Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Motion in Amendment—Debate Continues”, 32nd Parl, 1st Sess (31 March 1981)


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Date: 1981-03-31
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2189-2197.
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March 31, 1981 SENATE DEBATES

THE CONSTITUTION

MOTION FOR AN ADDRESS TO HER MAJESTY THE QUEEN-
MOTION IN AMENDMENT- DEBATE CONTINUED

On the Order:

Resuming the debate on the motion of the Honourable
Senator Perrault, P.C., seconded by the Honourable
Senator Frith:

That an Address be presented to Her Majesty the
Queen respecting the Constitution of Canada.

And on the motion in amendment thereto of the Hon-
ourable Senator Yuzyk, seconded by the Honourable
Senator Tremblay, that the motion be amended in
Schedule B of the resolution by inserting immediately
after Clause 28 the following:

28.1 Notwithstanding anything in this Charter, the
rights and freedoms set out herein are guaranteed
equally to men and women-(Honaurab1e Senator
Bielish).

Hon. Jacques Flynn (Leader of the Opposition): Honour-
able senators, I rise on a point of order. Would the Leader of
the Government prefer that this item stand until the govern-
ment has informed us of its decision with regard to the
consequences of the judgment of the Supreme Court of New-
foundland given today?

If the debate is to be adjourned until the Supreme Court of
Canada has ruled on the legality of the constitutional package,
I think it would be rather inappropriate for this house to
continue the debate. I am asking him if we should wait until
tomorrow or Thursday to see what the government decides in
this matter.

Hon. Raymond J. Perrault (Leader of the Government):
Honourable senators, it can be said that the debate in the
Senate has proceeded in good spirit and in a co—operative
manner, unlike the events of the other chamber.

2190

We have taken the position on this side, that every senator
should be given a full opportunity to set forth his or her
opinion on this important resolution.

Certainly, it would not offend us to hear Senator Bielish.
Indeed, we have been looking forward to her contribution to
this debate, and we would welcome that contribution this
evening. Therefore, we do not think the debate should be
delayed.

Hon. Martha P. Bielish: Honourable senators, I yield to
Senator Muir.

. (2040)

Hon. Robert Muir: Honourable senators, I wish it had been
outlined~-

Senator Frith: Did you bring your music, Senator Muir?

Senator Muir: I sure did. I wish the Leader of the Govern-
mom in the Senate had been informed that I was going to
speak instead of Senator Bielish. He had so many nice things
to say about Senator Bielish, and I doubt that he would have
said the same things about me.

In any event, honourable senators, I hesitated to take part in
this debate as I felt that perhaps just a legal question was
involved, and it should be left to the legal people to debate.
However, after listening with interest to the legal arguments,
in which both those for and those against the resolution seem
to have made their points, I came to the conclusion that the
legal argument could only be decided in the Courts, and I do
not understand why the government is unwilling–indeed,
afraid–to have it decided by the highest court in Canada
before proceeding further with it.

Senator Perrault: Will you vote for it now?

Senator Muir: Since the legality of the proposal is not going
to be decided, at least at present-although there have been
some rumblings today–I believe it is quite proper for a
non-legal person like myself, one who came out of the coal
mines of Cape Breton and who makes no claim to having
expert knowledge on either legal or constitutional matters, to
speak on the resolution from another point of view.

Before I do so, I thought I should make a passing comment.
With all due respect to my legal confreres in all parts of this
chamber, I say that when your profession is law—I say this in
a jocular manner-you are suspect; but when you are both a
lawyer and a politician, you are doubly suspect. Here I refer to
the brilliant and lengthy dissertation given by Senator Godfrey
in this chamber on March 11. From his speech, to which I
listened very carefully from beginning to end–it was most
interesting; extremely interesting”–I could tell that he is an
outstanding lawyer. It was a thoughtful and deeply researched
presentation that he made. Indeed, he consumed over seven
pages of Hansard, and in doing so he outlined point by point
why the resolution should not be passed-and you know,
honourable senators, he thoroughly convinced me. He built an
excellent case, as only a scholarly lawyer could. It was a
masterpiece, a masterful presentation–

Senator Frith: He should be on the Bench.
(Senator Perrault]

Senator Muir: But, honourable senators, the final few sen-
tences of his remarks brought complete disillusionment. Let
me quote my honourable friend. After damning the resolution
from one end to the other, and bearing in mind the hours of
research that he must have put into it, he finished by saying, in
the penultimate paragraph:

-I have finally come to the conclusion, in spite of my
strong reservations about the process, that patriating the
Constitution is all important, is long overdue-

Senator Steuart: Hear, hear.

Senator Muir: Now, now, David.

-and should be done now, even though it includes a

Charter of Rights which is completely entrenched, which
I do not really think is necessary at this time.

An Hon. Senator: Oh, oh.

Senator Muir: He then goes on to say:

Let us get this first step over with, so that we can get on
with amending the Constitution at home with respect to
other important matters such as the division of powers. I
am, therefore, going to hold my nose and vote for this
resolution.

Senator Perrault: Hold whatever you like.

Senator Muir: How anyone could make such a beautiful,
wonderful, fantastic speech against the resolution, and then
say that, is beyond me. However, I am not a lawyer, so I don’t
know how it works.

I would say that Senator Godfrey thoroughly convinced me,
and if I were in any difficulty at any time-and please God I
am not—I think I would engage him as my lawyer, because he
is a very convincing gentleman when he puts his case forward,
but I would hope, if I were being charged with a criminal
offence, that he would not desert me in the final paragraph.

To get back to what I was going to say before I rudely
interrupted myself, in my opinion, in regard to this matter, the
people of Canada could be divided into four classes or catego-
ries. There are those who support the governmenfs action,
those who oppose it, those who have no interest in it or, indeed,
no understanding of the issues involved, and those of the fourth
class, to which I believe I belong, who feel that there are other
and more important matters which should be the concern of
the government. I try to speak on behalf of the fourth class.

I believe the first concern of the government at this time
should be the economic situation. I believe the first concern of
the government should be the great problem of unemployment,
the great problem of inflation, the great need of new incentives
in those regions of Canada which suffer from even higher
unemployment than the national average. I believe the first
concern of a concerned government should be the relief of
those in need—-and of first importance now is the relief of
homeowners, and those who want to be homeowners, from
abnormally high mortgage interest rates due to the inaction of
the government.

It appears obvious that this government has placed its
constitutional obsession above human needs. It has no con-

sideration and no sense of compassion for those who suffer on
account of low incomes and high prices. It has no consider-
ation and no sense of compassion for all those who ask only for
employment, who ask only for economic security so they can
support their families without the constant threat of unem-
ployment, with all its evil results, hanging over them.

Honourable senators, as you are aware, it is estimated that
one million people in Canada are unemployed. I truly do not
believe that those people put a high priority on patriating the
Constitution. They have to live, and they want to provide for
their families above the poverty line. When the homeowner has
to renegotiate the mortgage on his house at a higher rate of
interest, when he must try to balance the cost of food, the cost
of fuel, light and power, and all the other necessary items, with
a severely reduced income, he can be forgiven if his interest in
the Constitution is so slight as to be almost non-existent.

I say to all honourable senators that the government has lost
whatever sense of proportion it ever ltadgand, believe me, I do
not think it has had very much in regard to this matter.

Let us face facts. The first concern of the government
should be the economic welfare of the people of Canada, and
yet we see the majority of the supporters of the government so
concerned with the Constitution that they do not realize, or
understand, or appreciate the attitude toward it of the ordi-
nary people of Canada.

I want to make my own position very clear. I do not think
that patriation of the Constitution, with a Charter of Rights
attached, is a matter of urgent importance, and after hearing
the speeches on the resolution given here, and also reading and
hearing some delivered in the House of Commons, I believe I
understand the position of those in favour of, and of those
opposed to, the resolution. I wholly agree with those who state
that the Canadian Charter of Rights and Freedoms should be
made in Canada by Canadians.

Although I was born in Edinburgh, Scotland, I was brought
to Canada at an early age, and consider myself a true Canadi-
an. I resent the fact that our government should be begging
and pleading the British Parliament to legislate on what is a
wholly Canadian matter.

I understand, of course, that the United Kingdom Parlia-
ment must amend the B.N.A. Act by including an amending
formula to make it a Canadian statute, because the B.N.A. act
is a statute of that Parliament. I cannot go along with the
proposal of having a Canadian Charter of Rights given to us
by the Parliament of the United Kindgon.

The excuse for this strange and, indeed, abnormal, proce-
dure is that it would not be passed in Canada under any
formula. I cannot accept this as a valid excuse. It should be
remembered that those who oppose the government are also
Canadians who are absolutely sincere in their beliefs. We have
proclaimed for years that we have come of age. We have cut
the umbilical ties, and so on. We have cut our colonial ties,
and we are a sovereign nation. Now we plead with the

parliament of a foreign country, practically on bended knees,
to pass a law which would be binding on Canadians.

Honourable senators, in my view, that is an incredible
situation. It is like an adolescent who is constantly at odds with
his parents. “I have this problem; you solve it.” I find the
whole process extremely humiliating. Here we are supposed to
be writing history. We are supposed to be committing to paper
the fundamental rights of Canadians. So far, we have only
succeeded in dividing our country, and antagonizing most of
our provinces.

A Charter of Rights should be a uniting force, to my mind,
and yet by its high-handed actions, and by its assumption of
superiority, the government is creating a division in this coun-
try which possibly would remain for years.

Honourable senators, being a political realist, and having
been a member of the House of Commons for 22 years before
coming here, I know this resolution will pass either in its
present form or with a few non-controversial amendments. I do
not think it should pass until we have had, at least, an
opportunity to give the proposed Constitution a clause-by-
clause examination. I know the special joint committee gave it
such a study, and the members are to be commended for their
work. However, a committee study on such an important piece
of legislationw-we don’t do this every year or every few
months–cannot take the place ofa clause-by-clause examina-
tion by a Committee of the Whole in the Senate. Certainly
there is not time for an ordinary member of the Senate to
speak on all the clauses.

Any Charter of Rights should be written so that it protects
the rights of citizens, especially against the tendency of big
governments to Whittle away the rights of the people in the
name of efficiency. I do not think the proposed Constitution
gives the ordinary citizen sufficient protection.

Someone once said that to give a man his life but to deny
him his liberty is to take from him all that makes life worth
living. To give him his liberty but not to guarantee him his
property, which is the fruit of that liberty, is to still leave him
a slave. I do not suggest that the proposed Constitution goes as
far as that, but I simply do not understand why it does not
guarantee the property rights of our citizens.

I do not understand why there is no reference in the
proposed Constitution to the fact, which I think is beyond
dispute, that Canada as a nation acknowledges the supremacy
of God. I recall this was mentioned by my colleague from
Cape Breton, Senator Macdonald. Like him, I cannot under
stand why an amendment to that effect made in committee
was opposed by the Liberal members of the joint committee. I
would not have expected such an amendment to be considered
as a partisan measure. Yet, while the Conservatives and NDP
members voted for it, Liberal members, including six Liberal
senators, voted it down.

While Senator Stanbury was speaking, I raised that ques~
tion with him, and he gave me a reply–well, he really didn’t
say very much in his response because he had not read the
preamble, which is really good. It reads:

2192

We, the people of Canada, proudly proclaim that we are
and shall always be, with the help of God, a free and
self-governing people.
In his earlier remarks, he said it was the provinces who did not
want it and who did not agree with it. When he responded to
my question, he stated that he had made an error, that, in fact,
the provinces did not want to talk about the preamble until the
whole Constitution was put together. He said:
Perhaps I should correct something which may have been
misleading because of lack of information . . . I was wrong
in saying it was a rejection-
Honourable senators, what I could not understand-

Hon. Richard J. Stanbury: Honourable senators, I wonder if
Senator Muir would mind reading the excerpt in full instead of
mumbling it quietly and incompletely.

Senator Muir: I beg your pardon? Would you repeat that,
please?

Hon. Orville H. Phillips: Would you be influenced if the
whole thing were read?

Senator Muir: Would Senator Stanbury please repeat that?

Senator Stanhury: I am asking that the honourable senator
read the full quote because what he was doing was mumbling
the quote and not giving it completely. I think that in fairness
he should read the full quote.

Senator Muir: Wonderful, wonderful! Far be it from me to
mumble in this place or any other place at any time. I would
never do that.

Senator Phillips: A Cape Bretoner never mumbles.

Senator Muir: You are right.

I had posed the question as follows:

Honourable senators, I wonder if my honourable col-
league, Senator Stanbury, would permit a question. It is a
very sincere question, with no partisanship about it at all.

I am quoting myself now. I love to quote myself.

Senator Flynn: You are not the only one.

Senator Muir: I went on to say:
I know Senator Stanbury’s background, and the work he
has done with regard to the church, the Deity, and so on.
He quoted from the preamble that was previously present-
ed. In the course of that preamble reference is made to
the Deity. Would the honourable senator kindly advise
me–
Can you hear me, Senator Stanbury?

Senator Stanbury: It is difficult.

Senator Muir: I will go on:
Would the honourable senator kindly advise me why, in
the recent Constitution hearings, the Liberal members of
that committee, along with the New Democratic Party,
said, “Away with the Deity, and away with references to
the Deity. We will have nothing to do with the Deity? I
Just wonder if he would explain that to me”and I say this

[Senator Muir.)

SENATE DEBATES

March 3l,l98l

sinccrely–in the light of his important background in
church work, and things of that nature.

Senator Stanbury’s reply was–and I am quoting Senator
Stanbury, that great worker from one of the very great chur-
ches of Canada:

I am sure that individuals in every party have their own
points of view. What I was giving you was the proposal of
a preamble given by the Government of Canada to the
provincial premiers. Perhaps I should correct something
which may have been misleading because of lack of
information. My understanding#

I am still quoting Senator Richard J. Stanbury.

-of what happened was that the premiers said, “We do
not want to talk about the preamble until we have the
whole Constitution put together.” I was wrong in saying it
was a rejection, but it was not accepted at that time as the
preamble for the Constitution. If it had been, it would
have referred to these matters which I regard as
important.

Senator Stanbury: Thank you very much.

Senator Muir: You are most welcome. I am only too happy
to accommodate you.

Honourable senators, I hope Senator Stanbury will say I am
quite welcome when I bring up this other point. That was no
answer at all to the question I posed–no answer whatsoever. I
asked him why the Liberal senators had opposed the Deity, the
mention of God, or anything about this preamble. He did not
answer it at all.

Senator Phillips: He did not understand.

. (2200)

Senator Muir: To get back to what I was saying before I
was so rudely interrupted by the Presbyterian Pope, I would
not have expected that such an amendment would be Con-
sidered a partisan measure. Yet, while the Conservative and
NDP members voted for it, the Liberal members, including
the six Liberal senators, voted it down.

I am sure that Senator Stanbury must have received these
letters, one of them from a town called Toronto which was
signed by a Reverend Leonard Self. I am sure that the
honourable senator must have received that letter from the
Westminster Presbyterian Church. I hope that he personally
answered the letter from Reverend Self and explained the
situation to him.

Senator Stanbury: I did.

Senator Muir: I am sure that he did not get much of an
explanation, if he got an answer to this question that was
anything like the answer I got to mine.

I would have thought that the proposed amendment was
non-controversial. If you look at the Minutes of the Proceed-
ings of the joint committee of January 22, 1981, you will see
the following:

The Committee resumed consideration of the motion of
Mr. Epp, That clause l of the proposed Cornrlilulion Act,

March3l,l98l

I980 be amended by striking out line 1 on page 3 and
substituting the following:
“I. Affirming that

(a) the Canadian nation is founded upon principles
that acknowledge the supremacy of God, the dignity
and worth of the human person and the position of
the family in a society of free individuals and free
institutions, and

(b) individuals and institutions remain free only
when freedom is founded upon respect for moral and
spiritual values and the rule of law,

the Canadian Charter of Rights and”

After debate, the question being put on the amendment,
it was negatived on the following division–

I would like to put on the record the result of the vote, and I
mention only the Senate members because we are in this
chamber at the moment. Yeas: Asselin, Nurgitz, Roblin.
Nays: Austin, Cottreau, Goldenberg, Lucier, Petten and
Rousseau.

Honourable senators, it would be interesting to learn from
any of these honourable senators the reason they opposed what
I would consider a non-controversial and non~partisan amend-
ment. It seems unusual that they would oppose it. Indeed, if
the objection was merely that it was proposed by the Con-
servatives, I can only say that the members on this side would
support it if it were brought in by a government supporter. I
hope that Senator Stanbury will bring in that amendment, and
I can assure him that we will all support it very strongly.

Senator Thériault: What side are you speaking from?

Senator Muir: Oh, yes, I had forgotten that you are over-
flowing into this side of the chamber. We will have to find a
seat for you on the other side.

Honourable senators, I know that we are debating the
amendment proposed by Senator Yuzyk, and I certainly sup-
port it. Indeed, I think it strengthens my contention that we
should have a clause-by-clause examination of the proposed
Constitution in this chamber before voting on it. As it now
stands, I support the amendment, but, even with the amend-
ment, the resolution is so lacking in the protection and guaran-
teeing of fundamental rights that I cannot support it.

Hon. B. Alasdair Graham: Honourable senators, in view of
the fact that the Academy Awards are being presented in
Hollywood tonight, and in view of the fact that two Cape
Breton senators are speaking back to back here in Ottawa, I
can only observe that it is quite a night in North America.

I congratulate my friend and colleague, Senator Muir, for
the concerns he has expressed with respect to the unemployed
and the needy in Canada. I am sure that he would want me to
mention that the Government of Canada has indeed recog-
nized those needs in a most magnificent way: the announce-
ment in the last few weeks that our own native Cape Breton
will receive hundreds of millions of dollars to aid the steel and
coal industries of our area.

SENATE DEBATES

2193

With respect to the subject at hand, this is the second time
that I have had the privilege of participating in the debate on
the Canadian Constitution. In my first effort, when the resolu-
tion was originally introduced last fall, I spoke primarily about
my views as a Canadian living in Nova Scotia. I dealt with
mobility rights, the principle of equalization, ownership of
resources, language rights and the historic significance of what
has been proposed. Since that time, the resolution has under-
gone major changes by way of the amendment process and has
attracted both fervent support and vehement opposition. I
believe that most Canadians support the substance of the
resolution, but they are sometimes confused by and, in the case
of the majority of the provincial premiers and the official
opposition, opposed to the process. So let me speak about that
process.

Senator Flynn: Good idea!

Senator Graham: Almost without exception, speakers who
have reflected on the process have expressed concern. Even
supporters of the proposed resolution have said that it is
unfortunate that there is not greater acceptance on the part of
the provinces and the official opposition. However, they argue
that the time is right and that the momentum for change.
which started with the Quebec referendum, should not be lost.
If the current attempt at reform is lost, as have been attempts
so many times in the past, there is no telling when, ifever. the
process could be brought to a successful conclusion.

I believe there has been a great deal of movement towards
the reform position taken by the federal government since the
introduction of the proposed resolution on October 6, 1980. It
seems to me that this movement has been the result of
favourable public reaction to the content of the resolution,
notably the desire for patriation and the entrenchment of
rights. That is not to say that the public has been enamourcd
of the unilateral process. This, I believe, is the result of much
misunderstanding.

At the beginning of October 1980 there were two almost
equally controversial aspects with respect to the process: the
first was unilateralism; the second was the entrenchment of
rights in the Constitution. The entrenchment of rights appears
to have won over many converts. Jake Epp, the constitutional
spokesman for the Progressive Conservative Party, on January
20, I981, when introducing his party’s amendments to the
Special Joint Committee on the Constitution, said:

It is the popular will that we have a Charter of Rights and
Freedoms for the Canadian people embedded in the
Constitution.

Prior to January 20, the issue within the Conservative Party
seemed to be very much open to debate, some members
supporting entrcnchment and others opposing it. This ambiva-
lence was perhaps understandable, in light of the positions
taken by the Conservative provincial premiers. Throughout the
summer of 1980, Premier Lyon of Manitoba led a vigorous
attack against entrenching a Charter of Rights. He was sup-
ported by Premiers Buchanan, Lougheed and MacLean.
Premier Peckford indicated that he would support the limited

2l94 SENATE

entrenchment of rights. Several premiers made statements
connecting the entrenchment of rights with the settlement of
other constitutional issucs. Premiers Davis and Hatfield, on
the other hand, have supported the entrenchment of a Charter
of Rights and Freedoms. It is also worth noting that opinion
polls conducted on this subject have been overwhelmingly
supportive of the general concept of an entrenched Charter of
Rights and Freedoms. I will return later to the charter and its
contents.

. (2110)

The unilateral nature of the process has been subjected to a
great deal of emotional rhetoric, particularly when it has been
labelled “colonialist”. It would perhaps be helpful to set out
some of the basic facts.

In the first place, the British North America Act, although
not the entire Constitution of Canada, is our basic constitu-
tional document. As all such documents are and must be, it is
amendable and it has, in fact, been amended many times since
1867. Reference has been made to these amendments by other
honourable senators. The amending formula, although some-
what vague, does exist. It requires that a joint resolution from
the Senate and the House of Commons of Canada be sent to
the monarch to request enactment by the British Parliament.
In 1931, the Parliament of Canada, by way ofa Joint Address,
asked that this process continue. Unless we wish to proceed
with a unilateral declaration of independence–and the gov-
ernment clearly docs not–the Parliament of Canada has no
option but to request that the British enact each and every
amendment that is sought. I repeat, there is no option but to
use the auspices of the British Parliament, unless we in
Canada wish to ignore entirely our legal responsibility under
the British North America Act and the Statute of
Westminster.

Furthermore, every amendment is, in one sense, unilateral in
that, for it to be put into effect, it must first be requested in a
Joint Address from the Parliament of Canada. No other
legislature outside the Parliament of Canada has any official
role to play in the passage of the Joint Address. The process is
not un~Canadian, because the essence and the details of the
resolution have been conceived, written and amended in
Canada by Canadians. The British North America Act itself is
just such a creation. It was written in Canada by Canadians
for Canadians. It is the basic constitutional document for
Canada. The 20 or so amendments to this act are Canadian
creations, as is the proposed resolution. So, one sometimes
wonders what the fuss is all about.

In 1867, the British North America Act created the Domin-
ion of Canada, the first such dominion within the British
Empire that would henceforth be in complete control of its
domestic affairs. However, Canada was still in a semi-colonial
position; its independence was not complete. This was reflected
by the fact that the British North America Act did not contain
a domestic amending formula.

In 1931, when the Statute of Westminster confirmed
Canadian sovereignty with respect to its external relations, the
development of Canadian sovereignty was almost complete.

[Senator Graham.]

DEBATES March 31, 1981

However, Prime Minister R. B. Bennett decided that, in the
absence of agreement on an amending formula, it would be
better to leave that process in the hands of the British govern-
mcnt. This does not mean that it would not be in our own
interest and for our self-esteem, not to mention our interna-
tional reputation to bring this outdated amending process to an
end. The government is saying today that this is not 1931, and
in spite of continued disagreement on an amending formula,
the time is right and we should remove this last vestigc of
colonialism. There is widespread popular support for this
proposition. Indeed, I can again quote Jake Epp who, on
January 20. 1981, declared:

It is the popular will of Canadians that our Constitution

rest in this country.

Does anyone seriously question the need for patriation, per
507 The answer is a clear: No. But patriation without an
amending formula would place this country in a most ambig-
uous position. It is unclear, at least to me, just what the
procedure for amendment might be. Perhaps it would require
the unanimous consent of all the provinces and the federal
government. If this were the case, we would be left with a
Constitution that would be almost impossible to change, in my
view. Always, there would be at least one province that would
refuse to give up its protective vcto for something less substan-
tial. That one objection would rule the day. Canada would
have the worlds most rigid federal constitution. No other
federal country insists on unanimity by its constituent parts.

The federal government has suggested one way to escape the
tyranny of the rule of unanimity. It has admitted that its
preferred formula may not be the most acceptable one, and
has, therefore, provided a two-year period for further negotia-
tions on the subject of the amending formula. If the federal
and provincial governments emerge from these negotiations
with opposite conclusions, the people of Canada will have the
opportunity to cast the deciding vote in a referendum. I am not
a champion of refercnda, but I am convinced that in a matter
so fundamentally important to the future of our country, a
deadlock-breaking mechanism is absolutely essential.

I believe that the stand of the official opposition, although
expressed with emotion and great moral indignation, is not so
very different from that of the government. They would ask
for immediate patriation of the British North America Act
with an amending formula of their choice. Their choice of an
amending formula is their own particular version of the
so~called Vancouver consensus. It is worth making the point
that the Conservative choice for the formula is simply one
political option. In fact, it is one that I believe they acknowl-
edge is really incomplete. They would permit only one year for
their formula to be revised. The consensus required would be
federal concurrence, with seven provinces having 50 per cent
of the Canadian population. The government, on the other
hand, has chosen it different formula, one regarding which, at
one time, at the meeting in Victoria in l97l, there was
unanimous agreement among the 11 first ministers. The gov-
ernment will continue to encourage negotiations towards a
more acceptable formula. If an accord between the federal

March 3l,l98l

government and the provinces is not possible, then the Canadi-
an people will choose.

I suggest that, on the face of it, the process which the
government proposes is even more flexible and permissive than
that suggested by the Conservative Party. The difficulty with
patriation, plus an amending formula, is not so much a ques-
tion of process but a question of detail: Which formula do you
like, Vancouver or Victoria? The essential point is that never
before has there been such widespread agreement and support
for patriation than now. To do so, without an amending
formula and a deadlock-breaking mechanism, would simply
lead to years, even decades, of stagnation and hopeless
frustration.

The main issue, then, has become: Why include a Charter of
Rights and Freedoms? Here we have an interesting conun-
drum. The inclusion of some kind of amending formula is not a
matter of dispute among most people. What is in dispute is the
content of the formula. Here it is fair to say that the content of
the charter is not much disputed among Canadians, with the
exception that the opposition argues for the inclusion of other
rights. There is all-party agreement that the entrenchment of
rights is worthwhile. The complaint is as to the process, having
the necessary amendments enacted by the British Parliament
prior to patriation.

It has already been pointed out that the British Parliament
must at this time play a role in making amendments to the
Canadian Constitution. The role is the same whether the
amendment be for an amending formula, a charter of rights,
equalization or resources. It is no more colonial for one than
for the other, as both are substantive amendments to the
Constitution, and both lack unanimous provincial consent.

One may ask whether there is any difference between the
two. In the sense that each is an amendment, there is no
difference; the process is the same. However, as indicated
earlier, it would be tragic to patriate the Constitution without
an amending formula. It could produce a constitutional strait-
jacket. The Charter of Rights and Freedoms could, with
substantial provincial agreement, be implemented under the
Victoria formula, but many of the opposition have argued,
“Why not wait?”

0 (2120)

Essentially, the government offers two answers to this ques-
tion. In the first place, the government feels that it, along with
the provincial premiers, promised the people of Quebec, in the
referendum campaign, significant constitutional change. The
federal government is attempting to live up to its promise with
the proposed resolution. The resolution contains an acknowl-
edgement of fundamental freedoms and rights to equality
before the law, to equal protection of the law, and to political
and legal rights. Multicultural rights are recognized and
aboriginal and treaty rights are affirmed, The right to move
throughout the country to accept employment is affirmed and
established.

The provincial “best efforts” draft respecting equalization
payments to provincial governments is enshrined. Provincial
control is established with respect to the management, de-

SENATE DEBATES

2195

velopmcnt and conservation of non-renewable resources, fores-
try and hydro~electric resources. For the first time the prov-
inces are given entry into the field of indirect taxation with
respect to these resources. These changes are important; they
are very substantial.

With the exception of the enshrinement of the principle of
equalization and the addition of provincial management and
taxation of natural resourees-both items, by the way, offer
substantial new concessions to the provinces-there is no effect
on the division of powers. Sections 91 and 92 of the British
North America Act have not been altered to the detriment of
either level of government.

I want to emphasize, as others have before me, that the
government does not claim that constitutional change will
cease with the present resolution. This, it acknowledges, is only
a beginning. However, it is a necessary beginning because,
without it, meaningful constitutional change will continue to
be sacrificed on the altar of unanimous consent.

The proposed resolution does two things which make future
change of the division of powers possible. It provides for a
formula by which agreements may be formalized. It removes,
from the debate on political changes, bartering over the inclu-
sion of human rights. The second reason for including a
Charter of Rights now is precisely because, as I mentioned
earlier, it would be almost impossible to achieve the necessary
provincial accord in the near future. Negotiations over human
rights will either have to be dropped altogether or they will
continue to be mixed up in negotiations over fishing bound-
aries, or natural resource taxation, or whatever.

The official opposition proclaims that, to proceed with
entrenching rights in the Constitution by way of the traditional
route of going to Great Britain, is dangerous and threatening
to the continued well—being of the country. On the surface, this
proclamation would appear doubtful. If, however, by some
stretch of the imagination it is true, I believe there is a remedy.
If the nation is imperillcd by this action of the Liberal
government, one might logically expect the public to rally
around Mr. Clark and his confreres in the House of Commons.
One might expect the country to survive to the next election, in
which, given the hypothetical crisis of confidence, Mr. Clark
would be returned to power with a majority government.

Senator Grosart: Hear, hear.

Senator Frith: That is the way to get their attention.

Senator Graham: In this event, the new prime minister, who
is undoubtedly a humane man and one who is very sensitive to
the aspirations of the provinces, will be able to reach an accord
on constitutional change. This change will be possible under
the amending formula. Certainly, the Victoria formula would
not be too much of an obstacle for a federal government bent
on saving the nation, particularly since the new prime minister
would not then require the unanimity which the present gov-
ernment is being askcd to achieve.

Senator Flynn: But Mr. Davis would object.

Senator Graham: A new federal government with provincial
support could replace the Victoria formula with the Vancouver

2196

consensus. It could rewrite the Charter of Rights so that
provincial sensitivities would not be offended. All that would
be required would be popular provincial support which, it is
claimed, can be achieved by an accommodating manner and
political will. Already the official opposition claims that the
popular will is behind it and that the provinces are in accord
with their position. So, one might ask whether they will be
prepared to accept the challenge and campaign on revising the
charter and replacing the amending formula at their next
electoral opportunity.

As has just been mentioned, one can argue that the position
of the Progressive Conservative Party is to leave the settlement
of constitutional issues like the amending formula to govern-
ments acting in the traditional-style federal-provincial confer-
ence. It is true that from time to time there have been
suggestions for some sort of constituent assembly, but such a
process would seem to require provincial consent, and this
would not appear to be possible.

Let me acknowledge that the Charter of Rights which was
presented in October i980 was, by most accounts, deficient:
the wording was too vague; there were too many loopholes
through which government legislation could escape. This is a
prime example of a document inspired almost totally within
government, and it reflected the federal government’s desire to
accommodate, where possible, its provincial colleagues. The
special joint committee opened up the Charter of Rights and
Freedoms to the public, for which they are to be commended.
Besides four provincial governments, the two territorial gov-
ernments and four provincial political parties, 100 groups and
individuals appeared before the committee. Fifty-one senators
and 132 members of the House of Commons participated on
the committee, and other members and senators were recog-
nized and allowed to voice their concerns.

There would be no doubt that the special joint committee
presented the opportunity for widespread, meaningful partici-
pation by parliamentarians from both houses and by the
major, and not so major, interests within Canadian society.
There can be no doubt that the committee and the government
listened attentively to the various representations, and that
they acted in a sensitive fashion in responding to those
requests.

I want to congratulate all members of this chamber on their
leadership, participation and very positive work which cul-
minated in the positive results of that committee. The original
documents, which some critics called inadequate, even insipid,
left the committee hearings with a Charter of Rights in which
all Canadians can take great pride. But, honourable senators,
to send such a document back to intergovernmental meetings
could undo all of the progress which the committee and the
public have achieved.

It is also worth noting that there has been very little
criticism by provincial governments of the substance of the
charter. No premier has come out against the entrenchment of
aboriginal or treaty rights. No premier has criticized the legal
and political rights, although there is some reason to believe
that some would prefer to see them returned to the previously

[Senator Graham]

SENATE DEBATES

March 31, l98l

more limited state where the legal rights were tied to the
phrase “in accordance with procedures established by law.”

The point to be emphasized is that the Canadian govern-
ment, the members of the special joint committee of all
political parties and the participating public worked diligently
to improve the proposed Charter of Rights and Freedoms.
Those who object to its substance should explain just which
rights would threaten either the authority of their government
or the structure of parliamentary democracy.

The opposition response is two-fold. The official opposition
does not criticize the charter for what it contains; they ask that
more rights be added, and they ask that those rights be
interpreted in light of the supremacy of God, the family and
moral and spiritual values. This point was raised earlier by
Senator Muir and Senator Macdonald, my colleagues from
Cape Breton. The government recognizes the supremacy of
God, the family, and moral and spiritual values. The govern-
ment argues that this is not the right place to note the
supremacy of God at al. The government had included the
reference to God in the preamble proposed at last year’s spring
meeting of first ministers, but the first minsters rejected the
entire preamble at that particular time.

Q (2130)

The second response, which comes from some provincial
governments and from some honourable senators in this cham-
ber, is that the charter is unnecessary; rights in Canada are
well protected, they argue, and it is destructive of parliamen-
tary supremacy, There has been little or no compromise on this
position, and there is no evidence to suggest that any charter
would be acceptable to the provinces which take this view now.

To respond to the “charter is unnecessary” proposition, one
need only examine the hearings of the special joint committee.
Not only was entrenchment supported by the Human Rights
Commission and the Civil Liberties Association, but by organ-
izations representing handicapped Canadians, children, ethnic
groups and others.

Some of the most poignant testimony came from the Japa-
nese Canadians. They made a dramatic and moving plea for
the “inviolate entrenchment” of a charter of rights when they
stated:

We are a people who were undermined, who were over-
ridden, who were the victims of a political process when
such a basic and fundamental thing as rights were not
guaranteed, and today they are still not.
I quote further:

The Japanese Americans were able to return to their
homes a full nine months prior to the termination of the
Pacific war, while Canadian Japanese languished in the
internment camps and were being deported, sent back to
Japan most likely and dispersed, for almost four full years
after the unconditional surrender of Japan when the
presumed reasons for their confinement had vanished.

Senator Donahue: By a Liberal government.

Senator Flynn: Under the War Measures Act.

March 31,1981

Senator Graham: We are trying to provide against such
injustices in the future. Can anyone, conscientiously, ignore
such appeals so rooted in bitter experience? The committee
hearings were overwhelmed with similar testimony in support
of the entrenchment of rights in the Constitution.

On January I2, 1981 the Minister of Justice, the Honour-
able Jean Chrétien, presented to the committee a series of
possible amendments to the resolution on behalf of the
Canadian government. They were designed, mainly, to
improve the Charter of Rights and Freedoms in the light of
representations received by the committee. They also provided
a clearer definition of the principle of equalization. Further,
they guaranteed that the referendum procedure would be used
only as a deadlock-breaking mechanism and that its rules
would be established, initially, by a federal-provincial
commission.

Although the committee did not hear evidence on these
proposed amendments, it is fair to say that they were generally
well received by those who had submitted their criticisms of
the first draft of the resolution, although, according to some,
they still did not go far enough.

For example, Gordon Fairweather, of the Canadian Human
Rights Commission, announced that he was “delighted” with
the “substantive changes” proposed by the minister. With
regard to the reformulation of the limitations clause, he felt
that the minister had gone to “extraordinary lengths” to meet
the concerns of the commission.

Max Yalden, the Commissioner of Official Languages, was
pleased that official bilingualism was to be extended to New
Brunswick, although it must be acknowledged that he was
dissatisfied with the fact that the same language rights would
not be granted within Ontario. I, personally, share his concern
and hope that this deficiency will be corrected as soon as
possible in the future.

Some Hon. Senators: Hear, hear.

Senator Graham: Doris Anderson, former president of the
Canadian Advisory Council on the Status of Women, called
the amendments “major step forward,” adding, “the govern-
ment’s come a very long way toward meeting the concerns of
Canadians, including women.”

A letter from the Select Committee on the Canadian Consti-
tution of the Canadian Jewish Congress to the special joint
committee expressed the view that amendments to the
resolution:

-reflcct a substantial adoption of the many constructive
ideas coming out of the hearings and from the submis-
sions made by a large number of organizations that
appeared before your committee.

Even more enthusiastic was the response of Walter Tar-
nopolsky, president of the Canadian Civil Liberties Associa-
tion, when he said:

They’ve responded to just about everything that we in the
Civil Liberties Association asked for. It’s very difficult to
see how one can criticize it.

SENATE DEBATES

2197

Lawrence Decore, the outgoing chairman of the Canadian
Consultative Council on Multiculturalism, expressed genuine
pleasure at the acceptance of the provision recognizing signifi-
cance for western Canada, where half the population is neither
of English nor French origin.

Jim Derkson, national co-ordinator of the Coalition of Pro-
vincial Organization for the Handicapped, congratulated the
government after the acceptance of the inclusion of “physical
and mental disability” in the equality rights clause, clause 15.

The leaders of the National Indian Brotherhood, the Native
Council of Canada, and the Inuit Committee on National
Issues were convinced that the amendments of January 12 had
not secured their aboriginal rights and that they would not
withdraw their efforts to prevent the patriation of the British
North America Act, A dramatic reversal in this attitude
occurred following the negotiations which culminated on Janu-
ary 30, I981, in which a new Part II, clause 33, was added to
the Constitution Act, 1981 which recognized and affirmed
both aboriginal and treaty rights for the aboriginal groups.

The members of the three political parties on the committee
all agreed to a package of amendments which met many of the
concerns of the Indians, the Metis, and the Inuit of Canada.
The amendments were passed unanimously, The Indian, Metis
and Inuit leaders declared that they would not only support
patriation of the Canadian Constitution, but that they would
now actively work, both in Canada and in the United King-
dom, for the accomplishment of this fact. It was termed an
“historic moment” marking “a new beginning for Indian
people in Canada.”

Honourable senators, I believe this resolution provides a new
beginning for all the people in Canada, and for Canada itself.
Its passage will open the door to an era of even greater
freedom and rights for our people, and more complete in-
dependence and sovereignty for our country.

For these reasons, the resolution is worthy of Canada‘s
future, it is worthy of its people, and it is worthy of our
support.

Hon. John M. Godfrey: The honourable senator stated that
in l93l Prime Minister Bennett decided to leave the process of
amendment in the hands of the British government. is it not
true that the provinces also decided, as a result of an agree-
ment between Prime Minister Bennett, for the federal govern-
ment, and the provinces, that this should be left in the hands of
the British Parliament?

Senator Graham: Originally I had that as part of my text,
but I could not establish whether the provinces had pressured
Prime Minister Bennett to do that, so I excluded it. I could not
find the proper reference. I was told that, as you had obviously
been, honourable senator, but since I could not establish it as a
fact I decided to delete it from my text.

On motion of Senator Thériault, debate adjourned.
The Senate adjourned during pleasure.

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