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Date: 1981-03-05
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 1959-1970.
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March 5, 1981 SENATE
DEBATES I959

THE CONSTITUTION
MOTION FOR AN ADDRESS TO HER MAJESTY THE QUEEN
DEBATE CONTINUED
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.
Hon. Jack Marshall: Honourable senators, to those of you
who, with some trepidation, feel they must sit in their places
listening to me at length and bearing with me, may I extend
the same words of advice that I used to give myself when
visiting the dentist: “If I can only get into that chair and stand
the pain for the first 10 or 15 minutes, eventually it will go
away.”
Let me first add my words of commendation to those that
have already been expressed so warmly to those of our col-
leagues who participated in the long and taxing proceedings of
the Special Joint Committee on the Constitution. I admire all
of them for their dedication. Even those on the other side, who
chose a direction different from the right one taken by my
colleagues on this side, acted, I am sure, in accordance with
their conscience. There is no question, in any event, that all the
members of the committee acquitted themselves in a manner
which did them great credit, and of which they can be proud,
and for which they deserve the highest marks.
At this stage of the debate, however, honourable senators,
while I exercise my right to participatewbecause it is the right
of all of us to address the constitutional question–I am not
vain enough to think for one moment that what I have to say
will in?uence anyone sufficiently to change the direction of his
or her thinking, or cause anyone on the government side to
change his or her position vis~a-vis the resolution. Neverthc~
less, it seems to me that at this moment in our history I have a
responsibility to voice certain of my feelings concerning the
effect that the proposed changes to the Constitution will have
on some of those Canadians whom I still like to think I speak
for in Parliament.
As Senator Doody explained last evening, what we have to
say at this point in time will not change the direction of the
government in power any more than has the action of eight of
the ten premiers who have spoken for millions of Canadians; or
any more than have the many members of Parliament and
senators who have opposed the resolution and have already
spoken against it; or any more than have the numbers of
witnesses and organizations who, representing countless
Canadians, appeared before the committee looking for change.
If those various individuals, groups and organizations were
incapable of affecting a change in the questionable and con-
troversial direction the government has taken, it is not likely
that what I have to say will make any difference. Moreover, it
is obvious that the government is adamant in holding to its
position, ignoring the majority of Canadians, the very people
the government is proclaiming the changes in the Constitution
will protect.
Honourable senators, when I first came to Parliament in
1968 I was sufficiently naive to think that I could change
things for the better for the citizens of Newfoundland who had
elected me. I am beginning to doubt that now. When I first
came to this great capital of Canada I was proud to be a
Canadian. I knew I was fortunate to have been born in
Canada. During my growing~up years, as I grew older, I
realized how fortunate I was, because I was born of ethnic
parents who had fled from the fear of state rule in foreign
countries and had come to Canada, where they found comfort
and freedom in this country of great potential and opportunity.
I recollect well that as I entered a period of responsibility in
my lifetime I realized that, despite being part of a minority
group, I was accepted everywhere. I was accepted because of
my Canadian upbringing, despite that status.
My first telling experience of Canadianism befell me when I
went to war and found that there were no intcrprovincial
boundaries to cross when one offered his services to his coun-
try. I was born a Jew in Nova Scotia. I was sent to serve in a
French Canadian regiment in New Brunswick. Nobody told
me that I could not serve in another province; no one told me
that I was of the wrong religion; no one told me that I could
not serve with comrades in another province because it was not
in the Constitution; nor did anyone tell me that I could not
serve alongside French Canadians because I could not speak
French, or because that was not in the Constitution either or
was not entrenched as part of some document of rights. But I
served with those Canadians as comrades because we fought to
protect our country; we fought for a common cause.
My second telling experience of Canadianism came after the
war, when I decided to move to Newfoundland. Again I
traversed the boundaries of another country, but I was accept~
ed in that British colony without question. Then, after 1949, I,
along with my fellow Newfoundlanders, joined Canada. Some

1960 SENATE
DEBATES March 5, I981
years later, because I had entered into the new spirit of
Canadianism and had contributed towards my new commu-
nity, I was able to gain enough of the confidence of my fellow
Canadian citizens to represent them, as a comparative outside
mainlander, as their representative in the Parliament of
Canada,
Honourable senators, while I hesitate to use my own experi»
ence as a model—and I do so reluctantly——it has struck me
that my own experience is part of what Canada is all about.
Nobody ever stopped me to say, “You are not complying with
the Constitution or with the British North America Act.” I am
a Canadian by the accident of birth, and the fact that I grew
up in Canada was beyond my control. But I was free to move
wherever I wished inside or outside the country; I was free to
say what I wanted, and free to contribute to the country in
which Providence had placed me.
Honourable senators, in those days I did not know much
more about the subject of the Constitution than what I had
been taught in the few hours given to that subject in clemen-
tary school. What I do remember, though, is that every week l
stood up with my classmates and pledged allegiance to my
country and to the Union Jack, I have participated almost not
at all in the debate on the Constitution or the committee, other
than to fill in at one committee meeting, but I have heard and
read the countless words uttered by many witnesses, some with
emotion, many with brilliance. However, I have heard no one
who has yet convinced me that it is vital that we drop all our
other responsibilities and debate patriation of the Constitution
because it will better unite our country. I say that the very
opposite is happening. Despite the brilliant words espoused by
the constitutional experts that I have listened to, l see anger
and hostility creeping amongst Canadians. The words that
struck me most are those of Senator Fournier when he said
that the majority of people in his area are more interested in
the economy, in?ation, and the cost of living. I agree with him.
There are people who live in fear of losing their homes because
of high interest rates on mortgages. There are people who are
considered poverty stricken, who cannot bear the cost of living
because of rapid increases in oil prices,
O (I510)
ln I867, honourable senators, a group of pretty smart
Canadians decided to bring together the different regions or
provinces and unite them into a federation. A set of rules and
guidelines were drawn up which have brought us along as a
nation for some ll4 years. We have become a pretty proud
nation. We have not succeeded, though, solely because of those
rules that were written into the Constitution. We have suc-
ceeded because of the people for whom they were written-—the
individuals who ran away from fear and settled in a free
country, Canada; the people who saw a land of opportunity,
and suffered and endured to establish a way of life for their
families. Here we are today obsessed with the idea that
everything else must come to a halt because we must enshrine
our rights in words. We must bring home our Constitution
amended by Britain, because evidently our leaders do not have
the faith and confidence in our own partners in Confederation
[Senator Marshall.)
to do it ourselves, for our own good. I say, “Sure, bring home
our Constitution; sure, amend the Constitution,” because over
the years, as conditions change and the country progresses, the
rules must change. But, honourable senators, by all that is
right and decent, why this great obsession that all will be lost,
that Canada will collapse, if we do not patriate by July I?
In 1889, somebody by the name of Goldwin Smith said that
to make a nation there must be a common life, common
sentiments, common aims and common hopes. That was
almost 100 years ago. Before it is too late, honourable sena<
tors, we should pay heed to those words. If we have failed to
agree on a Constitution for 54 years, so what? Ifwe must wait
one, five, ten or twenty years, so be it. But let‘s not do it by
imposition, confrontation or dictate. I.ct‘s not do it in spite of
Canadians, but for Canadians, who still trust those who stand
in Parliament to protect the people they represent. There is no
earthly reason why continuing negotiations cannot eventually
succeed, regardless of how long it takes.
Honourable senators, I ask that we make a country by
human feeling, trust and faith. That trust and faith come from
inside every Canadian human being, regardless of the words
that exist in a paper written with the wrong intent.
During my military service I was struck by a basic and
simple lesson, which was that no element of a military force
could advance any faster than its slowest troops. The analogy
that I extract from that lesson relative to real Canadian life is
that our Canadian nation will not advance as long as one~fifth
of her population exists in poverty or weakness and cannot
keep up with the strong. Nothing in the Constitution will
change that fact by the written word, and nobody, whether it
be the Prime Minister or the Minister of Justice, will persuade
anyone, let alone the British Parliament, to ensure, by patriat~
ing the Constitution, that all Canadians, regardless of race,
creed, colour, origin or status in life, will be more equal.
I-Ionourable senators, that just is not so.
The one reference I want to make is to a proposition which
was turned down by the government, the clause having to do
with property rights. This emphasizes the doubt I have about
the whole exercise. Let me quote from the Canadian Bill of
Rights;
It is hereby recognized and declared that in Canada
there have existed and shall continue to exist without
discrimination by reason of race, national origin, colour,
religion or sex, the following human rights and fundamen-
tal freedoms, namely,
ta) the right of the individual to life, liberty, security of
the person and enjoyment of property, and the right not
to be deprived thereof except by due process of law:
(b) the right of the individual to equality before the law
and the protection of the law;
What is the reality, honourable senators? Let me read from
the research that I had done by the Library of Parliament;
ln Canada today little protection exists for personal or
property rights, particularly against assault by govern~
ment. In a free and democratic society, property rights

March 5. I981 SENATE
DEBATES 1961
are regarded as a most fundamental civil right on which
other rights are founded. While property rights are seen
as fit for inclusion in the Constitution of many democratic
countries and in the universal Declaration of Human
Rights, in Canada only the Canadian Bill of Rights and
several provincial bills offer limited protection for these
rights. The Canadian Bill of Rights applies exclusively to
federal matters and is limited in its scope, because its
provision for due process has been interpreted to mean in
accordance with the law. Thus any valid law, no matter
how unjust, cannot be impugncd through the Canadian
Bill of Rights.
Honourable senators, I lived in Newfoundland for many
years and represented a very poor part of the province. I saw
examples of the taking away of civil liberties and the right to
property.
I can remember the resettlement program, when the govern-
ment, on its own, decided literally to break up and destroy
whole communities. People were told that it was for their
betterment that they go somewhere else. I remember an
elderly couple, over 80 years of age, who moved from a little
place called Current Island across I00 feet of water to a place
called Pigeon Cove. I went into thcir house and talked with
them. They were very bitter. I said to the man, “What are you
going to do now, sir?” He replied, “I’m going to keep looking
out that window, right across to Current Island where I grew
up and my family was together, and just wait until I die.”
Then the famous federal government came to Newfound-
land with the idea of giving us a great national park. I was
party to the advocacy for that park, but I did not realize what
it would do to the small fishing villages, the small communities
which were tempted by a few thousand dollars and were told
that they would be better off, that there would be more jobs
for them, if they moved somewhere else. They are still bitter
and they will always be bitter.
People have always had traditional rights. They cut logs for
firewood in the winter and gained a few dollars; they fished
and they trapped; and all of that was taken away from them on
account of the fact that they could no longer go to that land
because the federal government wanted it for their Heritage of
Canada project, and for the benefit of all Canadians.
O (I520)
A Newfoundlander does not want very much, and never did.
All he ever wanted was a piece of land and a home which,
because he did not trust the government or the banks, he built
year by year and piece by piece until he had his home and felt
secure.
Today, because of the inadequacy of government, he cannot
even fish any more. If he is over 65 he cannot lay a lobster
trap; and, of course, we have given away all our fish to other
countries. Is this consistent with the traditional rights of
Canadians?
In the city of Corner Brook, just a few months ago, I ran
into a man who had a second-hand car business. The day came
when the city came along, because they had acquired the right
and the money from either the federal or the provincial
government, and said to him, “We are taking that away from
you.” He said, “What right have I to object?” They said,
“You have no right. We will expropriate, and you can go to
appeal.“ Of course, he had to take what was given him rather
than what he felt it was worth, in order to be able to provide
for the future that he wanted for himself, and to give his
children the opportunity to take over his business. Then, to add
insult to injury, the city sold him a building, and provided him
with a deed, but he found later, when he wanted to expand his
building, that there was a city pipe under the ground on which
the building was situated. This was something that was not
even apparent from the plot plan that the city had provided
him with. The result was that this man was filled with
bitterness and mistrust because he could not do what he
wanted with his property.
Honourable senators, we will never have a country if this
kind of thing is going to continue. Why could we not enshrine
that right to property in the Bill of Rights?
Another thing that has always disturbed me is the question
of inequality in regional pay rates in this country. We have a
system whereby a federal employee in Newfoundland, working
for the Minister of Transport, and doing the same job as his
colleague in Nova Scotia or Prince Edward Island or Quebec
or Ontario, gets less money than they do. If this is not creating
bitterness, then I do not know what is.
Honourable senators, we must think about how we have
ruined Canada and why we have ruined it. Somebody has to
tell the powers that be just what is happening in this country. I
see bitterness right across the nation. I see bitterness right in
my own province. I see bitterness between the premier of our
province and the federal government. All they want in my
province is ownership of their resources and their land and the
right to the resources of the continental shelf. They also want a
measure of control over their most important economic activ-
ity, the fishery, together with equal treatment with regard to
energy, and the movement of electrical energy to potential
markets. They want the protection of the rights of Newfound-
land under the Terms of Union.
We are fighting in Canada about the cost of energy and
about the price of energy and oil. There is enough hydro-elec-
tric power in Newfoundland to supply the whole of the Atlan-
tic region, and indeed, a great part of Canada. Yet we cannot
come to terms as to how that is going to be done, and as to
how we are going to transfer the power across the gulf. l could
cite many other examples, honourable senators, of this sort of
thing, but I know that time is of the essence.
We in this Senate, however, can take up the challenge, and
before anything worse happens, over the years, we should try
to convince the government to get back to the negotiating
table. There must be a rebirth of trust and faith between the
partners in this federation, and we must make sure that we
correct our mistakes so that we may continue to grow in this
great country of ours.

1962 SENATE
DEBATES March 5, l98l
[Translation]
Hon. Jean-Paul Deschatelets: Honourable senators, as all of
you, I followed very closely the proceedings of the Joint
Committee on the Constitution and I have been using the
committee reports as a bedside book these past few days.
I would therefore like to congratulate all the honourable
senators who served as regular or substitute members on this
committee, as well as both co-chairmen. These honourable
senators have done us credit by the quality of their interven-
tions and regular attendance, and thanks to television, the
Canadian public is now better able to understand our role in
Parliament. Partly because of them also, the proposal now
before us is a much improved document compared with the
original proposition.
Honourable senators, as soon as I read this unilateral consti-
tutional proposal, I felt serious apprehensions and reservations,
and until the end of the proceedings, I hoped for substantial
amendments as concerns both contents and procedure so that I
would not find myself in this difficult position, which is
probably the most difficult position I have been in since my
arrival in Parliament.
My colleague, Senator Thompson, told us recently in his
speech of the anguish he had gone through before taking a
dissenting position. I understand his very human reaction, but
for my part, my experience was quite different, and I would
like to tell you about it very confidentially-and this is not for
publication. Pressure was applied by my wife, who simply told
me: “Ifyou speak against this project, I believe that I shall not
go back to Ottawa.”
I waited to see if she would make further threats, but she
kept silent for a long time, and I concluded that my wife was
not only very cautious, but also that she was giving me the
green light.
After much reflection, honourable senators, I shall therefore
take a position which I ask you right now to respect as I
respect yours,
O (I530)
This unilateral project goes against and negates everything
in which I have believed, which I have supported and endorsed
in all my years in Parliament, If it remains in its present form,
I shall not be able to support it. ln my opinion, this unilateral
proposal threatens to break up, for all practical purposes, the
balance of powers which has always existed between our two
levels of government.
Henri Bourassa said that the Constitution of I867 was the
result of an agreement, but in spite of the difficulties brought
about by this type of federalism, this Constitution, whose
centennial we celebrated a few years ago, has served Canadi-
ans well and it has allowed the various provinces to retain and
to develop their own identity and what we are very proud to
call the Canadian mosaic.
Throughout the years, like most of you, I have had the
opportunity to speak in other provinces, and I have always
insisted on the fact that each province has special cultural
values and traditions which must be jealously protected and
[Senator Marshall.)
that these values are an asset to Canada compared to what was
then called the American melting pot.
This package, although it has some attractive aspects, seems
to me because of its unilateral nature and especially because of
its long term consequences to be used by the federal govern-
ment to impose upon the provinces a system which will result
in an increasing centralization where the federal government
will always have greater powers,
This is precisely the pitfall the Fathers of Confederation
avoided falling into in I867 and which most Canadians seem
to reject in l98l. With this package, we as members of the
Senate, are faced with a double responsibility: our allegiance
to a political party and our traditional role as senators OSpB~
cially when the Constitution of our country is involved.
According to the terms of our appointment, we have been
summoned to come and serve in this house, in accordance with
a well-established custom and tradition, the interests of our
region and of our province.
On several occasions since my appointment to the Senate, in
spite of some reservations, I voted according to my political
allegiance. However, in this case, my convictions are so deep-
rooted that I cannot sacrifice them to my party.
Senator Flynn: Hear! Hear!
Senator Deschatelets: This is such a wide package, honour-
able senators, with such far-reaching consequences that it
would take hours just to go over the main aspects. I will
restrict myself to a few points and stick to the self imposed
reasonable time limit observed by previous speakers. I shall
start by commenting on an allegation endlessly repeated to the
effect that Canada has been faced with such a serious constitu-
tional crisis for the past 53 or 54 years, that at any cost we
must get out ofthat deadlock. You will say to me: “But it does
not matter.” On the contrary, I think that is quite important.
To be able to weigh the pros and cons of a proposal, we have
first to agree on clear and specific premises. If such an
allegation was factual, many Canadians could be tempted to
justify the unilateral action of the federal government in an
effort to bring to an end what seems to be a hopeless deadlock
through the extraordinary means which it has suggested.
To my mind an impartial analysis of the facts will not
support such an allegation.
I have been in Ottawa as a parliamentarian, for almost 28
years, in fact since 1953. I therefore have had a rather
privileged view of the main events that have taken place in
Parliament over that period. Doubtless, some will claim that
since the Statute of Westminster, federal-provincial relations
have been subjected to con?icts, squabbles and difficulties
between both levels of government.
I suggest that such problems are not only understandable
but unavoidable in a federal system like ours. And we shall sec
worse in the future, whatever way we choose to go, finally.
There have been several confrontations between the Prov~
ince of Quebec and the federal government. Those of us who
were sitting in the House of Commons at the time are aware of
them. There were confrontations as a result of the introduction

March S, 1981 SENATE
DEBATES I963
of joint programs for old age security pensions, the Trans-
Canada highway, subsidies to the universities, and many
others. Still, solutions were found to all those problems.
If my memory serves me right, my honourable colleague,
Senator Lamontagnc, was one of the architects if not the
architect of the “opting out” formula which gives considerable
?exibility to the implementation ofjoint programs.
Several amendments have been made to the Constitution
since the Statuteof Westminster. Senator Lamontagne had a
list of them in his speech; those amendments were passed at
Westminster at the request of the Canadian Parliament.
Despite all the precedents variously quoted, not one of them
can really be compared to the proposed resolution before us
today.
Everyone is free to interpret events as he or she sees fit. As
far as I am concerned, it is only in 1960 or 1961 that we
discussed in committee, for the first time at the parliamentary
level, the problem of patriation, of an amending formula, and
a Charter of Rights, and in a way which, I must admit, was
most superficial.
It will be remembered that, at that time, a Bill of Rights
had been introduced in Parliament by the Diefenbaker govern-
ment. At that time, I was a member of the Special Committee
of the House of Commons in which our group was led by
former Senator Paul Martin. That committee was entrusted
with the task of considering that bill which was to apply only
within areas of federal jurisdiction. The members of the
committee wanted to look into the possibility of implementing
it right across Canada.
At that point the then Minister of Justice, the Honourable
Davie Fulton, who was most anxious, naturally, to see the bill
passed as quickly as possible by Parliament, refused to push
any further the concept of a national Bill of Rights.
That was the first time, in 1960 or 1961, as I said, that to
my knowledge we became aware in Parliament of the magni-
tude of the constitutional difficulties involved in repatriating
the Constitution, and in adopting a Charter of Rights and an
amending formula.
I have not consulted the records of that period. I am
speaking from memory. But I have a feeling that, at that time,
the then Minister of Justice, Mr. Fulton, had drawn up a plan.
. (1540)
It is in 1964, if I remember right, when my late colleague
the honourable Guy Favreau became Minister of Justice, that
the patriation proposal, with an amending formula, was offi-
cially put forward. That formula became known as the “Ful-
ton-Favreau Formula”.
That was in 1964, still far away from any acute constitu-
tional crisis, even though the process of constitutional change
was not only slow but painful. In the following years confron-
tation bccame more frequent. But I do not believe that even
today there can be any reference to any emergency threatening
the security of the state, because otherwise the support of the
people would be obvious. And this is not the ease now.
I would now like to make another brief point: after close
scrutiny of the resolution and the evidence given by the
Minister of Justice before the joint committee, I am convinced
that at this point in time, there is a serious doubt whether the
proposal is legally and constitutionally acceptable.
We as senators are perfectly entitled to ask ourselves wheth-
er it is legally acceptable, and to suggest it should have been
put to the test of the Supreme Court of Canada before being
introduced.
Honourable senators will recall Omnibus Bill C-60, in which
inter alia amendments to the Senate Aet were proposed.
During consideration by a joint committee of both Houses the
legality of the proposals was questioned, and the issue was
whether the Parliament of Canada could unilaterally amend
the Senate Act without provincial consent.
The government then agreed to refer some questions to the
Supreme Court of Canada, and I would invite honourable
senators to read very carefully the ruling of that Court, as
published December 21, 1979. Quoting from page 24:
After general examination of the second question, it is
felt that although Section 91.1 of the Constitution
empowers Parliament to make certain changes to the
Senate’s present Constitution, it does not empower it to
introduce amendments that would alter the basic or essen-
tial features given the Senate to ensure regional and
provincial representation within the federal legislative
system.
The British Parliament determined the nature of the
Senate based on proposals submitted by the three prov-
inces—namely Canada, Upper Canada, Lower Canada,
Nova Scotia and New Brunswick–to meet the require-
ments of the proposed federal system. The Senate, created
by the Act was granted a legislative role under Section 91.
It is our opinion that the Parliament of Canada cannot
unilaterally change its basic nature, and is given no such
authority under Section 91.1.
Therefore the Supreme Court found that the Parliament of
Canada could not unilaterally alter the basic and essential
nature or role given the Senate by the Constitution, and it is
my humble submission that after this very recent judgment,
one need not be a constitutional or legal expert to draw an
obvious parallel.
If Parliament cannot unilaterally amend the substance of
the Senate Act, it is obvious that the same principle would
apply when Pai’liament tries to amend unilaterally exclusive
rights and powers granted in the Constitution to the provinces.
In the speech he delivered in this Chamber on February 26,
1981, Hotioui’ablc Senator Lamontagnc recognized that if this
resolution was introduced as a bill, it would be unconstitution-
al, therefore illegal. These are his words, and I quote from
page 1873:
I do recognize however that several sections deal with
provincial jurisdictions and that as such, if the resolution
was presented as a bill, it would clearly be unconstitution-
al. But that is not the issue for now.

I964 SENATE
DEBATES March 5, I981
I do not fully understand the logic of such a distinction
because we are presently debating a proposed resolution
which, I suggest, is unconstitutional, but I understand very
well the purpose of the honourable senator and it becomes very
obvious in the following paragraph, as recorded on page I874,
and I quote:
In other words, there is no legal requirement and no
binding convention that prevents the Canadian Parlia-
ment from adopting, without the consent of the provinces,
a joint resolution asking the United Kingdom Parliament
to amend the B.N.A. Act, even with respect to matters
affecting federal-provincial relationships or provincial
powers.
This view is akin to the statement made by the Minister of
Justice before the Joint Committee, when he said that through
a joint resolution of both houses, the Parliament of Canada
could even ask Westminster to abolish the provinces. And the
speech of our learned colleague, Senator Lamontagne, a well
documented speech based on intensive research, refers to a
whole series of precedents, legal advice and views from consti-
tutional experts, to support this theory with which I do not
agree: As a matter of fact, I have resisted the temptation to list
also a whole series of precedents and legal opinions against the
argument presented by honourable Senator Lamontagne. I
should like to quote from page I875 of the Debates of Ihe
Senate some remarks made by Premier McNair of New
Brunswick at the 1950 conference:
Q (I550)
~-~in consequence the only protection the provinces have
today against arbitrary invasion of their rights, powers
and jurisdiction is the parliament of Canada itself.
I certainly do not share this opinion. But, for the sake of the
argument, do you realize, Honourable senators, that according
to this theory, not only are you the judges, but you are the sole
judges when you believe that a bill interferes with the rights
and privileges of the provinces. Further on, Honourable Sena-
tor Lamontagne questions whether there is a rule of law under
which the provinces would have to agree to constitutional
amendments, And ?nally, again on page I875, he states:
I conclude, therefore, that it is quite proper, in a legal or
constitutional sense, for the Canadian Parliament to pro-
ceed unilaterally, without the consent of the provinces.
As far as I am concerned-and in this instance I am sure to
echo the opinion of most Quebeccrs——the purely legal aspect
aside, this is a new argument which goes against a solidly
based concept among us. It is the absolute negation of every-
thing which we have believed in and taught in our universities.
It is contrary to all the positions publicly expressed to the
federal government by all former Quebec premiers from Sir
Lomer Gouin, Taschereau and others. And in case this new
thesis has a basis in law, as some would like us to believe, the
province which I represent here would have no right whatever,
under the present Constitution, to legislate exclusively in some
areas which we feel are vital for us. Therefore, since the
Statute of Westminster we would have lived with illusory
{Senator Dcschatclelsrl
rights of which Parliament now wants to deprive us unilateral-
ly, without even consulting us.
Senator Flynn: Exactly.
Senator Deschatelets: This is a most extraordinary interpre-
tation of common law which goes against the spirit and the
letter of the law. In Quebec, from the very beginning not one
of our premiers has ever agreed to give up a iota of control in
the fields which we consider essential to our survival namely
our language, our special civil rights and our exclusivejurisdic-
tion in education.
To support their argument my colleagues have quoted con-
stitutional expcrts and legal authorities, To support my argu-
ment I hope that I shall be permitted to put on record some
statements recently made by the Quebec Liberal leader, Mr,
Claude Ryan, when he was adressing the National Press Club
in Ottawa. This article is under the byline of Miss Michele
Tremblay, Parliamentary correspondant for the Journal de
Monzréal. This is the title of the article:
Ryan’s opposition to Trudcau’s package goes beyond the
procedural aspect
Here are some interesting points which I have noted:
Firstly, Mix Ryan strongly objects to the fact that this
Charter of Rights and Fundamental Freedoms should be
included in the Constitution as a result of the goodwill of
the British Parliament; secondly added Mr. Ryan, the
battle at this time is not fought between separatists and
federalists but it revolves around two different concepts of
federalism; thirdly, any constitutional deal must takc
place in Canada between the federal government and the
provinces; it will take longer and it will be less dramatic
but it will however re?ect the true nature of our country
which more than any other perhaps, was built and devel-
oped on the basis of the continuously renewed agreement
of its people, their institutions and their regions.
Honourable senators, now a few words about section 23 of
the resolution, under the heading: “Minority Language Educa-
tional Rights”.
Section 93 of the Constitution gives to the provinces, subject
to specific provisions guaranteeing vested rights, the exclusive
jurisdiction to legislate on matters of education, and this
exclusive jurisdiction is the essential element of our identity in
Quebec. However, attractive section 23 of this proposal might
be, I cannot accept for any reason an attempt to restrict or to
even touch this exclusive jurisdiction for Quebec. I cannot
accept a unilateral intervention in this area which is so impor-
tant for us. Section 93 has always been our Maginot line of
defence. We want to solve our linguistic and educational
problems ourselves in Quebec, and this proposal is an
encroachment that I cannot accept.
I have not only read very carefully the reports of the joint
committee on section 23 and the following ones, but I have
also re?ected on their consequences and tried to determine the
degree of encroachment that these sections represent for
Quebec. Some people have told us that these provisions do not
interfere with the exclusive rights provided under section 93. I

March 5, l98l SENATE
DEBATES I965
think that, with this project, the government is trying to apply
a federal framework to this exclusive power because of which
it could then tell Quebec: “From now on, you may continue to
exercise your right to legislate on language and education, but
you will do so within the framework that we are imposing.” If
we ever accept that the exercise of this power be restricted, we
shall lose control over it, and I do not believe that the majority
of Quebeccrs would agree to this.
I am intentionally foregoing making any comment or reflec-
tion on Act 101 or the situation of Ontario under section 133
of the Constitution. What I want for Quebec is section 93 to
be respected and maintained, and personally. I shall never
accept for any reason that it be changed.
I would like to make a brief comment about section 6 of
Schedule B of the I981 constitutional proposal concerning
manpower mobility. In principle, I have no serious objection to
mobility rights or manpower mobility. These are quite legiti-
mate basic rights which normally result from the vision that
we have of a nation, but I can foresee problems when my
province tries to implement this new basic right which is to be
entrenched in the Constitution. A basic right is not only a
theoretical right; it requires a mechanism to apply it.
In some respects, Quebec is not a province like the others.
Great care will have to be taken and exceptions will have to be
made, if need be, in implementing this right to manpower
mobility, We are all aware that in several provinces, such as
Newfoundland and Quebec, there now arc preferential hiring
policies. I shall give as an example Hydro~Quebec, probably
the major employer in the province, which finances all its
projects and recruits its workers in chronic unemployment
areas with unemployment rates always above the national
average. Very few details were given in committee concerning
the implementation of this right to manpower mobility, but I
saw last week that Hydro—Qucbec has announced further
gigantic projects for which it expects to hire 5,000 new work-
ers by I985, and a total of perhaps 25,000 by 1990. We all
know that because of the language barrier, our jobless in
general—ancl I refer to those who live beyond the limits of
Quebec City—are not likely to go and look for work in other
provinces, and we apprehend that that right might result in a
“one way street“ process. I understand that at least seven
provinces have ejected to that fundamental right, which if
implemented would cause in several areas difficulties the scope
of which cannot be clearly assessed at the present time.
Honourable senators, I apologize for taking so much of your
time and I shall conclude with some general remarks.
The project before us constitutes a precedent; in parliamen-
tary or constitutional language, a precedent is an action which
is invoked afterwards to justify a similar one. It becomes
unwritten law, which is as valid and as enforceable as written
law. Since I867 it has been impossible to find a precedent to
justify, a project of such scope and consequence as the one
before us. In particular, honourables senators, we should bear
in mind that the project will not, in any way, solve the
jurisdiction problem between the federal and provincial
governments.
According to a view generally accepted in Quebec, if ever
that project comes back from Westminster in its present form,
the provinces will be deprived of many of their powers of
negotiation and will be in a position of weakness when the
matter of jurisdiction is debated. A status quo period is
provided for after Westminster. Federal~provincial conferences
will attempt to obtain a consensus and a sword of Damocles
will be hanging over the table which may eventually lead to a
national referendum if discussions come to a deadlock. Here
again, the prospect of a new system for Canada will take us
into the unknown.
llonourable senators, this unilateral project is questioned by
many Canadians in all provinces, and there is not sufficient
consensus among the people I think to justify its implementa-
tion, and, even if it were to receive the support of the majority
in both houses and be accepted by the Parliament of Westmin-
ster, there would be a danger it might prove more divisive in
the longer term.
I remember as if it were yesterday the famous professor of
economics we had at the University of Montreal, surely one of
Quebec’s most brilliant minds, Edouard Montpetit, who said,
and I think I am quoting him correctly:
When a government introduces a piece of legislation,
however imaginative and attractive it may be, which does
not have support at the grass-root level, not only will it
not have the expected impact, but it may become divisive.
I ask you ponder over that.
Before concluding, and this may be the more positive aspect
of my speech, I want to appeal to the eight premiers who
oppose this proposal with all the means at their disposal, even
up to Westminster.
I am convinced that we are on a slippery slope, and in the
best interests of Canada, I would ask each and every one of
these premiers to state publicly that they agree on these two
items: first, to the patriation of the Constitution, and second,
to an amending formula, even a provisional one, in order to
exert enough pressure on the federal government to return to
the bargaining table.
Honourable senators, I would like to conclude by quoting
the words of Serge Joyal, the honourable member for Maison-
neuvc-Rosemont, who did a magnificent job of co-chairing the
joint committee-—he is by the way one of my successors in a
riding I served for many years. This is what he said at the end
of his speech in the other place, and I quote:
Ten provincial flags will ncver make a Canadian flag.
That is just a figure of speech, of course, but an eloquent
one in terms of the resolution before us. Outside our bound-
aries, there is but one flag. the Canadian flag, which we are so
proud to see in foreign countries, but in Canada, here is
another sight to think about, thc beautiful sight, at federal-
provincial conferences, of eleven ?ags unfurled in the back-
ground side by side, first thc Canadian flag followed by the
?ags of each province according to its date of entry in the
Federation. That, for me, is the true symbol of Canada.

1966 SENATE
DEBATES March 5, 1981
Q (I600)
[English]
Hon. George van Roggen: Honourable senators, in rising to
participate in this debate I am primarily concerned with the
problem of addressing you following the excellent and well
researched addresses we have heard from many honourable
senators who have examined this matter in great detail. I am
only sorry that my notes will not provide me with the ability to
emulate the excellence of some of the other speeches we have
had.
However, I feel as strongly as I did last fall, when speaking
to this matter in October-
Senator Flynn: Surprise.
Senator van Roggen: I will come to that, Senator Flynn.
Before getting to the substance of my speech, I should like to
join other senators in congratulating the members of the joint
committee, and particularly its joint chairmen, on the work
they did and the manner in which they demonstrated so clearly
to the Canadian public, through the medium of television, the
work of Parliament being done in the most excellent fashion
I had a discussion only a few days ago with a gentleman in
Vancouver. He was an older man, a businessman, one of those
people whom I might describe as a small “c” conservative who
is inclined to damn everything to do with government and
politicians generally. He had had an illness which had kept
him at home for the months of December and January, and he
told me that he had watched for many hours, day after day,
the work of the committee, and that he was absolutely aston~
ished at the quality ofthe men and women who participated in
the deliberations of that committee on both sides of the table.
So, in my opinion, it was certainly a worthwhile exercise, so
far as the Canadian public is concerned, to have had the
proceedings televised and for the committee to have worked so
diligently.
Q (l6lO)
Last October 30, in speaking to this matter, I made refer-
ence to the fact that a large number of speakers in Canada-W
not all politicians, but including some politicians» V-had been
unnecessarily shrill, in my judgement, in their condemnation
and criticism of this package, using expressions such as one
editorial I quoted at the time used, namely, that this would be
the end of Canada, that it would destroy the country. I then
dealt with four main points in the resolution: patriation; the
amending formula; the ongoing referendum provisions; and the
Charter of Rights. After a short discussion of each of those
areas I asked whether or not they, indeed, would be sufficient
to destroy this country.
Of course, I do not intend to read that speech into the record
again. However, I would mention that part of what prompted
me to speak at that time was what I perceived to be the history
of the formation of the constitutional framework of Canada.
Much of what I had to say at that time, and, indeed, more
than that, the conclusions I came to prior to making that
speech in support of this resolution wcre the result of watching
[Senator Deschatelets]
on television almost the entire federal provincial conference of
last September~—and I will come back to that in a moment.
Some speakers in Canada are inclined——as were the
premiers at that conferencc~to refer to the Government of
Canada as being the creature of the provinces. I was appalled
to hear the premiers sitting there referring to the Government
of Canada as either the creature of the provinces or the agency
of the provinces of this country. l am not sure, but they may
get that idea from some sort of United States parallel, that of
the 13 states banding together to create their federal govern-
ment. But, in my judgment, that is a totally erroneous parallel
to our history. There were sortie British colonies in North
America at the time which were somewhat concerned that the
“manifest destiny” policy of the United States——which, follow-
ing the Civil War, had the largest standing army in the
world~—would lead the United States to swamp North Ameri~
ca. Consequently, they felt that only by forming the country of
Canada could they withstand some of those pressures. At least
most historians would credit that as being one of the main
thrusts at the time towards the creation of a federal state here.
So those colonists petitioned the British government at that
time to create Canada, which it did by the BNA Act.
If you are talking about the federal government being the
agent of the provinces or the creature of the provinces, why did
that act, first, in dividing the powers between the provinces
and the federal government in sections 92 and 93, demonstr-
ably give to the federal government those powers that would
normally go to a senior government, and to the provincial
governments those powers that would quite logically devolve
upon junior govcrnntentsw-to say nothing of the declaratory
power and the power of disallowztncc of provincial statutes
given to the federal government? This was obviously a senior
government being created at that time, and to say that it is an
agency of the provinces is, in my mind, absolute rubbish.
In l93l the Statute of Westminster did everything neces~
sary-including granting them the right to amend their own
Constitutions~for Australia, New Zealand and the other then
dominions, except Canada, which was left out at its own
request. Since thcn we have been bcdevilled by a total impasse
in constitutional change in this country.
I have read somewhere that at the time it was mentioned
that this reservation to Westminster was to be for only a
couple of years while we sorted this out. Well, 50 years later
we are still trying to sort it out, and I am glad that we are
actually about to sort it out.
In my judgment, the reason for this impasse lasting so long
is that we are always having trade~offs. We can‘never discuss
or negotiate anything with the provinces that they do not use
the occasion to say, “We will agree to that, if we can have
something else over here.“ So you are always dealing in
packages, and of course you can never get a whole package, as
we have demonstrated. l think the way to amend constitutions
is slowly, item by item. They have demonstrated that in the
United States, even though they have a very difficult mech-
anism for amendment.

‘March 5,1981 _ SENATE
DEBATES I967
Coming back to the four main points, I will try to deal with
them quickly in view of the lateness of the hour. Certainly,
there is no difference of opinion in Canada on the subject of
patriation itself. I need not deal with that point. Everyone is
agreed, even down to the provincial level. However, as soon as
you come to patriation you are faced with the problem that, if
you patriate the Constitution without an amending formula,
you will then be in an even more difficult straitjacket or block
of cement than you are in now. So, at least, you cannot talk of
patriation without coupling with it the discussion of an amend-
ing formula.
So, we then come to the next step: patriation with an
amending formula. The government has come forward with
what would seem to me to be tlte fairest conceivable resolution
of this difficult problem, in that they have taken the Victoria
Charter and have said that we will have unanimity, which
everybody is talking about, for two years while we have
federal-provincial conferences and try to agree on an amend-
ing formula. If at the end of that two years we are unable to
agree, we will put forward the Victoria Charter—the only one,
incidentally, of these various formulas which was agreed to by
both the federal government and all of the provinces, albeit
momentarily because one province had a change of heart—~and
that was formulated only about nine years ago. Furthermore,
they said, if they were unable to reach an agreement with the
provinces at that time, if seven of the provinces were to agree
on their own amending formula, that would be put before the
people of Canada and they could make their choice between
the alternatives: either the provincial proposal or the federal
proposal. Now, what in a democracy could conceivably be a
fairer resolution of an impasse that has lasted all these years?
Senator Flynn: Are you really serious‘?
Senator van Roggen: I will come to the Tory position in a
moment, Senator Flynn.
Senator Flynn: With respect to the referendum, if you say
that the majority of the Canadian population would impose an
amending formula on provinces which would not, I suppose,
have any veto powers—
Senator van Roggcn: No.
Senator Frith: That is not undemocratic.
Senator Flynn: Well, you mentioned seven provinces. That
means three provinces would be out and the will of the
majority would be imposed on them.
Senator Frith: I thought there was some relationship be-
tween democracy and the rule of the majority.
Senator Flynn: Well, you could dispense with minorities in
that case.
Senator McEIman: Order!
Senator Flynn: There is no problem of order. If the honour-
able senator does not want to entertain my question, he does
not have to, and I don’t think he needs the assistance of
Senator McElman, either.
Senator van Roggen: I don’t. I rely on the assistance of your
leader, Mr. Clark, and others.
Senator Flynn: Of course.
Senator McEIman: There is a question of order here
because you are conducting a debate, not asking a question.
Senator Flynn: No.
Senator McEInian: You are indeed.
Senator Flynn: No.
Senator van Roggen: At any rate, the government has
chosen in this procedure to settle upon the Victoria formula,
and the Conservative Party says, “Oh, no. You should not do
that. You should settle on the Vancouver formula.”
With respect to either the Victoria formula or the Vancou-
ver formula, there seems to me to be absolutely no difference
in the position of the government and the opposition at this
point insofar as unilateral action is concerned, because Mr.
Clark and the Conservative Party take the position that there
is nothing wrong with unilateral action in patriating the Con-
stitution and in imposing an amending formula.
Senator Murray: Nonsense!
Senator Flynn: No!
Senator van Roggen: That is the Conservative position.
With respect to the Vancouver formula, of course, they can
fall back on the fact that it was agreed to by all of the
provinces. Well, it was not agreed to by the federal govern-
ment. The Victoria formula cornes closer, because it was also
agreed to by the federal government.
Senator Murray: That was ten years ago.
Senator van Roggen: I wholly support the Prime Minister in
his rejection of the Vancouver formula—»and I said this last
October~-because of the opting-out procedures which would
create a checkerboard of Canada over a period of years. Let
me quote the Conservative spokesman in the House of Com-
mons on the subject of the Constitution. According to the
Ottawa Citizen of March 2:
Epp now seems to have accepted “frudeau’s argument,
dropping the previous Conservative policy of support for
the Vancouver formula.
Q (I620)
Quoting Mr. Epp, the Citizen says:
“On the charter, you can‘t have opting out,” he told the
Young Conservatives meeting.
“If rights are going to be entrenched, those rights have
to be universal rights across the country.” –
Toronto’s David Crombie spoke to the meeting in simi-
lar vein.
I am glad that Mr. Epp is proving to be so sensible and
?exible as to realize that those provisions in the Vancouver
formula are really not suitable for Canada and were properly
rejected by the federal government.
Senator Flynn: No, that is not what he said.

I968 SENATE
DEBATES March 5, I981
Senator van Roggen: So we seem to have agreement at the
level of the Parliament of Canada, among all parties, on
patriation and patriation with an amending formula. There is
some dispute as to which amending formula might be used, but
the government has provided, in the two~year period with
unanimity and the referendum provisions, the most democratic
solution possible to at choice between the two if the parties
cannot come to ah agreement in that period of time. It is my
contention that they will come to an agreement in that two-
year period. for the simple reason tltat the provinces will not be
in a position to trade off oil and fish against amending
formulas.
Some Hon. Senators: Hear, hear.
Senator van Roggen: When you get the provinces to the
table under those conditions, then you will hear the provinces
beginning to talk some sense.
Senator Flynn: We have no oil or fish in Quebec anyway!
Senator van Roggen: So much for the criticism of unilateral
action. It is agreed to by all parties, though there may be a
question as to how many subject matters should be covered by
unilateral action»—~the Charter of Rights being included in this
and not agreed to by all as a suitable subject for unilateral
action. However, the principle of unilateral action is certainly
accepted.
Senator Flynn: No.
Senator van Roggen: I would suggest that the next point of
major contention in this resolution is the ongoing referendum
provisions, which were questioned by several of us in our
speeches at the time of the introduction of this resolution last
fall. A desire was expressed that the ongoing referendum
provisions be tightened up; that they become demonstrably a
logjam-breaking mechanism. A good deal has been done by
the committee along those linesv-perhaps, as Senator Steuart
said in his remarks, not as much as everyone would have liked,
but certainly there has been a move in the right direction. I
would ask honourable senators if they really believe, after
federal-provincial conferences coming to impasses on questions
between the provinces and the federal government, that the
federal government is going to be cavalier in running to the
referendum process, when it must take that referendum to
every region in Canada and have it passed by individual
majorities in all of the regions, including the possibility of a
total veto by a majority of the people of Quebec if there is
anything contained in it that Quebec does not like.
Senator Flynn: You can by~pass the veto.
Senator van Roggen: Senator Deschatelets, only a fcw
minutes ago, was saying that the federal government, through
this mechanism, would be able to destroy the rights of Quebec.
I say that is not possible under that mechanism. There has
been a great deal of talk about a referendum being “un~Brit~
ish“, not a thing we should have in the British parliamentary
system, something foreign to our system, and so on. I need
only refer you to Australia, which Itas used its referendum
provisions, I think, 30~odd times, and I believe that the people
[Senator Flynn.]
have rejected the government proposals in all but four or five
of those 30~odd referenda-~-»which just proves that the public
are sometimes perfectly capable of looking after themselves
when governments put foolish ideas before them.
Senator Flynn: I am not too sure about that.
Senator van Roggen: Britain had a referendum on the
Common Market; and we have had one before in Canada. I
am not arguing with you, Senator Flynn, and saying that the
referendum is something I want you to buy. I am simply
arguing my position that it is not something that is going to
destroy this nation, which some speakers-—not your-wwould
like to have us believe.
Senator Flynn: It could.
Senator van Roggen: Don’t say, “it could”. Come now,
please; let‘s be sensible. This is a place of sober second
thought, and I do not think that we should be stretching for
straw men of such a remote character as that. At any rate, I
do not want to belabour that point because I would like to deal
with a few others.
I come now to the Charter of Rights. The premiers, as
demonstrated at that conference and others, are the great
opponents of entrcnching rights. Of course, I need only refer
honourable senators to any one of a number of provincial acts
to find for them examples of deprcdations of human rights in
province after province in this country. As many members of
the press and other writers express, we have a “double stand»
ard” of political morality in this country, as between the
provinces and the federal government. I argue that that is
largely because we have a bicamcral system at the federal
level, and bills such as some I have seen being passed in some
provincial legislatures would not pass in this chamber. When I
made that comment last October, Senator Flynn, said, “If we
are still here.” Well, now we will be here -——
Senator Roblinz Don’t count on it!
Senator van Roggen: -—~and we will maintain that higher
standard, I hope, at this level. At least, with the entrcnchment
of a Charter of Rights, some of those provincial governments
may hesitate before passing the types of legislation they have
passed previously and which I referred to but cannot take the
time to document right now.
Senator Flynn: The War Measures Act is still on the statute
books.
Senator van Roggen: I cannot hear you.
The day before I spoke last fall, Senator Nurgitz had given
a very eloquent and reasonable argument on the other side of
the question with regard to cntrenching rights. There are many
lawyers and judges in Canada who argue that rights should
not be entrenched because anomalies such as occur in the
United States will develop. I can find just as many lawyers and
judges who will argue on the other side, that the people of
Canada will be better off with rights entrenched. I am of the
view that they should be entrenched, and I spoke on that in the
Senate almost I0 years ago; it is nothing new for me. I am

March 5, I981 SENATE
DEBATES I 969
simply saying that you can have two points of view. Entrench-
ment of rights will not all ofa sudden destroy the country.
As regards entrenching those rights, I have a difficult time
with the opposition in this house, because every time an
opponent to the Charter of Rights speaks and says, “They
don‘t have them in England; they don’t have them in Aus-
tralia; but they have them in Russia,“ all the opposition
members pound their desks in great glee and delight, and
barrack away over there, obviously opposed to the total eon-
cept of a Charter of Rights at all. Well, their party position is
that they are in favour of a Charter of Rights. They just say
that it should not be imposed unilaterally. Now let’s have it
one way or the other. Are you in favour of a Charter of Rights,
as your party is? Then Iet’s have a Charter of Rights. You say
that it must not be implemented unilaterally. Fine, we will
argue that point, but let us not argue about the merits of a
Charter of Rights.
With regard to the quality of the Charter of Rights, the one
brought in by the government was examined in the committee
at length, and there were 67 amendments made to it by
members on all sides of the house. The study entailed three
months of committee work, with I00 witnesses appearing, and
l,200 briefs being submitted. In the democratic process a time
eventually arrives when this comes to an end and you fish or
cut bait. Some people have described this as one of the finest
charters in the world. I am not for one moment suggesting that
it will never need to be amended or improved.
I would like to leave the subject of the Charter of Rights
now and move on, for a moment, to discuss property rights,
since I am a strong proponent of property rights being includ-
ed in a charter. I might just mention that property rights were
included in Bill C-60. The federal Liberal government is not
opposed to this proposal. Unfortunately, the NDP is strongly
opposed to these rights, for reasons we can all imagine. If you
fellows would just come along with us on the Constitution and
the package, we will put the property rights in, and away we’ll
go.
Senator Roblin: Now what are you bargaining?
Senator Flynn: You are bargaining with us.
Senator van Roggen: When you are doing something impor-
tant, what is wrong with bargaining in Parliament? Is that
never done?
Senator Roblin: The Prime Minister doesn’t like it.
Senator van Roggen: That is why they are always in the
opposition, I suppose.
Senator Flynn: We are certainly too honest, by comparison.
Senator Frith: We arcjust trying to be bilateral.
Senator van Roggen: Again, I do not see how this Charter of
Rights-—-which may include a few commas and “ts” crossed
and unerossed, which one person likcs and another person does
not like, but which is the best effort of many draftsmen in that
committee and after years of work—~is a thing that is going to
“destroy” Canada.
0 (I630)
I now come to a few general points that I will try to deal
with quickly, so that we can all go home.
The first thing I would like to say is that far from taking
something away from the provinces, it seems to me that we are
giving the provinces something very substantial.
I believe Senator Lamontagne is correct–
Senator Flynn: A great lawyer; a great legal mind.
Senator van Roggen: –in his description of the legal situa-
tion, namely, that we have the right in the federal Parliament
to amend our Constitution by joint address, as we are now
endeavouring to do, as opposed to the situation as outlined by
Senator Thompson, who, in a very well researched and bril-
liant exposition in his long speech here the other night, devel-
oped the theory of the conventions and usages which we have
endeavoured to use these last 50 years to get unanimity and
find solutions.
The Manitoba court has held, of course, that these conven-
tions and usages are not the law of the land, and that the legal
situation is that we can go ahead and make this amendment. I
think it is demonstrably clear that once we get this amendment
by means of this resolution, and our Constitution back here
with either the amending formulas proposed, or those that will
come out of the process two years from now, the provinces are
all of a sudden going to find themselves completely in charge
of their destiny, as far as amendments to the Constitution are
concerned, and in a better and much stronger position than
they are in today.
Senator Flynn: Not with the referendum!
Senator van Roggen: Insofar as the provinces having to give
unanimous consent is concerned, I need hardly mention that I
was delighted the other day to see Mr. I-lees, in the other
place, sec the light completely, insofar as the provincial gov-
ernments are concerned, and I quote a report in the G10/ac and
Mail:
“I‘ve given up completely on the provinces”, veteran Tory
MP George Hees said in an interview. . . “They’re just
horse~traders for oil and fish.“
I am sorry he used only oil and fish. I probably would have
used some other things to include Quebec, but I am only
quoting him. Hees went on to say that the Parliament of
Canada is the place where this should be dealt with, and is the
perfectly competent and proper place for it to be dealt with.
And, of course, we agree with him.
Senator Flynn: He and Senator Lamontagne are two great
legal minds.
Senator Roblin: One and a half.
Senator van Roggen: I want to deal with clause 44 for a
moment.
Senator Connolly: You mean the old clause 44.
Senator van Roggen: Yes, the old clause 44. Firstly, under
the original resolution the on-going referendum provision
could not be employed by the Government of Canada without

I970 SENATE
DEBATES March 5, I981
the consent of the Senate. That was in there then, and it was in
there very deliberately. I mentioned that previously, and Sena-
tor Flynn again quite properly said, “Yes, if we are still here.”
I think it is important to point out that the removal of clause
44 still preserves that protection for the people of Canada in so
far as the on~going referendum procedure is concerned.
Senator Flynn: We have not proved that.
Senator van Roggenz In the second place, the removal of
clause 44 is something that not all of us in this chamber felt
necessary. I, for one, was very determined that clause 44,
either in itself or under clause 51, should be amended sut-
ficiently to guarantee that we had a bicameral Parliament
permanently in Canada Whether it would include this Senate,
or an elective Senate, perhaps does not matter so long as some
form of second chamber exists. I like a system of checks and
balances. I think this is essential in a democracy, if we are not
to have a tyranny of the majority.
I simply want to make the point that I personally would
have been content with amendments to establish only that a
bicameral system of government would be continued in
Canada, and that the House of Commons could not simply
abolish the Senate, which is accomplished by the withdrawal
of clause 44, but which goes farther than I would have
personally felt was necessary in order for me to support this
package.
What l want to put on the record is that I hope that other
senators will join with me, as one who is determined to see us
introduce Senate reforms of our own in due course, rather than
falling back on the removal of clause 44 from this package as
an excuse for simply doing nothing about the Senate for years
into the future. I want to make a firm undertaking to the
public of Canada that we will see that intelligent and reason-
able reforms to the Senate are proposed and introduced in this
chamber.
Senator Flynn: An elective Senate?
Senator van Roggenz Again, in keeping with my promise to
get Senator Flynn home on time, I am going to finish by
saying that certainly we are breaking with tradition in order to
break this impasse that has existed for so many years, We are
doing so in a fashion that will provide for amendments in the
future, in such a way that the provinces will be very well
protected by either the amending formulas proposed or others
that are yet to be formulated. For that reason I want to say,
honourable senators‘in case you are in doubt after hearing
my remarks—that I will be supporting this resolution, and that
I urge you all, on the other side of the house, to join me in
doing so.
On motion of Senator Flynn, for Senator Smith, debate
adjourned.
The Senate adjourned until Tuesday, March 10, I981, at 3
p.m.