Canada, Senate Debates, “Proposed Resolution for a Joint Address to Her Majesty the Queen—Debate Adjourned”, 32nd Parl, 1st Sess (14 October 1980)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1980 at 847-860.
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PROPOSED RESOLUTION FOR A JOINT ADDRESS TO HER MAJESTY THE QUEEN—DEBATE ADJOURNED
Hon. Raymond J. Perrault (Leader of the Government) rose, pursuant to notice:
That he will call the attention of the Senate to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada”, tabled in the Senate on 6th October, 1980.
He said: Honourable senators
Hon. Jacques Flynn (Leader of the Opposition): Honourable senators, I rise on a point of order. I gave notice to the Leader of the Government a few moments ago that I would do so.
I told him last Wednesday, I believe, that I had some reservations about the procedure surrounding this inquiry. I have not been able to find any precedents for a debate of the kind that will follow, if the Leader of the Government proceeds-that is, a debate preceding the formal motion that will come to us from the other place, if and when the resolution is adopted by the other place. It seems to me that it is rather irregular, but I am not on that basis objecting to the Honourable the Leader of the Government’s proceeding with his inquiry.
However, I tell him this: Such a debate would be entirely out of order, if we were to accept the opinion given a few moments ago by Senator Frith. I do not know if that was a legal opinion, but it was to the effect that it would be improper to have two debates on the same subject. In other words, we should not debate a matter that would come to us later on. And yet it is quite obvious that this debate, the debate that will ensue from this inquiry, will be repeated when the resolution finally does come to us-unless we are told that we cannot debate the resolution when it comes to us because we will have already debated it.
In any event, the position that we take on this side is that, if the government leader and other senators on the other side wish to participate in this debate, they may do so, but so far as we are concerned we will abstain, unless circumstances provoke us into entering the debate. But I doubt that very much.
The Honourable the Leader of the Government should be warned that we do not consider this inquiry as a substitute for the debate that will take place, if the resolution does come to us after having been passed in the other place either in its present form or in an amended version. Obviously, it would be quite difficult for us to discuss now a matter that might come here in a different form. The fact is that we do not know what will happen after the meeting of the premiers or as a result of the trade-off taking place between the NDP and the Prime Minister at this time. The form of the resolution may be changed entirely, for all we know.
My second point is this: I warned the Leader of the Government that this debate could not be a substitute for the questions that we want to put during Question Period on any matter concerning this resolution-and if Senator Frith objects, he is entirely wrong. In the other place, the Question Period continues with all manner of questions related to the resolution being asked. And we on this side intend likewise to continue to put questions on matters relating to the resolution, even if there is an inquiry taking place. We will not be prevented by this ploy from dealing with the resolution in the proper way, when it reaches us, if it does. We will not be deterred by this device from asking in the Question Period all the questions we think are relevant and appropriate.
Senator Perrault: Well, honourable senators, the attitude of the Leader of the Opposition is somewhat more meticulous than it was one week ago, when he turned the Question Period into what was, in effect, a constitutional debate. The point taken then was that certain documents had been laid on the table and were “fair game” for discussion during the Question Period. Apparently, however, those same documents are not fair game for the subject of an inquiry. May I provide the background to this inquiry for the benefit of honourable senators? Both publicly and privately I expressed the view of the government that this was a means designed primarily to assist the “opposition in setting forth
their views on this historic initiative by the government. That is why the initiative was undertaken. It was stated in the house that we felt that so many questions were being asked during Question Period –
Senator Flynn: That is not the same thing at all!
Senator Perrault: – that it would be proper to have an inquiry, in which the substance of those documents could be discussed here.
In the second place, I gave the assurance, which I give again, that this is not a substitute for the debate which will undoubtedly take place at a later time.
Again, let me review the anticipated procedure with you. First there is a desire and an intent on the part of the government to accord all members of Parliament, whether they serve in the Senate or in the other place, a full opportunity to debate not only the motion to refer to a joint committee but also the contents of this resolution. That is of fundamental importance.
The procedure which is now being followed in the other place is to debate the motion to refer to the joint committee. If that motion is accepted in the other place, a message will be sent to the Senate inviting us to participate. There will then be an opportunity for a debate in this place, which will not be restricted; honourable senators will have an opportunity to set forth their views in the frankest possible terms.
Presumably, if we agree to participate in the activities of that committee and we decide on the number of senators from both the government and opposition sides to participate in the Senate component of that joint committee, we shall then make known our views to the other place. The committee will be established and meetings will be held and presumably members of the Senate may speak, put forward suggestions or propose that amendments be made when the committee reports back to Parliament.
The debate opportunities then could be substantial. If eventually amendments are proposed by the government, no doubt that could precipitate further debate in both chambers. Therefore the suggestion by the Leader of the Opposition that somehow an attempt is being made to frustrate the opposition, that there is some effort by the government to restrict debate, is entirely incorrect. If, for example, the Leader of the Opposition wishes this evening to begin, in the frankest possible terms, to offer his views with respect to the resolution and how the proposals can be improved, I will yield my place in this debate and allow him to speak now. That is how forthcoming we are. I repeat, I shall be glad to yield my place here this evening and allow the Leader of the Opposition or his deputy. or any other member of the opposition, to speak now.
An Hon. Senator: What a showman!
Senator Perrault: That is the offer we make. This is an opportunity to enable members of the opposition and members of the government to make known, not only to members of the Senate but to the whole of the country, their views concerning this resolution. If the debate in the other place continues for some time-I have no idea when it will conclude-I am sure that most senators would share the view that it would be a real disservice to the country not to have the Senate involved in the parliamentary dialogue. That is why I wish to call the attention of the Senate to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” and I should like to make a few preliminary remarks this evening.
Some Hon. Senators: Hear, hear.
Senator Perrault: Unless, of course, the Leader of the Opposition wishes to lead off.
Senator Flynn: No, no. If you are doing it merely for us, you might very well remain seated.
Senator Perrault: We believe this could be the beginning of a process of enlightenment which could be highly beneficial, particularly to those on the other side. Last Monday evening certain documents were tabled in this chamber which may be of significant, indeed profound, importance to the people of Canada. The proposed resolution respecting the Constitution of Canada included a proposed Address to Her Majesty the Queen and the draft of a bill which with or without amendment, as Parliament may determine, and as members of this chamber may help determine, will be despatched to Westminster for consideration and passage by the British Parliament.
The documents which were tabled set out the various measures necessary to bring about amendment and the so-called patriation of the Constitution of Canada. In addition to transferring from the United Kingdom to Canada all authority to legislate for Canada, and providing for future amendments to the Constitution to be made in Canada, the measures contain new constitutional provisions, such as the Canadian Charter of Rights and Freedoms and provisions relating to the implementation of the constitutional changes.
Quite understandably many honourable senators in all parts of this chamber have demonstrated a great interest in the constitutional proposals, because these initiatives are of historical importance and significance.
After the tabling of the documents last week, it was obvious from the number of questions asked by senators during Question Period that it would be appropriate to provide an opportunity here for honourable senators who desire to do so to set forth their preliminary views of the proposed resolution for a Joint Address to Her Majesty concerning the Constitution.
Members of the Senate are aware that a motion to refer the proposed resolution to a joint committee of the Senate and the House of Commons is now being debated in the other place, as I mentioned a few moments ago. In the normal course of events, members of the other place would vote on the motion to establish the committee and a message would be sent to us asking for our concurrence in the proposal. The explanation of the proposed resolution which I hope to give tonight may help
to establish some of the background for this government initiative.
I realize that I cannot hope to answer all of the questions arising out of the documents that have been tabled here, and I cannot hope to answer all of the questions which may arise in the minds of honourable senators, because the resolution and some of the sections of the proposed Constitution Act, 1980, are not without complication.
As I stated here last week, a full and fair opportunity will be given to all senators to participate in the process of considering and debating the proposed government constitutional action.
Honourable senators can feel assured that their views and their proposals for clarification-and indeed their ideas for possible amendment of the proposed measure-will be given every consideration. There have been some reports that the government is inflexible, that there is a desire to have the present measure move ahead as quickly as possible without amendment or change. I wish to give assurance that there will be an opportunity for debate under this present inquiry, and there will be a further opportunity for debate and discussion should a message be received from the other place asking for our participation in joint committee activities. I know that honourable senators will take advantage of those opportunities.
At the present time, while some amendments to the Constitution may be made by Parliament or a provincial legislature acting alone, others require more complex action. They require the approval by both houses of the Parliament of Canada of a resolution to amend the Constitution of Canada. Such resolutions provide for a joint address of the Senate and the House of Commons to be presented to the Queen asking her to forward the proposals to the United Kingdom Parliament for enactment.
In future that procedure would not be necessary. The Constitution could be amended in Canada, and for an interim period it is proposed that the procedure for amending the Constitution would involve the consent of both Houses of Parliament and all of the provinces. Thereafter a permanent amending formula would come into effect by agreement, lapse of time, or after a referendum.
Under the proposed permanent procedure, most constitutional amendments could be made upon authorization by both houses of Parliament and the legislative assemblies of at least six provinces representing all regions of Canada. However, a number of special rules would cover particular circumstances. Specifically, amendments that apply to some but not all provinces could be approved by Parliament and those provinces. Also, as is now the case, Parliament or a provincial legislature acting alone could in some circumstances amend certain provisions of the Constitution.
The major elements of the document that was tabled a few days ago are, first, the proposed resolution. The preamble to the proposed resolution describes the historical position of Canada in respect of amendments to the Constitution; the present status of Canada as an independent state; and the desire for change that has led the Senate and the House of Commons to put forward the resolution. The Address to the Queen, which is set out in the resolution, is similar to previous addresses to the monarch and asks the Queen to lay the Canada Act before the United Kingdom Parliament for enactment.
The Canada Act commences with the recital of the action taken in Canada that makes it appropriate for the United Kingdom Parliament to enact the proposed statute. The act is technical in nature. It provides for the enactment of schedule A, which sets out the French version of the Canada Act, insofar as it is not contained in schedule B. The enactment of the French version in this manner is necessary because the laws of the United Kingdom are enacted only in the English language. As provided in the Canada Act, the French and English versions would have equal authority in Canada. This would be the first time that a United Kingdom act, enacted for Canada, would have an official French version.
The Canada Act also provides for the enactment of the Constitution Act, 1980. This contains the new constitutional provisions.
Finally, the Canada Act provides that no future United Kingdom laws shall apply to Canada.
The Constitution Act, 1980 is in the same bilingual format as acts of the Parliament of Canada, and the English and French versions would be equally authoritative. It contains important new provisions that for the most part are not closely linked to matters now provided for in the Constitution of Canada. It includes the Canadian Charter of Rights and Freedoms, and provisions relating to equalization and regional disparities, and constitutional conferences of first ministers, as well as procedures whereby the Constitution could in future be amended in Canada.
In addition, the act provides for the preparation of the first official French version of the Constitution, and would change the titles of previous British North America Acts, so that they would in future be known as Constitution Acts. These name changes and other consequential amendments are set out in the schedule to the proposed item.
On the adoption of the Canada Act by the United Kingdom Parliament, Canada would have a revised Constitution that forms part of the body of laws of Canada. It would be exclusively Canadian because in future it could be amended only in Canada.
Some spokesmen for certain parties across Canada are critical of the fact that there is an attempt to amend the Constitution and to patriate it unilaterally; but over a period of 53 years, honourable senators, there have been numerous attempts to patriate the Constitution and to find an amending formula. Attempts were made in 1927, 1931, 1935-36, 1950, 1961, 1964, 1971, 1975-76, and 1978-79. The government quite clearly is moving to break this deadlock which has continued for so many years.
Honourable senators, the question was asked earlier: “Is the government action legal?” Of course, the government believes
that it is acting legally, but important as well is the fact that obviously a great majority of the Canadian people, while they may disagree on methods, want to see the Constitution patriated.
A commitment was made to Canadians at the time of the recent referendum that if the concept of sovereignty association were rejected they would be offered a renewed federalism. As a result of this pledge there was a First Ministers’ Conference on June 9 which resulted in an effort by both the national government and the provinces to reach a consensus on 12 areas of constitutional renewal. I am sure honourable senators followed those discussions very closely, as did all of the Canadian people, and I think it was realized then that unanimity is a very difficult goal to achieve. While provincial governments agreed on a number of matters, there was very rarely complete and absolute unanimity. Certainly there were disagreements between the federal and provincial governments.
Over the summer, and throughout the First Ministers’ Conference in September, every effort was made to reach agreement with the provinces. The efforts by the federal government to achieve agreement can only be described as monumental. Many of the provincial premiers have stated there was a lack of flexibility on the part of the federal government. We have heard that recurring theme in public pronouncements by some premiers. What they are really saying is, “We agreed on a substantial number of matters, though not all of them; but we achieved a compromise in a number of areas, and Ottawa did not agree with our version of the compromise, thus Ottawa is unyielding.” That really is not an example of provincial flexibility.
Senator Flynn: Vice versa!
Senator Perrault: To say to the federal government, “You will not give us a hundred per cent of our demands, and thus you are inflexible,” is not an example of flexibility. The federal government certainly has the right to say, “In any negotiation there must be flexibility on both sides. There must be an offer to be co-operative on both sides.”
I want to remind honourable senators of the fact that the federal government was prepared to make concessions to the provinces in the following areas.
First, the national government was prepared to increase the power of the provinces and further decentralize its own powers. Please note that this is in a federal state which is already among the three most decentralized federal states in the entire world. This is not even a matter for debate. Canada is a greatly decentralized federation.
Secondly, the national government was prepared to give the provinces the ability to levy indirect taxation on resources and make laws governing interprovincial trade in resources. This was a major concession by the federal government. It was a major offer to the provinces.
Thirdly, the national government proposed new provincial powers over fisheries. There was a proposal, as honourable senators will recall, to give the provinces exclusive control over inland fisheries, and a degree of shared jurisdiction in offshore fisheries. It was not a question of turning control over to the provinces, but it was proposed that there be co-operation in many areas.
Fourthly, the national government offered the provinces a greater say in management in the field of offshore resources, despite the fact that constitutional rulings from courts have ruled rather heavily in favour of the federal government. Atlantic Canada, for example, would have received 100 per cent of offshore revenues until the income of those provinces went above the national average. This is a provision that surely appeals to the idea of fair play. Surely the people in the Atlantic provinces perceived this federal offer to be fair.
Fifthly, the national government offered provincial jurisdiction in communications. It did not offer provincial jurisdiction in all types of communications, and this was natural, because there are certain interprovincial aspects to communications, such as the telephone services, and so on.
Sixthly, the provinces were offered a say in the appointment of the Supreme Court.
To all of these things some of the provinces responded by saying, “Look, if you meet more of our demands we will give serious consideration to approving all or part of your human rights package. If you give us the deal we want we, the provinces, will accede to your wishes to enshrine and entrench human rights for the Canadian people.” The federal government took the position that you do not bargain human rights. You do not say, “Look, if you give us freedom of assembly entrenched for all Canadians -”
Senator Asselin: They have it already.
Senator Perrault: ” – we will be prepared to give you a little more jurisdiction in fisheries; indeed, you can have all of the fisheries,” and so on.
You know, basically it came down to that kind of bargaining tactic by some of the premiers. Honourable senators saw it all on television, so it needs no embellishment. It requires no further discussion; it was there for all of Canada to see.
The national government felt that after that meeting, after another failure, the latest in the long and unhappy 53-year chronology, it had no choice but to act, for the following reasons: the commitment made to further constitutional change, to end Canadian frustration with the ability of the government, leaders of governments and parliamentarians, wherever they serve, to make Canada work the way it can and should work; a commitment to provide an alternative to sovereignty association; a commitment to people, whether they live in Atlantic Canada, western Canada, central Canada or northern Canada, to make Confederation work more effectively for them. So the proposed resolution was evolved. It has been criticized because some people say it does not go far enough. They say, “If you are prepared to entrench human rights, why don’t we have an entrenchment of all sorts of other matters as well, such as the communication offer made during the constitutional conference, or resources, or this, that and the other thing?” Others say it goes too far. They say, “Look, why don’t
you just patriate the Constitution? We can agree on that. We can achieve a basic agreement on patriation.”
Some Hon. Senators: Hear, hear.
Senator Perrault: Some opposition spokesmen here and elsewhere have said this: Premier Davis, of course, wants to go beyond patriation. Others wish for more, but there is a school of thought that we should patriate the Constitution for now, and then, when we develop an amending formula, go into all of the areas of constitutional reform and amendment which are required in this country.
However, after weighing all of the arguments, the government brought in a modified package-indeed, a moderate package-a limited package involving human rights and patriation of the Constitution. We have a resolution for a joint address requesting enactment of a statute by the Parliament of the United Kingdom-a proposed United Kingdom Canada Act, the French version of which is contained in Schedule A which would give force of law to Schedule B which is in the Constitution Act, 1980. The Constitution Act, 1980 contains new provisions of the Canadian Constitution, including Schedule 1 to the Constitution Act which lists most statutes making up the Constitution of Canada but would rename them.
By this measure the government hopes to give Canadians the following elements of constitutional renewal: first of all, patriation of the Constitution. I think we are all embarrassed with the idea of having our Constitution, one that was the product of historic meetings over a century ago, in Westminster. This is not a political hang-up with any of the parties. Surely it is embarrassing for our good friends in Great Britain to still have our Constitution in their country after all these years. They have done us a service by being as tolerant as they have about this whole matter of our being unable to develop a formula to bring back our Constitution or to develop the resolve to do so.
The entrenchment of a charter of rights and freedoms for Canada is the second element of constitutional renewal; third, entrenchment of principles of equalization payments and reduction of regional disparity; fourth, a provision for a completely Canadian amending procedure for the entire Canadian Constitution; and, fifth, some provision for modernization of the text of the Constitution now and in the future.
First of all, I will deal with patriating the Constitution. It is essential to the pride of our nation to bring home the Constitution and not to have to ask another country to amend it whenever we wish to make changes. That is agreed. Patriation of the Constitution has received support from all Canadian parties at the federal level and has also been supported at the provincial level. We have all made political speeches on the subject. The only objections have come from some provinces which wish to use patriation as a bargaining tool for delay. Some appear to have other objectives and have been using patriation as a tool.
Senator Macquarrie: Shame!
Senator Smith: That is a most unfair and insulting comment.
Senator Perrault: The honourable senator will have an opportunity to speak in this debate, and I hope he does. Senator Smith has had much experience in the provincial field particularly, and we would welcome his remarks.
Then we come to the Canadian Charter of Rights and Freedoms. It protects seven categories of rights: fundamental freedoms, democratic rights, mobility rights, legal rights, nondiscriminatory rights, language rights, and minority educational rights. The interesting thing is, of course, that these rights are based on a number of statutes now found at the federal level such as the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Criminal Code, as well as the International Covenant on Civil and Political Rights, the so-called “U.N. Charter” to which Canada, with the approval of all ten provinces, became a party in 1976. All of the rights proposed for entrenchment are rights which Canadians, through their experience of nationhood over 100 years, have come to accept as fair, decent and reasonable.
There really is no dispute about the desirability of ensuring these human rights. There is a difference of opinion, as honourable senators are aware, between those who believe that entrenchment may be necessary and those who believe that this matter of human rights can be left to provincial legislatures. That is another aspect of this question which is under debate.
Fully nine sections are derived in whole or in part from the Diefenbaker Bill of Rights, while six of the legal rights are derived from the U.N. covenant. Surely they are not bad precedents.
Senator Macquarrie: Smoke screen!
Senator Perrault: Fundamental freedoms include freedom of conscience and religion, freedom of thought, belief, opinion and expression, including freedom of the press and every media and freedom of peaceful assembly and of association.
media and freedom of peaceful assembly and of association. Democratic rights include the right to vote or stand for office in an election for the House of Commons or a legislative assembly, the requirement that no House of Commons and no legislative assembly continue for longer than five years except in unusual circumstances, and the requirement that there be an annual sitting of Parliament and an annual sitting of each legislature.
Mobility rights give Canadian citizens the right to establish themselves and seek employment in any province of Canada as well as the right to enter, remain or leave Canada.
I should like to stop here and tell you of an experience I had a few weeks ago. I met an MLA while I was attending a Commonwealth parliamentary function, and he said to me, “You know, there are 2,000 people a month moving into our province. They’re trying to get in on the gravy train. We’ve got to do something about them.” At that moment I understood, perhaps for the first time, why we need mobility rights in this country. If we are going to start looking on people who move for opportunity from Newfoundland to western Canada, or
vice versa, as second class citizens, we’re in trouble. If there are some legislation and authorities who are prepared to say, “You can’t come here; you can’t share in this; this is part of ours and you can’t get it; this is our birthright; this is our heritage,” then we in this national Parliament should be prepared to do something about it. If provinces are moving in that direction, then it is time to entrench and enshrine the rights of Canadians to move freely around this country.
We never had hindrance to the movement of people when we built this nation in the first place. People came from less privileged parts of the world to seek out a better future in this country, and if they wanted to go to British Columbia, Alberta, Newfoundland, Ontario, Saskatchewan, the north, or anywhere else, they went there and carved out a living for themselves, and they did a pretty fair job in the process. The national government suggests that now is the time to entrench those mobility rights so that no-one can say, “You cannot come in.”
Minority language educational rights provide the citizens of the English-speaking or French-speaking minority of a province to have the right to educate their children in that minority language wherever numbers warrant. Every right-thinking Canadian supports that idea as well. Surely this basic right should not be left up to the vagaries of some provincial government to determine. In the ultimate, there should be legal protection of this right. There should be legal guarantees-a court which, if necessary, can determine the meaning of “where numbers warrant.” If anyone assumes that somehow a Draconian federal government will move in with a police force to enforce a measure such as this, he would be entirely wrong. Like all provinces, my home province of British Columbia has prior rights in education and would continue to have the right to administer the education provision of the Constitution, the right to implement and to interpret, according to its own standards, the provision, “where numbers war- rant.” If a person feels aggrieved, feels that he has been unfairly deprived of an opportunity to have his youngster educated in English or French, he would have ultimate recourse to the courts and could appeal to those courts to have that right interpreted and guaranteed. In no way would these human rights provisions render unnecessary or irrelevant existing human rights commissions or ombudsmen or MPs and MLAs, but the ultimate recourse to the courts would exist.
I see an honourable senator shaking his head. I would welcome his remarks in this debate. He can give us his viewpoint on the subject.
Senator Asselin: You are wrong.
Senator Perrault: Legal rights comprise the right of life, liberty and security of the person; protection against unlawful search or seizure and unlawful detention or imprisonment; the right upon arrest to be promptly informed of the reasons and to be able to retain counsel without delay; the right upon being charged with an offence to be informed promptly of the specific offence; to be charged within a reasonable time; to be presumed innocent until proven guilty; not to be denied reasonable bail without just cause; not to be found guilty on account of any act or omission that was not an offence when committed; not to be tried or punished more than once for an offence; not to be subject to cruel or unusual punishment; not to have evidence given used for self-incrimination in subsequent proceedings, and the right to the assistance of an interpreter.
I think if Mr. Diefenbaker were alive today he would say, “Hear, hear!” The surprising part about the situation is that some, but not all, of the opposition say, “No, no, we must not entrench these rights.” I think that John Diefenbaker, when he made his great speech in connection with the Bill of Rights, foresaw that if Canadians one day could be inspired to see the entrenchment of human rights in the Constitution it would be an even greater day for Canada than in 1960. This is what the Right Honourable John Diefenbaker said at that time:
This measure that I introduce is the first step on the part of Canada to carry out the acceptance either of the International Declaration of Human Rights or of the principles that actuated those who produced that noble document.
Many Canadians believe that the new proposals mark a continuation of the work of John Diefenbaker. These are the second and third steps.
Non-discrimination rights –
Senator Asselin: How about the War Measures Act.
Senator Perrault: I would be glad to speak on the War Measures Act, and if time permits I will do it.
There are to be non-discrimination rights which ensure that all Canadians, regardless of race, national or ethnic origin, colour, religion, age or sex have the same rights before the law. Mr. Diefenbaker spent his entire life working for that. Now we have some Conservatives saying, “We don’t want entrenchment. We don’t need it. Don’t give it to us. Leave it up to the provincial legislatures.” Are they serious?
Senator Smith: Not only Conservatives.
Senator Perrault: If human rights were so well and zealously guarded provincially 20 years ago, why did Mr. Diefenbaker feel it necessary to bring in a Canadian Bill of Rights in 1960? Because he was aware of the difficulties and risks, under certain circumstances, that Canada’s very basic human rights and freedoms could be protected adequately by certain provincial governments.
Senator Asselin: You want to destroy it.
Senator Perrault: Surely this is one of the reasons why Mr. Diefenbaker gave us a Bill of Rights. With respect to entrenching existing rights, in addition the Government of Canada believes that those rights that were previously set out in federal legislation or the Constitution should now be enshrined in the charter.
Official language rights give English and French equal status and rights as to their use in all institutions of the Parliament and Government of Canada. It was supported by
the Conservative Party when the vote was held in Parliament. The statutes, records and Journals of Parliament are printed in both English and French. Everyone has the right to use English or French in Parliament, federal courts, and in com- munications with any head or central office of the Government of Canada. I notice some concern on the part of the Indian people that their rights may not be adequately protected, but there are sections in here that guard the rights of indigenous people. Time does not permit me to speak at length about all of the sections, but I hope in subsequent debate and discussion to say more.
The use of either English or French in the legislatures, the courts and in statutes and records of the Provinces of Quebec and Manitoba would continue to be protected by existing constitutional provisions.
Senator Asselin: What about Ontario?
Senator Perrault: Finally, Canadians enjoying rights that are not specifically mentioned in the Charter, such as our Indian people and others, would continue to enjoy them. This would include the traditional rights and freedoms enjoyed by the native peoples of Canada. I am glad to speak to that point again today. A number of native Indian groups have sought reassurances since the document was tabled.
Generally speaking, the only limitations that would be imposed on the exercise of any of the rights and freedoms outlined would be those reasonable limits generally accepted in a free and democratic society.
The Constitution Act, 1980, entrenches the principle of equalization and commits both orders of government to promoting equal opportunities for the well-being of Canadians, furthering economic development to reduce disparity and opportunities, and specifically providing essential public ser- vices of reasonable quality to all Canadians.
Since 1957 unconditional transfers known as equalization payments have been made by the federal government to enable every province to provide a reasonable level of public service without having to impose an undue tax burden on its residents. This practice of sharing has become a fundamental principle of Canadian federalism. Today, I think honourable senators will agree, the concept of sharing is under assault in some parts of our country, and if we ever adopt the philosophy of “I’m all right Jack,” if there is a part of the country which languishes and its people have substandard services and the rest of us don’t care, I think that is the first signal that Canada is about to be wound up. If in some equitable fashion we do not share our opportunities, our hopes and dreams and our resources, not just natural gas, oil and energy resources but the resources of industrial development across this country, giving the Atlantic provinces, the north and the west an opportunity for economic and industrial development that they have never enjoyed before, together with the sharing of transportation development and other opportunities across this country unless we accept this concept of sharing in its broadest and most equitable sense, then our future as a nation is dismal indeed.
Now I turn to the amending procedure. Honourable senators have asked a number of questions about it, and for some these are controversial sections. Some senators may have certain changes and amendments to suggest. There are four major proposals for an amending formula made in the past by the national government and the ten provincial governments. First of all, the Fulton-Favreau formula in 1964 called for the unanimous consent for the amendment of certain matters entrenched in the Constitution, such as the distribution of powers. Most other amendments could be made with the agreement of two-thirds of the provinces, representing 50 per cent of the population.
The Victoria Charter formula of 1971 provided for regional consent for the amendment of entrenched powers; that is, two Atlantic provinces, Quebec, Ontario and two western provinces, representing 50 per cent of the population of that region.
In 1979 the Continuing Committee of Ministers on the Constitution called for unanimity on changes to any amending formula, and on provisions that affect provincial ownership of and jurisdiction over natural resources; for other matters, the consent of at least seven provincial legislatures, representing at least 85 per cent of Canada’s population, would be required.
The Vancouver consensus refers to a formula based on a proposal put forward by Alberta during the constitutional discussions in the summer of 1980. The proposal called for the assent of Parliament in the legislative assemblies of two-thirds of the provinces, representing at least 50 per cent of the population. In matters affecting the powers and rights of the legislatures, the assets of property of a province or the natural resources of a province, a province could choose to opt out of an amendment that was not approved by its legislature.
Since none of these past proposals have resulted in unanimous agreement among the First Ministers, the Government of Canada has placed before Parliament a proposed resolution which contains provisions for patriation and amending formula. The resolution provides that those amendments to the Constitution which formerly had to be made in London will require the unanimous consent of Parliament and the provinces until an acceptable amending formula can be found, using one of these three methods. As honourable senators are aware, I think, during an initial 24-month period, constitutional amendment would require unanimous consent. These are the other three methods that are held out beyond that period.
If during the next two years federal and provincial governments reach unanimous agreement on a formula, it would be adopted, and there would be no need for a referendum or any other procedure. Let me say that I think there is a good possibility that an amending formula agreement could be achieved.
To facilitate agreement a First Ministers’ Constitutional Conference would be held each year until a formula is implemented. If the provinces and federal government fail to agree unanimously on a formula but eight or more provinces representing at least 80 per cent of the total population of all the provinces, agree within two years after patriation on an
amending procedure that meets the requirements set out in the resolution, this formula, and a formula similar in principle to the Victoria Charter formula, would be put to the people in a referendum.
The federal government will also have the opportunity at that time to put forward a formula of its own choice instead of a modified Victoria Charter formula. If there is no consensus among the provinces on a formula, the modified Victoria Charter formula would automatically come into effect two years after patriation. In general, that formula would require that amendments to the Constitution be approved by Parliament and by either the legislative assemblies or a national referendum, a majority of voters in a majority of the provinces, including every province that has, or has had, a population of at least 25 per cent of the population of Canada, at least two Atlantic provinces with combined populations of at least 50 per cent of the population of all of the Atlantic provinces, and at least two western provinces with a combined population of at least 50 per cent of the population of all of the western provinces. The decision to cal] a national referendum on a constitutional amendment would rest with the Canadian Parliament, and the Senate would be involved in that decision.
I know I am going on at some length, but may I present the government’s view on this “amendment by referendum,” which is something that has attracted so much attention in the media and which has caused so much parliamentary comment.
Section 42, which for some is a controversial section, provides for approval of amendment by referendum instead of by legislatures, as required in section 41. It is being argued that this section allows the federal government to amend the Constitution over the heads of the provinces. Well, in a sense it does. It allows going “over the heads of the provinces” to the people of the respective provinces. A better characterization, however, of the section is to say that it allows constitutional issues to be removed from the hands of governments and placed in the hands of the people for decision-which is not an indefensible and undemocratic concept.
Too often, perhaps, governments have a vested interest in constitutional amendment, which means that they make decisions based on what would lead to the most power for that particular government. This does not necessarily lead to the best solution for the country as a whole.
It is this attitude on the part of governments which perhaps has led to the continued deadlock in federal-provincial constitutional negotiations for more than 50 years. It must be emphasized that a referendum under this section cannot be won on the basis of a national majority only. Two majorities are required in order to assure acceptance of the proposed amendment in all regions-a majority of voters voting and a majority in each region. The purpose of this section is to place authority to consent to amendment directly in the hands of the people as an alternative to amendment by agreement of Parliament and the provincial legislatures. Thus, the required regional majorities parallel the consent required from the provincial legislatures under section 41.
Senator Balfour: How many commercials would you run?
Senator Perrault: On the basis of the present section 41, approval by referendum, therefore, would require a majority of the voters voting and a majority of the voters in every province having, or having had, 25 per cent of the population, a majority in at least two Atlantic provinces having a combined population of at least 50 per cent of the region, and a majority in at least two western provinces having the combined population of at least 50 per cent of the region.
If section 41 is amended as a result of an alternative proposal by the provincial and federal governments under section 38, then the requirement for regional approval in a referendum under this section would change accordingly.
It may be asked why only a referendum authorized by Parliament and not by the provinces is provided under this section. The rationale is that only Parliament represents all of the people of Canada, and consequently the ability to go to them by way of a referendum should be vested in the national Parliament. Again, this is a matter which I know honourable senators –
Senator Balfour: Aided and abetted by Jim Fleming’s commercials.
Senator Perrault: -will wish to debate, and I hope that the honourable senator, who has been so vocal this evening, will participate. We will listen with real attention to what he has to say.
Senator Asselin: Let’s hear about section 44 now.
Senator Perrault: Section 44 provides that, where the Senate does not approve a constitutional amendment approved by the House of Commons-and the provinces, under the Victoria Charter formula-under subsection 41(1) or section 43, the amendment could, nevertheless, be made after a delay period of 90 days with the House of Commons approving the amendment a second time.
This, essentially, is the same principle that was approved by the Senate in the report of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, tabled in 1972. That report recommended:
The present veto power of the Senate over legislation should be reduced to a suspensive veto for six months
Section 44 talks in terms of a suspensive veto of 90 days. But let me go beyond that and clarify section 44 again. I know honourable senators have asked questions on this.
Section 44 provides that where the Senate refuses to authorize an amendment by passing a resolution, the House of Commons may override that lack of consent by repassing the resolution.
Senator Asselin: You favour this clause, then?
Senator Perrault: But all such amendments will require the approval of either a majority of the provinces regionally distributed as set out in subsection 41(1), or the provinces immediately concerned, section 43.
It is not thought appropriate that the Senate should be able to block a proposed amendment to which both the elected House of Commons and the relevant elected provincial legislative assemblies have agreed. That section has no application to amendments by national referendum under section 42, and it has no application to amendments which require Parliament’s consent alone-those related to the executive government of Canada, or the Senate, or the House of Commons under section 48. In response to a number of questions it must be said, however, that an amendment to abolish the Senate, as unlikely as that may be, could be accomplished without Senate approval by virtue of this section, since the powers of the Senate, by virtue of section 50, are amendable by the general amending formula, section 41, and are not among the items which require Parliament’s consent alone.
A similar provision was contained in the Victoria Charter formula. Article 51 reads:
An amendment may be made by proclamation under Article 49 or 50 without a resolution of the Senate authorizing the issue of the proclamation if within 90 days of the passage of a resolution by the House of Commons authorizing its issue, the Senate has not passed such a resolution, and at any time after the expiration of the 90 days the House of Commons again passes the resolution. But any period when Parliament is prorogued or dissolved shall not be counted in computing the 90-day period.
This is a matter which will be discussed at length, I am sure, by honourable senators, and by others. Perhaps further clarification can be provided in committee.
Senator Tremblay: May I ask a question for clarification? Does section 44 apply to section 47?
Senator Perrault: Honourable senators, I shall be glad to take that question as notice and provide an answer for the honourable senator. As the honourable senator, of course, is aware, inevitably a number of very complex questions arise, and it would be irresponsible for me to offer personal random opinions
The other evening, the Leader of the Opposition –
Senator Walker: I will not interrupt you except to verify that you do agree that under section 44 there is the power for the House of Commons to abolish the Senate.
Senator Frith: Not alone.
Senator Perrault: Honourable senators, I have been involved in the discussions about the matter, and this is my perception as well. In saying so, I respect Senator Walker’s constitutional expertise. But let us understand that it is not the intent of the government to abolish the second chamber in our parliamentary system. There could be some government in the future, perhaps, with that kind of intent, but I foresee no possibility of the abolition of a second chamber here in the foreseeable future.
Apart from that, there is the possibility that a House of Commons some day, but only with the assent of all the regions of Canada, could undertake an initiative which could sec abolition of the Senate, that is correct.
Senator Frith: Not alone. It cannot do it alone.
Senator Perrault: No, not alone, not unilaterally; it is done with the provinces.
Senator Asselin: That is the ruling of the Supreme Court.
Senator Perrault: Yes, of course, and that is what I have said. The Honourable Senator Walker appears to believe that with the proposed changes the Senate could be unilaterally abolished by the other place. This is not so.
Senator Frith: Not by the House of Commons alone.
Senator Perrault: No, it cannot be done by the House of Commons alone. The process would require the concurrence of the provinces through the Victoria Charter formula or another amending formula involving the provinces.
Senator Walker: We won’t interrupt further. But I don’t think there is any question but that it can be done.
Senator Perrault: May I invite Senator Walker to participate in this debate? I think we will all listen with interest to what he has to say, and I do not say that in any antagonistic spirit at all.
I am glad to see that the Leader of the Opposition has returned to the chamber. There has been some discussion of a number of key points. I am glad to see him back.
On section 21, the Charter of Rights, he asked a question about language rights at the provincial level. “Why does the Charter of Rights, unlike the draft charter tabled by the Prime Minister at the First Ministers’ Conference in September, not include provisions for institutional language rights in Ontario and New Brunswick?” I promised to bring a reply to this question in this debate, and I intend to do so. The draft federal charter tabled at the First Ministers’ Conference in September contained provisions for institutional language rights; that is, the use of English and French in legislative bodies, statutes, courts and in providing services to the public at both the federal and provincial levels of government. Apart from New Brunswick’s support there was little provincial support at the First Ministers’ Conference for inclusion of these provisions. Consequently, when the federal government decided to proceed with the proposed resolution now before Parliament, it was decided to maintain the status quo with respect to institutional language rights at the provincial level. Thus the institutional language rights provisions of the charter are confined to the federal government level. Those are sections 16 to 20 inclusive.
The only reference to institutional language rights at the provincial level is in section 21, which, as noted above, simply preserves the status quo. What this provision means is that the existing constitutional rights respecting the use of English and French in the legislative debates, statutes and courts of Quebec under section 133 of the B.N.A. Act and in Manitoba under section 23 of the Manitoba Act are continued. Provinces such as New Brunswick that may want to entrench some of the
language rights for their populations will be able to do so by an amendment to the Constitution agreed to by the province concerned and the Parliament of Canada-sections 34 and 43 of the Constitution Act, 1980.
“Is the omission from the charter of institutional language rights for Ontario the result of bargaining between Prime Minister Trudeau and Premier Davis?” That was the other question. No. As was indicated earlier, the federal government took a policy decision when deciding to proceed with the proposed resolution not to include in the charter any provision dealing with institutional language rights at the provincial level. This decision was taken without any bargaining with Premier Davis.
The final question asked by the Leader of the Opposition was this: “Since the federal government decided as a matter of policy not to deal in the charter with institutional language rights at the provincial level, why did it then decide to include minority language education rights?” This is rather a different matter. Here the provincial premiers had all agreed at their meeting in Montreal in February 1978 on the principle that each child of the French- or English-speaking minority in a province is entitled to receive his or her education in the primary and secondary schools in the minority language wherever numbers warrant. I may say for my own province of British Columbia that that is the case today. Those minority language rights are being extended in British Columbia, and I am rather proud of that fact. Indeed, Premier Lévesque had offered to enter into reciprocal agreements with other provinces to give effect to this principle. Surely it is better, as the Task Force on Canadian Unity suggested, to entrench this principle in the Constitution where it can be guaranteed, and not leave it simply to provincial reciprocity.
There is a great deal more in this resolution that is deserving of attention and discussion. It is to be hoped that honourable senators will participate in this debate, and I express the personal hope that members of the opposition will participate. I think we would all like to hear from them and in no way will it impede their opportunity to debate later on when the message comes from the other place.
Senator Macquarrie: May I ask a question of the honourable leader before he resumes his seat? He invited us to cast our minds back 50 years or 53 years. He made that reference a couple of times. I did so. Could he tell us if in his exhaustive research on this definitive statement he saw in any time period since R. B. Bennett inaugurated discussions with the provinces any example of a major issue being brought to Westminster by a federal government, through a resolution or otherwise, without prior and full consultation with the provinces and the approval of these provinces? Did he in that 50-year period see an example of the procedure that is being followed now?
Senator Perrault: I respect the honourable senator’s great knowledge as an historian and I hope he will speak in this debate. I think it would be a great service to the country if he were to do so.
There have been numerous meetings with the provincial premiers in an attempt to find ways to patriate this Constitution. There have been exhaustive measures made by various levels of government to attempt to achieve a consensus. It seems to me that at some time a national government must demonstrate the qualities of leadership and say, “Let us frankly admit that we have approached the point of impasse, of deadlocks, of frustration. Now let us show leadership. Let us act in the interests of all Canadians.” Indeed, I have a copy of a speech made a few months ago which I felt had a great deal of merit to it. These are words that I think provide some of the background for the action the government is taking today.
There have been numerous meetings with the provincial premiers in an attempt to find ways to patriate this Constitution. There have been exhaustive measures made by various levels of government to attempt to achieve a consensus. It seems to me that at some time a national government must demonstrate the qualities of leadership and say, “Let us frankly admit that we have approached the point of impasse, of deadlocks, of frustration. Now let us show leadership. Let us act in the interests of all Canadians.” Indeed, I have a copy of a speech made a few months ago which I felt had a great deal of merit to it. These are words that I think provide some of the background for the action the government is taking today.
Who can argue with that?
But if it does, that must not be as the instrument of one government but as the forum for all Canada. Parliament alone among institutions reflects that country and can lift the discussion above the question of what governments need and focus on the question of what the nation needs.
Isn’t that the spirit of this entire resolution? And that is a speech made by the Honourable Joe Clark on June 6 last. The Conservative leader is the person who made that statement. He said that when a need emerges and when it is obvious that certain actions have to be taken on behalf of the entire nation, then Parliament has a responsibility to act. To his great credit, Mr. Clark supported that view last June.
In conclusion, honourable senators, the modernization of the Constitution does not affect the division of powers between different levels of government in Canada. It gives more powers and rights to the people themselves. That is the entire thrust of this submission. The government measures are a starting point; they are a commitment to the renewal of the Constitution, a commitment to review the division of powers, a commitment to change Canadian institutions, a commitment to entrench the human rights which are to be found in the Bill of Rights advanced by the late John Diefenbaker 20 years ago, with the support of people like Senator Walker and even the Leader of the Official Opposition who were great supporters of that Diefenbaker Bill of Rights package.
Senator Flynn: It was not imposed on anybody.
Senator Perrault: The Constitution Committee of the Canadian Bar Association –
Senator Flynn: It was not done unilaterally.
Senator Perrault: – has come out in support of entrenching these human rights in the Constitution. The Premier of Ontario, and men and women of many parties and of no party at all support patriation and entrenchment. As I have mentioned, in June Mr. Clark spoke eloquently of the need for Parliament to act strongly in certain circumstances. Perhaps at this critical time in the life of our nation we need more light
and less heat, more attempt to understand than to be intolerant of contrary views, a greater need to comprehend the greater good. It seems to me, honourable senators, that it would be a highly desirable objective to be able to present a Joint Address to Her Majesty the Queen which has a substantial national consensus to support it. That objective may not be attainable, but it is to be hoped that our work in connection with the resolution shall be imbued with the spirit that sets the national interest far ahead of partisan considerations.
Hon. Eric Cook: Honourable senators, I hope I will avoid rhetoric and not exaggerate in an effort to score debating points. I shall try to be matter of fact and deal with the issues as I sec them without, if at all possible, causing any ill feelings. I would rather remain silent than run the risk of causing further dissension, but I feel it my duty to put before you, as best I can, the position of Newfoundland as I see it.
Unfortunately, some Canadians see Newfoundlanders as people who, suddenly, in 1949, dropped from nowhere to form the population of Canada’s newest province. Some Canadians can also see that Newfoundland benefited greatly from certain fiscal legislation of general application in and throughout Canada. Now they tend to sec us as greedy, inward-looking, strident people who, while we have benefited from being part of Canada, nevertheless refuse to share our possible good fortune should we possess some resources of oil. Newfoundlanders naturally see a somewhat different state of affairs.
First, we did not drop from “nowhere”. On the contrary, we have been around for just as long as any other Canadians. As I sit and listen to senators wax eloquent on what their forefathers did for Canada, I say to myself, “So what!” I have to point out that Newfoundland has had just as long and just as proud a history as the rest of Canada.
Newfoundland’s history began in 1447, nearly 500 years ago. In due course we had to fight England for the right to self-government. We had to fight both France and England over the Newfoundland-France shore question. In both cases we won.
In 1890 there occurred an event which for long poisoned Newfoundland-Canada relations. I quote an excerpt from A. B. Perlin’s A Short History of Newfoundland. On page 36 it is stated:
The other was the negotiation by Robert Bond, Colonial Secretary in the Whiteway Government, of a reciprocal trade agreement with the American Secretary of State, Mr. Blaine. To realize the importance of this to Newfoundland, it must be known that the United States was a very large market for Newfoundland fishery products and that improved tariff arrangements would have given a tremendous lift to the island’s economy. Because of Canada’s protest, the British Government refused to ratify the agreement. This resulted in bitter resentment towards the Dominion which was not quickly allayed
We lost that battle. Perhaps, had we won, Newfoundland would have been much more prosperous over the years, and the United States and Newfoundland would have ended up in some sort of union. That Newfoundland would eventually join the U.S.A. was also the fear of the Right Honourable W. L. Mackenzie King. I will refer to this later.
We also disputed among ourselves-English against Irish, Catholics against Protestants-until a few generations ago, when we reached maturity and decided to live together in peace and harmony. Then we fought very vigorously in the two great wars. As a result of our contribution in the First Great War we obtained dominion status. We became a country equal in status to the United Kingdom, Canada and the other dominions.
I ask you to note this carefully, honourable senators, as 1 shall also return to this point a little later.
This is just a very brief, short history of Newfoundland and Newfoundlanders up to the Great Depression of the 1930s.
In the 1930s Newfoundland’s finances collapsed. This was due in no small part to the amount of money which Newfoundland borrowed during the 1914-1918 war to raise, maintain and keep the Royal Newfoundland Regiment in action. England came to our assistance, and I think it is fair to say we sought to repay in the Second Great War the help which England gave us. In addition to the part played by Newfoundland army, navy and air force volunteers, we freely gave, at the request of England, our land to the U.S.A. to create military bases; and, when we were in a surplus position, we lent Great Britain $40 million free of interest.
Then came 1949, when Newfoundland became part of Canada.
I have never regretted that-at any rate, not until now, when I am beginning to have some doubts. I am now having some stirring of doubt, because I fear this strong central government is shafting Newfoundland, and I do not like it.
When we joined Canada in 1949, a bargain was made and set out in the “Terms of Union” which form part of the BNA Act of 1949. The first point to be made concerns the part of our province known as Labrador. By the treaty made between Canada and Newfoundland it is clearly recognized and confirmed that the Province of Newfoundland consists of the Island of Newfoundland and that part of the mainland known as Labrador. This treaty makes the judgment of the Privy Council awarding Labrador to Newfoundland irrelevant. There is no need whatsoever to have regard to any document other than the Terms of Union.
Let me now remind you of what has happened to Labrador since 1949, since union with Canada.
The first item to mention is the development of Churchill Falls. The Churchill Falls were developed and the power sold to Quebec. Fortunately for Quebec, and unfortunately for Newfoundland, the long-term contract has proved to be a bonanza for Quebec. Quebec is now able to export surplus power to the United States at a profit of some $500 million a year, which will tend to increase rather than decrease.
However, I for one will not utter a word of complaint against Quebec because of this. A contract is a contract and that is the end of the matter. But, just to correct an impression many people now have, the contract was not made by the Government of Newfoundland; it was made by the Churchill Falls Corporation, and it was only a few years ago that the Newfoundland government took over the Churchill Falls Corporation. That is only a small point, but I make it because so many people think that the Newfoundlanders were stupid and the Quebecers so smart. The Arabs made the contract for Quebec when they upped the price of oil. Quebec is in exactly the same position as someone who wins the first prize in the Loto draw. Quebec, in this matter, is just plain lucky, and I both congratulate and envy them.
It is possible, however, to develop further large resources of power in Labrador. To do so would necessitate having transmission lines crossing Quebec, but Quebec will not agree to Newfoundland’s having the right to cross Quebec.
To my mind, Newfoundland should have the power to cross Quebec as part and parcel of Labrador being part of Newfoundland and Newfoundland being part of Canada. That right should not be subject to a veto by Quebec. What then does the Canadian government do? It does not say to Newfoundland, “You cannot have the right.” Such a positive refusal would outrage most Canadians. It does not say, “Yes, you can cross Quebec,” for fear that that would outrage its own Quebec caucus. So the Canadian government puts the issue on a back burner and lets it stay there.
I therefore ask honourable senators, in the name of Newfoundland: Is this honouring the treaty made between Canada and Newfoundland in 1949? Surely it is somewhat contemptuous to tell us, after 31 years as a province, that we had better ask the National Energy Board for a permit to export.
Newfoundland is entitled to a clear-cut, positive and definite declaration from the federal government on this issue, and now. How else can plans be prepared, sales contracted for, and finances arranged? And I feel sure there can be no great engineering problems. A second transmission line through Quebec can surely be no problem for the federal government who intends to double track the railways over the Rockies.
Some Hon. Senators: Hear, hear.
Senator Cook: Justice Minister Chrétien says that the government of Mr. St. Laurent made an unilateral decision to amend the B.N.A. Act in 1949 so that Newfoundland could become part of Canada.
Mr. Chrétien, whom I greatly like and admire, says it is ironic that Newfoundland complains about unilateral action. In 1949 we had no right to complain about any action Canada took. We were not part of Canada. For the record, the fact is that had the Right Honourable Louis St. Laurent asked the provinces to consent, Quebec, I am told would have said “No, not unless Labrador becomes part of Quebec”-in which case, I can assure honourable senators, there would have been no deal, no agreement, no tenth province, and no need to amend the B.N.A. Act in 1949. In fact, there was a deal, there was a treaty and now Newfoundland requests Canada to honour that treaty.
I turn now to the other important matter which causes Newfoundlanders grave concern. As I have pointed out, largely as a result of the contribution of Newfoundland in blood and treasure in the First Great War, Newfoundland became a self-governing dominion-in other words, an independent country.
As a consequence, I for one will go to my grave convinced that in 1979 both legally and morally we owned all rights to offshore oil. Now along comes the Canadian government which coolly and calmly, without any justification, announces that it owns the offshore oil.
The federal authorities seek to create the impression that Newfoundlanders are bad boys because we dare to dispute the will of the federal government. However, it is already clear that this government can be very wrong about its powers and privileges, and rights. The great constitutional lawyers and legal experts of the federal government have already been slapped down by the Supreme Court of Canada when they claimed the power to abolish the Senate. The government’s claim to abolish the Senate, and so amend the Constitution without provincial agreement, did not stand up in law. Perhaps the great constitutional lawyers and legal experts are also wrong when they assert that the federal government owns Newfoundland’s offshore oil.
Because Newfoundland does not swallow holus bolus Mr. Trudeau’s legal opinion, we are said to be inflexible. The kindest reply I can make to Mr. Trudeau is that, in the words of the homely old saying, this is a clear case of “the pot calling the kettle black”.
Honourable senators, at this point I am not discussing how the proceeds which will arise from the development of the oil, if any, should be shared. That will, of course, be a matter for negotiation between the Governrnent of Canada and the Government of Newfoundland. At this point I am speaking purely and simply about the ownership of the oil, and, quite frankly, the attitude of the Canadian government has me deeply worried. Who owns the oil will have a profound effect on the formula which will be used to determine how much Ottawa can take and how much Newfoundland will get.
I will sum up this portion of my remarks as follows: First, in my opinion, Newfoundland has benefited to a remarkable extent because it is a province of Canada. For my part, I acknowledge freely, frankly and with deep gratitude what being a Canadian means to me and other Newfoundlanders. In Newfoundland, young and old alike, the war veterans, and indeed, all Newfoundlanders, have benefited. We have had advances in education and health, much of which would have been beyond our own resources to provide.
Secondly, I protest very firmly the inaction of the Canadian government on the matter of the transmission of power from Labrador. I fear that the Canadian government is not sincerely and honestly accepting its obligations which flow from the
Terms of Union with Newfoundland. These Terms clearly acknowledge the area which comprises the province of Newfoundland. Under our existing Constitution every province has certain rights governing the passage of its resources through any other province.
Thirdly, I protest the action of the federal government whereby it seeks to take from Newfoundland its offshore oil rights.
Please be clear, I am not arguing the matter of sharing. That dispute may be settled in due course. The first issue is who owns the oil, and I feel that both morally and legally the oil belongs to Newfoundland.
I would also point out that the federal government seems to think it has plenty of ways to make sure that it will get its proper share of any revenue which may arise in the future.
These two points bear very directly on the part Newfoundland will be able to play in the future of Canada. If Newfoundland is to receive little or no benefit from the development of its resources in Labrador, and limited benefit from the development of its offshore oil, then I fear she will be condemned to be forever fobbed off with equalization payments.
I am grateful for the advantages we have received up to the present time, but I am fearful that we are being denied or stripped of our resources, thus depleting our ability to eventually pay our way and to contribute our share to the Canada of the future. In view of what to me are the clear facts, this will be illegal, unjust and ungenerous.
I have spoken of what Newfoundland has received. There is still another side. I again quote from A. B. Perlin’s work A Short History of Newfoundland
The popular majority for Confederation was small. But if there had been a general election with union as the issue, 18 seats in a parliament of 28 would have been won by Confederates. The anti-union vote was concentrated in St. John’s and a few districts on the Avalon Peninsula. Yet the majority was small in terms of popular votes. Let a Canadian historian, Bruce Hutchison, in his biography of Mackenzie King, tell the story:
“Despite his dwindling energies, King was quietly completing his final work of statemanship by joining Newfoundland to Canada. He had laid the foundations of the tenth Canadian province during the war by making sure that every contract relating to Newfoundland contained a clause allowing for a future change in the colony’s status. Repeatedly he had indicated Canada’s willingness to receive Newfoundland into Confederation, taking care not to press this invitation and alarm the colony’s antiCanadian elements. He never altered his original judgement that if Newfoundland did not join Canada it would join the United States, that ultimately Confederation itself would be endangered if its eastern gateway were enfiladed by a foreign power.
“The seeds of union thus sown, though observed by few Canadians, had grown steadily. When the Newfoundland people finally faced the issue and voted in favour of joining Canada, King was disappointed by the bare majority for his policy. He had promised to consummate the union only if Newfoundland showed its will by an unmistakable verdict at the polls. Now he wondered if he could regard this close vote as a sufficient mandate.
“After some hesitation he was persuaded by his colleagues, who pointed out that the Newfoundland majority actually was larger than he had ever received in any election save that of 1940. That argument convinced him. The negotiation of union agreement was left to St. Laurent, but it was King who had fulfilled Macdonald’s vision of a nation embracing the northern half of the continent. If King had done nothing else in his life, this achievement would have placed him among Canada’s chief builders. Under him Confederation was completed.”
I come now to the resolution itself, which, for a number of reasons, I regret I cannot support.
By all means let us re-name the B.N.A. Act and bring it to Canada. Everyone agrees with that proposition. The proposed amending formula, however, is a difficult question, not capable of easy solution. If we depart from requiring the agreement of all, then for my part any reasonable formula has to be accepted. However, I would want to hear the considered views of all the provinces on the referendum proposals suggested in the resolution before I would agree with that portion. In this connection it seems hard to understand the reason for, and to justify, Mr. Trudeau’s attempt to impose these deadlines. It almost looks as if he fears to give those who have different views from his an opportunity to express them, in case such views might be so reasonable and sensible he will perhaps have to delay and amend the resolution.
I do not, however, agree with the thrust of the Charter of Rights, which to me gives too much power to the courts. It is not for the courts to legislate.
I quote the following from the judgment of a Canadian case where the judge accepts the words of Viscount Simon, uttered in a House of Lords case.
What does ‘substantial portion’ mean? It is plain that the phrase requires a comparison with the whole rent, and the whole rent means the entire contractual rent payable by the tenant in return for the occupation of the premises together with all the other convenants of the landlord. ‘Substantial’ in this connection is not the same as ‘not unsubstantial’, i.e., just enough to avoid the de minimis principle. One of the primary meanings of the word is equivalent to considerable, solid or big. It is in this sense that we speak of a substantial fortune, a substantial meal, a substantial man, a substantial argument or ground of defence. Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances in each case, the onus being on the landlord. If the judgment of the Court of Appeal in Palser’s case were to be understood as fixing percentages as legal measure, that would be going beyond
the powers of the judiciary. To say that everything over 20 per cent of the whole rent should be regarded as a substantial portion of that rent would be to play the part of a legislator. If Parliament thinks fit to amend the statute by fixing percentages, Parliament will do so. Aristotle long ago pointed out that the degree of precision that is attainable depends on the subject matter. There is no reason for this court to differ from the conclusion reached in these two cases that the portion was not substantial, but this conclusion is justified by the view taken on the facts, not by laying down percentages of general application.
This reasoning was adopted by our own Canadian Judge Sydney Smith, and I quote:
If I were to accede to appellant’s argument, I would be doing precisely what Lord Simon says I must not do, viz., playing the part of a legislator.
I quote this judgment because it clearly illustrates the common law system, and points up the distinction between the legislature and the courts. It is a good system and I can see no reason to turn our backs on it. Legislatures are the proper forum to legislate for their citizens, not courts. Legislatures legislate, courts interpret.
That is the present Canadian system. It is not perfect but it has worked well, and I have not heard any argument which would make me agree to depart from it, and to sail out into the uncharted seas where only appointed judges may propose solutions and give opinions, which in the case of their proposed solutions, they have no responsibility to implement, and in the case of their opinions, they have no obligation to defend.
I accept without reservation the principle of language rights, but I cannot accept the double standard outlined in sections 20 and 23. An honourable member in the other place expressed my views on this clearly. He pointed out that section 20 refers to the two official languages in federal institutions and Parliament.
Section 20 provides that Parliament will determine what the numbers are, whether numbers are warranted for bilingual schools, whether numbers are warranted for French in the nine provinces that are predominantly English, whether numbers are warranted for English in Quebec.
Then section 23 provides for schools for anglophones in Quebec and francophones outside Quebec. Here the question of where numbers are warranted is not left to the provinces, the provincial legislatures, or the people elected-and education is provincial-but to the courts. This, the honourable member said, introduces a double standard in federalism. He does not accept this and I agree with him. I do not accept it either.
This is because, first, as I have said, in my opinion it is not the function of the courts to legislate; second, the sections create a double standard-one for the federal Parliament and one for the provincial legislatures; and third, section 23 will surely result in a nightmare of litigation in every province. Extremists of every kind, funded no doubt with federal funds, will be suing every provincial government with God knows how many different judgments.
There will be judgments covering all aspects of education about which and to which Parliament has not ever applied its collective will and mind, and in respect of which the provincial legislatures who are responsible for education will henceforth have no input. This provision will create much more ill will than it will cure. It will keep Canadians more apart and more quarrelsome than ever before.
Honourable senators, I have kept you long enough. I trust I have made it clear that I do not agree with some portions of the resolution itself and that further, and more importantly, I am not happy with the federal government’s treatment of my province under the provisions of the present Constitution.
“He who seeks equity must come with clean hands” is an old legal maxim. To me, as a representative of the Province of Newfoundland, the federal government-not the Canadian people but the federal government-comes with grasping hands, and its talk of rights has a hollow ring. I will not, therefore, support the government when the resolution comes before us.
Senator Walker: Honourable senators, that was a marvellous speech. I just want to correct a misapprehension. I shall be only thirty seconds.
Under section 44, the House of Commons can legislate the Senate out of existence but, of course, this is subject to section 41(1) as to the resolutions of a majority of the provinces. Senator Frith, of course, corrected that himself.
On motion of Senator Frith, debate adjourned.
The Senate adjourned until tomorrow at 2 p.m.