John A. Macdonald had acceded to the
demands of the premiers in I887, Canada would have become
a mere league of states-—“if indeed it continued to exist.”
Professor Clark agrees with that eminent Canadian historian,
Dr. Arthur Lower, and I agree with both of them, that
Canadians must face up to the question of where the ultimate
authority resides in this country—with Parliament or with the
Professor Clark wrote, and I paraphrase:
If the latter prevail in their view that Canada is merely a
loose union of ten provinces. . . then goodbye Canada.
He went on to say that if Prime Minister Trudeau can resolve
No name will go down in history in greater honour than
Some Hon. Senators: Hear, hear.
Senator Flynn: That‘s what he wants.
Senator Hays: This comparison of present-day conflicts with
conflicts of the past is useful in another way as well. How
many of us, honourable senators, remember Sir John A.
Macdonald’s court battles with the provinces? How many of
us remember the debate on the change in the citizenship law in
l946 when Mr. T. L. Church, a member of the Conservative
Party and of the loyal opposition in the other place, said of the
bill, that it “invades the jurisdiction of the provinces”? He
went on to say:
This will be one of the most unfortunate measures ever
brought before the House of Commons and will create
more disunity in Canada than we have seen since
Seventeen years ago many of the same arguments and
charges used about the divisiveness of the resolution before us
were made in another debate. Mr. Diefenbaker, during the
flag debate, said:
You cannot force a flag on the people of Canada and
secure from them that mystic something which some
ridicule as nationalism… The patriotism of men and
women who love their country. A flag design is not a trick
by which one group imposes upon others seine evidence of
Canadianism that all will not accept.
I am aware that Mr. Clark has ridiculed comparisons of our
present dilemma with the flag debate. In the other place on
Monday, February 13 he said:
We are not discussing here a symbol to be seen but an
institution to be used.
He went on to say that the aftermath of the patriation of the
Constitution with this resolution.
~-~will have us looking around to the breaking up of the
Confederation and perhaps the breaking up of the nation
l think that Mr. Clark has ignored the depth of feeling that
surrounded the ?ag debate. More than this, honourable sena-
tors, I put it to you that, while the adoption of this resolution is
not a guarantee of agreement and unity, it is also not the
divisive tool that Mr. Clark has stated it to be. The provinces
are not victims. Even a member of Mr. Clark’s own party, Mr.
George Hees, has realized that the division between the federal
government and the provinces is, in very large part, the fault of
the provinces. In an interview with the Globe and Mail, Mr.
l‘ve given up completely on the provinces. They are just
horse traders for oil and fish . . . The people are represent-
ed perfectly in this Parliament. This is where it all comes
This may be a little strong-
Some Hon. Senators: Oh, oh.
Senator Hays: —~but it is good to know that at least some
members of the opposition have accepted that the federal
government is not the villain Mr. Clark sets it up to be.
Agreement on the amendment of the British North America
Act has been the goal of many prime ministers. lt has eluded a
few and frustrated many, and Mr. Clark is one of them.
In the same year as the debate on the adoption of a new
Canadian ?ag, there was debate on the amendment of the
British North America Act to allow passage of pension legisla-
March 4, l98l SENATE
tion. Mr. Diefenbaker outlined a situation in the country in
1964 which was very similar to that which we find ourselves in
today. He lamented that the Conservative administration had
not been able to reach an agreement with the provinces to
patriate the British North America Act because of the inabili-
ty to agree on an amending formula. His government was
unable to get an agreement to the amendment of section 94 of
the B.N.A. Act that would allow the federal pension legisla-
tion to be passed. There were two conferences of attorneys
general, in 1960 and I961, on patriation of the Constitution,
and many discussions went on during that time between
federal and provincial officials. Mr. Diefenbaker was not able
to get agreement, and he deplored the situation. In a speech on
June I8, 1964, he said:
It is ironical that we, because of the failure of our
governments federally and provincially to arrive at an
agreement, still have provisions that are not applicable to
any other independent nation within the Commonwealth.
Whatever the views of the past may have been, certainly
there has been no justification for this during the last 40
In the same speech he went on to explain the reasons why
the problem has existed in Canada since the beginning, and
why it is that we do not yet have a Constitution for Canada in
We have to go to Westminster and say, “Will you plcase
allow us to amend our Constitution?” Not because this is
what Westminster wants, but because there is not in this
country of Canada that oneness, that determination of
Canadians whatever their province, to join together as one
nation to make this a great nation.-—
Senator Flynn: Is there that determination today?
Senator Hays: He continued:
No nation can achieve greatness when there are divisions
within it which deny the right of the Parliament of one‘s
country to deal with one’s own Constitution.
Mr. Diefenbaker was a wise man; he understood. Honour-
able senators opposite also understand. They had a chance to
work out a solution to the constitutional dilemma, and they
failed, both in 1960-1961 and in 1979-1980. As Mr. Diefen-
baker said, no nation can achieve greatness when Parliament’s
right to deal with the Constitution is denied. I believe that this
situation must be resolved as quickly as possible, and the
Constitution brought home to Canada with the passage of this
As Mr. Broadbent said last week in the other place, the
serious question about divisiveness is not in the short run but in
the long run. He pointed out that at the time when this
country was created, the very action of creating Canada was
divisive, but today, despite our differences, we are all proud to
be Canadians. In my opinion, the patriation of the Constitu-
tion will not be divisive in the long run. I agree with Mr.
Broadbent, when he said:
We live in one of the most difficult nations in the world to
govern, one of the most regionally and culturally diverse
in existence, but we are rich in natural resources and
human potential. We must now use this new Constitution
we are acquiring as the beginning step of a new spirit of
nation building which will lead to the creation of one of
the most just and exciting nations on the face of the earth.
We know we can do that.
Honourable senators, this resolution is not perfect. There
are, indeed, changes which I would like to see made when
Canada’s Constitution is patriated. I would like to see clear
guidelines on the “where numbers warrant” provision in the
clause on minority language education rights so that those
rights will be more equally accessible to residents of all
provinces. I also feel strongly that the property rights issue
should be entrenched.
I certainly agree that there should be restrictions on foreign
ownership of Canadian land, but I do believe that Canadians,
both individuals and corporations, should have the right to own
land anywhere in Canada. As a farmer, I am well aware of the
concerns which the provinces have expressed, on control over
land use and zoning. Therefore, I do agree that there should be
limitations to property rights, but I believe that Canadians
should be allowed to own property wherever they choose in this
country. Canada was founded by people who came here so that
they could own land and develop it. In some cases their heirs
and successors find themselves forced to move from province
to province to seek employment, and they should not as a
result, be deprived of their inheritance, as many are now,
because of provincial restrictions. The concept of property
ownership is fundamental to the Canadian way of life, and I
will certainly promote the amendment of the economic rights
clause in the Constitution after patriation.
On October 6 the Special Joint Committee on the Constitu-
tion met for the first time to consider the resolution for a Joint
Address to Her Majesty the Queen respecting the Constitution
of Canada. After 56 days and I06 meetings, with 13l elected
members of Parliament and 51 senators having taken part and
having heard submissions from 104 witnesses, and having
taken into account all the submissions made to the eommit~
tee—a total of l,262~—I believe that the resolution before us
now is better than that which the committee started with.
You know, honourable senators, for just about anything to
work well in this world people have to be guided by rules.
There have to be rules in the school house; there have to be
rules of the road. There even have to be rules in this chamber,
or senators might not accomplish anything at all.
In effect, a constitution is a compilation of rules for a
country. The resolution before us now, which I hope will soon
become a major part of the Canadian Constitution, is an
improved set of rules for Canada. It is new and it is modern. lt
takes into account the changes in attitude that this country has
experienced over the last ll4 years. It has occurred to me,
honourable senators, that it may in fact be the most modern
Constitution in the world. The witnesses who appeared before
the committee represented a very wide range of Canadians;
probably the whole 24 million were represented.
DEBATES March 4, 1981
Honourable senators, when the resolution is passed by West-
minster, as I sincerely hope it will be, there will probably have
been more people involved and taken account of in the writing
of the Canadian Constitution than have been involved in the
writing of any other country’s constitution in the past.
I am, therefore, expressing my support for the resolution, for
the leader of my party, the Prime Minister, and the Govern-
ment of Canada in their determination for Canadians to have
a constitution made in Canada.
Forty-two years ago this August, I was travelling with l2
carloads of cattle, with about 35 head in each car, and they
were destined for Scotland. I rode with those cattle in the
boxcar. We had a man for every other car to take care of
them. On top of that train there were 500 people travelling
across Canada, with no homes and with nothing to eat. That is
the way it had been since I935. I made as many as 13 trips
down to Halifax and Montreal in one year. I know a little
about hardships. I saw those fellows taking tomato cans and
cooking up roots and making soup. In August of I939 the first
gun was fired, and those guys all climbed down offthe boxcars
and fought for a country that had not been too good to them.
That is exactly what they did.
Some Hon. Senators: Hear, hear.
Senator Hays: One fellow from Brandon called Smokey
crawled into my car. Later, he wrote to me, but that lad did
not come back. At that time we did not have medicare; we did
not have unemployment insurance; we did not have old age
pensions; we did not have free education at the university
level did not have any of those things. This is something
new, modern and good, and it is something that everybody
Some Hon. Senators: Hear, hear.
On motion of Senator Marshall, debate adjourned.