Document Information

Date: 1980-10-23
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1980 at 942-952.
Other formats: Click here to view the original document (PDF).

[Page 942]

THE CONSTITUTION

PROPOSED RESOLUTION FOR A JOINT ADDRESS TO HER MAJESTY THE QUEEN—DEBATE CONTINUED

The Senate resumed from yesterday the debate on the inquiry of the Honourable Senator Perrault calling 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 Monday, October 6, 1980.

Hon. H. A. Olson (Minister of State for Economic Development): Honourable senators, I want to make a few comments on the inquiry that is before the Senate respecting the suggested amendments to the Canadian Constitution.

At the beginning I want to outline some of my own views as to why this resolution is necessary, and as to the manner in which it is being brought before this house, which will presumably be by way of a message from the House of Commons asking us to concur in the establishment of a special joint committee to examine the resolution and to report to both houses by a certain date.

A number of questions have been raised in the debate here, in the other place, and, indeed, in the public domain, if I may call it that, because of the speculation of a number of premiers of various provinces and other commentators. One of the questions that has been asked from time to time is: Why at this time? In reply to that you have to ask yourself another obvious question: If not at this time, then when? When you try to answer that question you can go back over 53 years of attempts to get aIl of the l1 governments in Canada together-and for part of that time there were only 10 governments-to try to come to a unanimous agreement as to what ought to be in the Canadian Constitution; indeed, as to whether the Canadian Constitution ought to be domiciled in Canada.

Honourable senators, i do not have any problem with the latter question. i believe our Constitution ought to be domiciled in Canada. For ail the attempts that have been made by several governments, and by a long list of very competent personalities, to try and reach that agreement, the fact is that they have been unable to do so for one reason or another. Unfortunately, the reasons are not the same, and what is still more unfortunate is that the objections sometimes come from different provinces for different reasons.

Hon. Jacques Flynn (Leader of the Opposition): May i ask a question at this point?

Senator Olson: Well, yes, I think you could, but perhaps at the end of my speech.

Senator Flynn: It is pertinent to what you are saying now. It resides only in part in Westminster. Why does it reside there only in part?

Senator Olson: Well, honourable senators, the Leader of the Opposition says “partly resides”-

Senator Flynn: What about section 91.1?

Senator Olson: The fact is that it is partly residing in Westminster, which is not in this country. My honourable friend knows that.

Senator Flynn: Why is that part there?

Senator Olson: That part is there, i suppose, for a variety of reasons, and in its simplest terms the reason is that that is where it was put in 1867, when Canada became a country. Why it is still there is equally simple, and that is that all of the governments of Canada have been unable to reach an agree

reach an agreeSENATE DEBATES October 23, 1980
October 23, 1980 SENATE DEBATES
ment over the years to bring it to this country. There is nothing
complicated about that.
0 (1540)
Senator Flynn: That part of section 91.1 was brought home
in 1949, but why was the rest left in Westminster under
section 7 of the Statute of Westminster? Why? Because the
provinces, not the federal government, asked for that.
Senator Oison: Well, obviously, when you try to answer the
question I posed a few moments ago, it seems unfortunate that
everyone agrees that the Constitution ought to be patriatedSenator Flynn: Well!
Senator Oison: There is no one I know of, including the
Leader of the Opposition, who is prepared to rise and state
without equivocation that the Constitution of this country
ought to be in another country’s statutes. Of course, he would
not say that.
Senator Flynn: I will say that.
Senator Oison: Neither will any premier of any province in
CanadaSenator Flynn: I will say that.
Senator Oison: -object to the fact that Canadians ought
now, after all this effort, to have their own Constitution in
their own country.
Senator Flynn: I would agree that the provinces should ask,
but not Ottawa.
Senator Oison: Well, let us go to that part of the question.
My honourable friend knows that one out of eleven governments, in the attempts that have been made over these years,
has prevented that from happening. He has been involved in
these matters long enough to know that on many of those
occasions it has been one single province, although not always
the same province, that has raised objection so that it just
simply did not happen. That is why this is the time.
There is another reason, honourable senators, why it is
particularly appropriate for the federal government, indeed,
for both houses of the federal Parliament, to take their
responsibilitySenator Flynn: It is not ours.
Senator Oison: -and that is that there has probably never
been a time in Canadian history when the Constitution has
been debated in the public realm for so long or so exhaustively.
We believe that the people of Canada, the citizens, the electorate, or however you want to describe them, have now watched
a discussion taking place all summer with the continuing
committee on the Constitution, the ministers from all governments and, indeed, in 20 or so hours of live television time.
There has probably never been a time when there has been as
much understanding as there is now of what is involved in that
question. I sincerely believe that the people of this country
have reached the stage where they want their Constitution in
Canada.
As a matter of fact, it is interesting to hear such arguments
as, “Yes, we want the Constitution patriated. We want the
Constitution in this country, but somehow it is the wrong time
and somehow it is the wrong procedure for bringing it here.”
Surely, even the Leader of the Opposition, at some point in
time, has to call a spade a spade and not something else.
If everybody agrees that the Constitution ought to be in
Canada, as I do, and if everybody agrees that we should have
some basis for bringing that Constitution here and for amending it in the future by a formula that requires agreement
somewhere short of unanimity-because that has always
stopped it before-then, surely, there is no more appropriate
time than now, in light of that general level of understanding
of what is involved in this constitutional matter which I
suggest is higher in the public mind than it has ever been
before.
Senator Flynn: I doubt it very much.
Senator Oison: Well, the Honourable Leader of the Opposition says he doubts it, but he is also unwilling to say that he
does not believe the Constitution should be in this country.
Senator Flynn: Oh, I do.
Senator Oison: Then he agrees with the objective.
Senator Flynn: I merely want to mind my own business.
Hon. Joseph-Philippe Guay: Keep quiet.
Senator Oison: So the Honourable Leader of the Opposition
agrees.
Senator Flynn: I think Senator Guay has a point of order to
raise.
Senator Guay: The other night I was given a lesson by the
Leader of the Opposition on keeping quiet when someone else
is speaking. I only wish he would practise what he preaches.
Senator Flynn: I agree, but on the point of order raised by
Senator Guay, may I suggest that, if someone has to complain,
it should be Senator Olson and not Senator Guay.
Senator Guay: That is why I say I always listen to you,
when you make sense.
Senator Flynn: Continue. You do that well, at least.
Senator Oison: I can see, honourable senators, that we are
having the same high level of agreement on the point of order
as we have been having on the point that the Constitution
ought to be in Canada. I am pleased at that.
Honourable senators, the second part of the resolution that
is before us, deals with some fundamental rights of Canadian
citizens. The strange part about this is that everyone agrees
that every single one of the rights that are spelled out in the
proposed amendments to the Constitution is a right that
Canadian citizens are entitled to have. They are rights that
cannot be violated or abridged by any government. I have not
heard any disagreement with that, even from those people who
object to bringing home the Constitution or to whatever the
government is doing. Not even they have selected any of those
October 23, 1980 SENATE DEBATES
SENATE DEBATES October23, 1980
rights, saying, “We disagree with the citizens having this
right.”
I will not go over these rights in detail, because I know my
honourable friend opposite has read every one of them carefully. But does he disagree with the guarantee of rights and
freedoms? Does he disagree with Canadian citizens having
those fundamental freedoms that are spelled out in clause 2?
Senator Flynn: Freedom of speech!
Senator Oison: I don’t think so. i do not think the leader
would disagree with the democratic rights of citizens that are
contained here. They are enshrined or entrenched in our
Constitution so that we have the right to vote, to select our
government. That is what is in here. He does not disagree with
that.
Senator Flynn: We have always had those rights.
Senator Oison: I am sure he does not disagree that there
should be a limited duration of any legislative body. i am sure
he does not disagree with that either.
Senator Flynn: I must say it is badly worded.
Senator Oison: At any rate, he does not disagree with the
principle involved. So I have to ask myself, “Does he disagree
with some rights Canadian citizens have, for instance, to enjoy
the entire country?”
Senator Flynn: Well, you are putting a question to me.
Senator Oison: No, i am not.
Senator Flynn: In any event, these rights are already in the
Constitution. They are already entrenched there. So what are
you adding?
Senator Oison: Honourable senators, these rights are not in
the present B.N.A. Act. They are not.
Senator Flynn: Certainly, they are. The duration of Parliament is in the Constitution. You could not change that. It is in
the Constitution. Try to study it.
Senator Oison: If my honourable friend wants to nitpick
about these things, i believe it is fair to say that there is not a
limitation in the Constitution on the duration of legislative
bodies that applies to all the provincial legislatures. They write
some of their own constitutions.
Senator Flynn: It is in the Constitution. It is there.
Senator Oison: Well, if it is there, I think it is a good thing
that it is there, and it ought to be in the Canadian Constitution, too.
Senator Flynn: It is!
Senator Oison: Then we get to mobility rights. i believe that
the citizens of Canada have the right, or ought to have the
right, to enter, to remain and to leave Canada. I believe that
every citizen of Canada ought to have the right to move and to
take up residence in any part of Canada.
Senator Flynn: They have that right now.
[Senator Oison.]
Senator Oison: But this says “any province.” i also believe
that every Canadian ought to have the right to earn a livelihood in any province, and that has been challenged by some of
the provinces. They have set up some rules that limit the right
of Canadian citizens to move anywhere, and to seek gainful
employment, in this country.
e (1550)
Hon. G. . Smith: Pursuant to the Constitution.
Senator Oison: Well, pursuant to the Constitution. This is a
right that is going to be entrenched in the Constitution, and
obviously has not been either severe or strict enough to be
applied.
None of the honourable gentlemen opposite wants to argue
that Canadian citizens should not have that right. It can be
seen that they are not willing to do that.
Senator Smith: Who says they are not willing to do that?
Senator Oison: Are you willing to argue that Canadian
citizens should not have the right to seek employment anywhere in this country? Of course not.
Senator Smith: You wait and see.
Senator Flynn: You want to impose that on the provinces.
Hon. Royce Frith (Deputy Leader of the Government):
Perhaps we should wait and sec what the speaker has to say
about that.
Senator Oison: Well, we should wait and sec what they have
to say about it, but 1 just don’t believe, honourable senators,
that the opposition is going to say that they are opposed to
Canadians being able to move anywhere they like in this
countrySenator Flynn: i didn’t say that.
Senator Oison: -and to seek gainful employment wherever
they like in this country. That is a fundamental freedom that i
believe every Canadian citizen is entitled to. That’s what’s
here.
i don’t think anybody is particularly opposed to some of the
other legal rights that are spelled out in this matter. There are
some, for example, respecting non-discrimination, which i
endorse completely, but I realize that it will take some time for
all of the provinces and, indeed, perhaps even the federal
Parliament, to search out and amend some of the statutes that
are on the books now so that those non-discrimination rights
can be taken out. So there is a provision that that would not
become applicable for three years, in order to provide time to
make that search and to make the amendments.
Then there are the official languages of Canada.
Senator Flynn: Then there is no urgency.
Senator Oison: Weil, the honourable Leader of the Opposition wants to make a lot of contributions to my speech. I am
not discouraging that-I think he should go ahead-but I
would like him also to participate in this debate so that we can
hear what his views are. So far, despite its having been called
every day, he has refrained. To use another word, he has so far
SENATE DEBATES October 23, 1980
SENATE DEBATES
boycotted this debate, and I think that that is unfortunate
because I know he would make a great contribution. I also
believe he is not doing as good a service to Canada by
refraining from participating in this debate.
Senator Flynn: Don’t you worry about that.
Senator Oison: I remember very clearly that the members
opposite were asking for some opportunity to participate in the
discussion about the matters that are in that resolution.
Senator Flynn: No, not accurate.
Senator Oison: And then, when an opportunity is provided,
they refrain from participating.
Senator Flynn: You are mistaken.
Senator Oison: That I don’t understand.
Senator Smith: You don’t understand it because it isn’t true.
Senator Oison: Oh, no, it is true all right.
Senator Smith: It is not true.
Senator Frith: It’s the kind of truth that hurts.
Senator Oison: I would like to turn to another aspect of this,
honourable senators, and that is that I think we have a
responsibility in this chamber to examine just what it is we are
protecting. Why do we needSenator Smith: Or giving.
Senator Oison: -this kind of action taken by the federal
Parliament of Canada which, of course, includes both houses?
And that is very simple to me.
Senator Flynn: It has to be.
Senator Oison: I believe there is some value to Canadian
citizenship. As a matter of fact, when I compare the values
that we have-and I could spell them out, if you like-such as
the respect for human beings and for human dignity, and the
respect for our structure of law and order which, even though
it may not be perfect, is, in my view, better than that of any
other country in the world.
Senator Flynn: That’s why we don’t need that.
Senator Oison: And that is why, when we find a trend
towards restricting the rights of Canadian citizenship along
provincial boundaries, we have a responsibility to stop and to
reverse that trend.
You can argue that it may not be serious yet, but there are
some trends that are extremely serious to me. One of them we
have just talked about, and that is the trend towards restricting the right of a Canadian citizen to seek gainful employment
anywhere he chooses in this country. I don’t like that trend.
There are some other restrictions with respect to investment
and the ownership of land, for example, in more than one part
of this country. I think that there ought to be some rules
perhaps on the use of some of those assets, but I tell you very
frankly that I do not accept that those rights ought to be
confined to residents within a province. For exampleSenator Flynn: You are changing the Constitution in this
respect, aren’t you, because there is a decision of the Supreme
Court with respect to the restrictions in Prince Edward Island
with regard to ownership of land. It has been declared intra
vires of the legislation of Prince Edward Island.
Senator Frith: Order.
Senator Flynn: I am not talking to you.
Senator Oison: I was talking about some of the trends that
are taking place in this country in the way of setting up
different rules for different people because they happen to live
within a provincial boundary.
Hon. Loweli Murray: That is not covered by your
resolution.
Senator Oison: It is covered in my concern over the trends
that are taking place in this country.
Senator Murray: It is not in your resolution.
Hon. Duff Roblin: No, it is not.
Senator Oison: Take it as you like. We are demonstrating
that we are going to set up some rights that belong to all
Canadian citizens no matter where they live.
Senator Smith: No matter whom they take them from.
Senator Oison: Oh, no.
Senator Smith: Oh, yes.
Senator Oison: Rights don’t necessarily restrict somebody
else. Rights are something that cannot be violated by any
government in this country.
Senator Smith: You are trying to take away from the
provinces the jurisdiction and authority they now have under
the Constitution.
Senator Frith: If we could hear one full sentence before you
bootleg your way into this debate.
Senator Flynn: If it makes sense, I agree.
Senator Frith: We are listening to a lot that doesn’t make
sense from the other side.
Senator Oison: Well, I guess some of the freedoms in this
country, the Honourable Leader of the Opposition may agree,
include the right to be wrong. That is why we listen to some of
the garbage that comes from the other side of the house in
Question Period every day. We agree that you have that right.
Senator Flynn: That’s certainly big of you.
Senator Oison: I am sure the Leader of the Opposition, even
if he doesn’t agree with my views, will respect my right to state
them. I am sure he would be one of the greatest champions in
defending my right to do that, but along with defending that
right he should respect the fact that both of us can’t speak at
the same time.
Senator Smith: That is not impossible.
Senator Flynn: Three of us. You have Senator Guay, too.
7
October 23, 1980
SENATE DEBATES October 23. 1980
Senator Oison: Honourable senators, I don’t think there are
any fundamental differences in the fact that there ought to be
some bill of rights that guarantees Canadian citizens those
rights.
Hon. Raymond J. Perrault (Leader of the Government):
Hear, hear.
Senator Oison: So now we have come to the point where we
agree that the Constitution ought to be in Canada. We agree
that citizens ought to have some rights no matter where they
live in this country. We come to the next question, and that is:
Should we have in the Constitution the equalization requirement? i don’t think honourable senators opposite are going to
argue against that being a fundamental right of Canadians. It
isn’t changing very much because it is practised now, but i
think it ought to be in the Constitution so that it is known that
that is part of the basic law of this country.
Senator Smith: Which can’t be enforced.
* (1600)
Senator Oison: i hope Senator Smith has got some notes
some place so that he can make all these points himself rather
than inserting all these comments into my speech, because I
would like to listen to him make an intelligent speech, which I
know he is capable of doing, in this debate. So far honourable
senators opposite have refrained or boycotted it, as ifSenator Flynn: We are trying to help you.
Senator Oison: -they are afraid to say what they think
except by interrupting somebody else. Anyway, i don’t mind
that.
Senator Smith: It is no good having all this shadow boxing
on a thing like this that we have before us now. Wait until the
resolution comes.
Senator Perrault: Make your own speech.
Senator Oison: Now, honourable senators, we get to the
next major part of the resolution that will be before us, which
is the matter of an amending formula. Here I am sure
honourable senators opposite will agree that for the first two
years there will be no amendments to the Constitution of
Canada except by the unanimous consent of all eleven governments. If that is not well understood by my friends opposite i
could read them chapter and verse here to point it out, but i
think it is, so that is clear. By the way, I should also point out,
in case they haven’t noticed, there is a requirement that for
those two years there shall be a conference called by the Prime
Minister of this country respecting that matter. It says very
clearly in section 32:
Until Part V comes into force, a constitutional conference composed of the Prime Minister of Canada and the
first ministers of the provinces shall be convened by the
Prime Minister of Canada at least once in every year
unless, in any year, a majority of those composing the
conference decide that it shall not be held.
Obviously it would take six governments to decide that it
should not be held, otherwise it will be held. What that means
is that there are going to be at least two more attempts-
[Snaim I- nn]
Senator Flynn: No.
Senator Oison: -to come to an agreement on an amending
formula to the Canadian Constitution that would have a
requirement of something less than unanimity, otherwise the
unanimity provision prevails for those two years. I think we
have to agree that we cannot lock ourselves into the situation
where there can never be any further changes or amendments
to the Constitution with something less than unanimity for
ever. i am sure that after the last 53 years, particularly the last
eleven years or so, when very sincere attempts have been made
to find an amending formula, we cannot lock ourselves into a
unanimity requirement for all time. I am sure everybody will
agree that is a reasonable proposition.
What it says is that if no agreement is reached in those two
years, then we go into the next section, which is what happens
in the following two years to try to find an amending formula
to which all eleven governments could agree, but at the end of
that period-that is four years later-it will be referred to the
people of Canada. I believe that that is the essence of democratic procedure, to refer it to the people of this country if
their governments cannot reach an agreement, so there are
certain sections to deal with that. In Part IV there is an
interim amending procedure and rules for its replacement.
You can go through section 38, for example, and so on.
Part V deals with the procedure for amending the Constitution in Canada. Section 41(1) is the general procedure. i could
read it all, but i am sure honourable senators know that is the
amending formula known as the Victoria Charter. Let us
examine what that means for a moment. That means that
there has to be, first of all, a resolution of the Parliament of
Canada, both houses, plus a majority in all four regions of
Canada-Ontario, Quebec, at least two of the four Atlantic
provinces with more than 50 per cent of the population in
those provinces, and at least two of the four western provinces,
constituting a majority in those four provinces. It isn’t one or
the other. It means a majority in all the regions, plus the
federal government-not the federal government; it is the
federal Parliament, and there is obviously a difference, a very
important difference. It does not seem to me that that is an
unreasonable requirement.
There will be those who will still argue that it ought to be
unanimous. i think, quite properly, we have come to the
conclusion that there has to be sornething short of unanimity,
but in my view this charter is not imposing anything on any
province except those who still want unanimity, so that they
can hold up all eleven governments. I think it is a reasonable
proposal that amendments to the Canadian Constitution can
be made when they are agreed to by a majority in each of the
four regions of this country. That is what it says, and any other
interpretation that is being put on it is just not valid, because
that is what it says here.
By the way, there was a point in time, in 1971 for example,
when all eleven governments did agree that that was a satisfactory amending formula, but then it broke down. I don’t want
to go back over the reasons, but it did, in fact, break down.
SENATE DEBATES October 23, 1980
October 23, 1980 SENATE DEBATES
Senator Murray: Just for the record I want to ask the
ministerSenator Oison: I wonder if you could hold your questions
until after my speech is over. I will try to answer them then.
Senator Murray: It is not a provocative question.
Senator Oison: I don’t mind if it is a provocative question,
but it seems to me that if I am to put the argument in its right
scenarioSenator Murray: That is why I am asking the question.
Senator Oison: -perhaps we ought to leave the questions
until after my speech is over, and I will try not to keep you too
long.
Senator Murray: I wanted to do that.
Senator Oison: I know. I have been around for a while. 1
know what honourable senators opposite are trying to do, and I
hope they will try to do that when they are speaking too,
because their views, their honest, sincere views, without any
political overtones, really ought to be in the context of this
debate, so I hope it is coming.
Senator Flynn: Don’t worry about that.
Senator Oison: Then we get on to other things. One that is
important here is that if it does, in fact, require a referendum
to set down the amending formula in this Constitution, it will
be the Victoria Charter or another amending formula, as yet
unknown, but supported by eight of the ten provinces and 80
per cent of the population.
Senator Murray: The referendum question would have to
pass by a 50 per cent plus one majority. Is that not correct?
Senator Oison: The honourable senator is throwing in
“buts” there. The question in the referendum will be one or the
other.
Senator Murray: The question would have to pass by a 50
plus one majority.
Senator Oison: Yes, that’s right, but it is what is put in the
question that is also important, and in my mind there is no
question but that the Victoria amending formula does in fact
carry the requirement of a very substantially higher than
majority support from the provinces and the people. Obviously
if eight of the ten provinces with 80 per cent of the population
come along with another formula, I am sure my honourable
friend will agree with me when I assume that that amending
formula that would be put in the referendum would also
contain a very substantial majority, considerably more than a
simple majority, of provincial support for any amending formula in the future, because that is what it says.
* (1610)
Senator Flynn: It could be subjected to serious distortions.
Senator Oison: My friends opposite seem to be afraid to let
the people express themselves.
Senator Perrault: Shame!
Senator Oison: They seem to be afraid of a referendum.
They are afraid that the people might select some amending
formula which somehow would be an irresponsible act.
Senator Flynn: By an emperor like the one we have now.
Senator Oison: I believe that if one of those questions is put
to the people of this country they will make an intelligent
decision. I am not afraid of having the people vote.
I did not want to make a long speech here today, but the
opposition unfortunately are lengthening it.
Senator Flynn: We wanted you to make a substantial
speech.
Senator Oison: It is a substantial speech.
There is some concern, honourable senators, about section
44 which provides for a suspensive veto by the Senate. I think
honourable senators ought to read that section very carefully.
Senator Flynn: Have you?
Senator Oison: I would like them to.
Senator Flynn: I think I read it before you did.
Senator Oison: I do not think you did, but you may have
read it quite a few times since.
That section states:
An amendment to the Constitution of Canada may be
made by proclamation under subsection 41(1) or section
43 without a resolution of the Senate authorizing the issue
of the proclamationThen it makes mention of the 90-day provision and the
House of Commons having to pass the resolution. I will not
deal with that again. However, what I think is important here
is that this suspensive veto applies to subsection 41(1) and to
section 43 only. It says that. There is no more in there. It
mentions subsection 41(1) and section 43 only.
Senator Murray: Give us your argument in favour of that.
Senator Oison: Let us deal with section 43 to begin with.
Section 43 states, “An amendment to the Constitution . . .”
and so on. Section 43 provides a rule whereby amendments
that would not apply to all provinces, such as terms of union
with certain provinces, could be made upon authorization
by$Othe Senate, the House of Commons and the provinces
concerned.
Senator Flynn: Sure.
Senator Oison: That means that if you are going to have any
amendment to section 43 which deals only with constitutional
matters that apply to that province, you must have the support
of the legislative assembly of each province to which the
amendment applies-that is clear.
Senator Flynn: Come to section 41.
Senator Oison: It is clear what section 43 says. Why would
any senator object? Why would they want to insert a veto that
is not only a suspensive veto to a resolution or an amendment
that applies to their province because that is absolutely and
unequivocally required. If they are in favour of it, and the
October 23, 1980 SENATE DEBATES
SENATE DEBATES cor2,18
House of Commons is in favour of it, why would the Senate
want a continuing veto? I cannot see the logic of that.
We will dismiss section 43 since you are not concerned
about that.
Senator Flynn: No, no. I should like to put a hypothetical
case to my good friend.
Hon. Maurice Lamontagne: Ask permission.
Senator Oison: Perhaps at the end of the speech.
Senator Flynn: You have a protector there.
Senator Oison: I do not see that there is any logic in
suggesting that the Senate is somehow going to superimpose
its opinion over the House of Commons and the legislature of a
province who have agreed to the amendment.
Senator Flynn: I was going to give you a case in point.
Senator Oison: I do not think we have the right to stand in
the way when all the provinces affected by the amendment
have agreed with the resolution of the legislative assembliesthat is, if you have any respect for the democratic process.
Certainly the democratic process is going to be exercised
within those provinces.
Senator Flynn: Let us take an example of a legislature
where the government has no mandate-for instance, the
Quebec legislature. Mr. Lévesque would approve of an amendment, but would have no real authority, since it passes by one
vote in the legislature. Do you not think that the Senate should
be able to intervene in a case like that?
Senator Oison: I must remind my honourable friend that it
is not only a legislature that can do that, it takes an amendment of the House of Commons, the Senate and the
legislature.
Senator Flynn: Agreed.
Senator Oison: What is left in section 44 is the requirement
for a suspensive veto under subsection 41(1) only. I have heard
all kinds of interpretations around the country that it is
something greater than that. It is not greater than that;
subsection 41(1) or section 43 is all that is contained in there.
What is subsection 41(1)? Subsection 41(1) is the amending
formula under the Victoria Charter.
Senator Flynn: There is no limitation.
Senator Oison: There is a limitation-the limitation is
subsection 41(1) or section 43.
Senator Flynn: Not on the kind of amendment.
Senator Oison: If you want to put it around the other way, it
says that there shall be no suspensive veto-there would be a
veto absolute for any other purpose other than section 43 of
subsection 41(1).
Senator Flynn: Subsection 41(1) covers the whole country.
Senator Oison: Subsection 41(l) is the amending formula
that may be in place if and when Part V comes into effect.
That is clear.
[Senator Oison.
Senator Flynn: But it is any amendment.
Senator Frith: But section 42 is another amending formula.
Senator Flynn: Subsection 41(1) covers the whole territory.
Senator Frith: It covers everything so far as subject is
concerned.
Senator Flynn: It could abolish the Senate; it could abolish
the provinces.
Senator Frith: With their consent.
Senator Oison: The Honourable Leader of the Opposition
seems to be right in the middle of this debate now. I am glad
to see that because before he did not participate.
Section 42 is the amendment to the Constitution that may
come into being if, indeed, there is another formula. It is the
one that might come into being as a result of eight of the ten
provinces-that is, 80 per cent of the population-putting it
into the question as a choice in the referendum. Then the veto
does not apply.
Senator Tremblay: Are you speaking of section 42?
Senator Oison: Section 42 is what may turn out to be some
kind of substitution for section 41 when that other part comes
into play.
Senator Flynn: If you want to abolish the Senate, under
section 41 can you do it?
Senator Oison: Honourable senators, those are the kinds of
extremes that my honourable friend would like to inject into
this debate. I should like to put this question to him: If the
Victoria amending formula were to apply, that means that the
House of Commons would pass a resolution to amend the
Constitution of Canada by either abolishing or very significantly changing the Senate. If a majority in all four regions of
the country supported that resolution, would he want to sit
here? Would he want to sit here if that sentiment came from
all those places?
* (1620)
Senator Flynn: No, I would not.
Senator Oison: Then, why do you object to it?
Senator Flynn: Not if it is a very simple majority resulting
from a predominantly “yes” vote from a given region. If, for
example, the population of the province of Alberta voted 90
per cent against, the Senate should be able to delay the action
for more than three months.
Senator Lamontagne: Order.
Senator Flynn: If you could have Senator Lamontagne mind
his own business occasionally, that would be very helpful.
[Translation]
Senator Lamontagne: Honourable senators, I believe that
one of the rules of this house is that before interrupting an
honourable senator one should have the decency of asking his
or her permission.
SENATE DEBATES
October 23, 1980
October23. 1980 SENATE DEBATES
[English]
Senator Tremblay: i wonder if I might have the permission
of the honourable senator to ask a question, then.
Senator Oison: Yes, you have my permission to ask as many
questions as you wish as soon as I finish my speech. I am not
going to be much longer.
Senator Flynn: He put the question to me without asking
permission.
Senator Oison: The Leader of the Opposition is the closest
one to me across the aisle, and that is why I direct some of
these questions to him, but I am really raising these questions
so that honourable senators generally can ask themselves
whether they have a correct interpretation of it.
The question was whether you really believe the Senate
should somehow be able to stand in the way if the Victoria
amending formula has been applied and the condition of a
majority in each of the four regions of Canada has been met,
plus a resolution having passed the House of Commons twice.
That is an important question. In those circumstances, do you
want a situation where the Senate can stand in the way of that
kind of public support for an amendment to the Constitution?
Senator Smith: That is not the point at ail.
Senator Oison: I do not believe we should.
Senator Smith: That is not the point at all. The point is that
it is being done to evade and avoid the decision of the Supreme
Court of Canada, and the Parliament of a foreign nation is
being asked to do it.
Senator Oison: No, I do not agree with that.
Senator Smith: Of course; you do not agree with anything
that makes sense.
Senator Oison: I have always respected Senator Smith’s
views and his intelligence and his contribution to this debateSenator Flynn: And rightly so.
Senator Oison: I am afraid that when he says that I never
agree with anything that makes sense, he is really lowering the
credibility that I have given him up to this point, and that is
unfortunate.
Senator Smith: It does not worry me much, if that is the
point you are making.
Senator Oison: No, but it does worry me. The position that
the Senate is going to take with respect to standing in the way
of an overwhelming majority of the public of this country does
worry me very greatly, and that is what we have to ask
ourselves.
Senator Smith: That is not the point at all.
Senator Oison: Well, it is the point as far as I am concerned.
You may disagree, and I would be very happy to listen to you
outline your arguments. Up to this point, honourable senators
across the way have chosen not to outline their arguments. We
just have to imagine some of these things. I hope you will get
into the debate.
Senator Smith: Well, use your imagination.
Senator Oison: Honourable senators, I think we ought to
pass the motion that will come to this houseSenator Flynn: Are you sure.
Senator Oison: -within a reasonable period of time. It may
be that once we get into the debate on the motion and the
resolution, honourable senators will find some weaknesses that
ought to be corrected once it gets to committee, but it seems to
me that we ought to send it to the committee so that there can
be a detailed examination and so that reasoned arguments on
amendments that ought to be made can at least be presented
to the committee.
I have no doubt in my mind that the nominations to that
committee from both sides of this house, as well as the
nominations from the other place, will be of good men and
women who will try to do the best possible task of examining
in detail what will be in that package, and to make amendments where they see weaknesses. We do not claim that there
will not be some things that ought to be corrected. I think we
would be discharging our responsibility in making any necessary amendments.
I can tell my honourable friends opposite that, at the end of
a four-year period or so, I would have no problem in asking the
people to make a selection because the governments have not
been able to agree over that period of time. That, to me, is the
essence of the democratic process, and we in this chamber
have an obligation to support it.
Senator Murray: Since the minister invited me to put a
question that was on my mind earlier at this stage, I wonder
whether he would now accept a brief question.
Earlier in his speech, the minister expressed his concern
about certain developments in various parts of the country
which he felt were unduly restraining interprovincial mobility,
and he alluded to the need for the entrenchment of mobility
rights. As I understand it, those rights are not included in the
present resolution, and I simply want to ask him whether he is
arguing that they ought to be.
Senator Oison: I have to disagree with my honourable
friend. Section 6 of the proposed resolution contains some
mobility rights.
Senator Murray: I was referring-and the minister’s reference was to some of the developments in the country-to the
so-called economic union, provision for which is not included
in the present resolution. Section 6 reads:
6(1) Every citizen of Canada has the right to enter,
remain in and leave Canada.
(2) Every citizen of Canada and every person who has the
status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province;
and
(b) to pursue the gaining of a livelihood in any
province.
October 23, 1980 SENATE DEBATES
SENATE DEBATES October 23, 1980
1 understood my honourable friend to be referring to the
situation, for example, with regard to the B.C. government’s
action against the attempted takeover of MacMillan Bloedel a
few years ago in British Columbia, and situations of that kind
that it was proposed might be corrected by some provisions
relating to the economic union which are not in the present
resolution. My question is whether he is arguing that those
provisions should be included.
Senator Oison: Honourable senators, I am not arguing that
that particular circumstance could have been deait with
through the provisions that are in the resolution. I was expressing my concern about the number of limitations on the rights
of Canadian citizens that are building up in several parts of
this country that do, in fact, put a limitation on the right of a
Canadian to do things. There are, for example, as my honourable friend knows, some limitations on who can buy land in
some provinces.
Senator Flynn: There is nothing there about that.
Senator Oison: No, it is not in here. My honourable friends
opposite will have to remember that in that portion of my
remarks-I have said it three times now, and I will say it a
fourth, if it is necessary-I was expressing my concern about
some trends in this regard. It is perfectly clear that the matters
dealing with the economic union of Canada are not in this
resolution.
Senator Murray: Capital, goods and services.
Senator Oison: Yes, and a whole lot of other things. The
federal government and the Prime Minister have been perfectly clear on that. The government has not put in the resolution
all of the 12 items that it wanted to negotiate with the
provinces. The resolution is not full, complete and comprehensive, but we are still concerned about them. We are concerned
about some restrictions in trade between the provinces, and so
on. But it is not provided for in this package. You are perfectly
right in saying that it is not here.
Senator Murray: And you are not arguing that it should be.
Senator Oison: Well, I am arguing that once we get an
amending formula we can then address that question so that
we can further enhance the rights of Canadians. But obviously
that would be done in accordance with the amending formula,
whether it is the Victoria Charter or some other one agreed to
by eight of the ten provinces constituting 80 per cent of the
population.
a (1630)
Senator Denis: May I ask the minister a question? He was
talking about abolishing the Senate. If the House of Commons, the provinces, and everyone else is in favour of abolishing the Senate, we would not be in a position to object; and, if
that is true, does the minister not think that section 44 is
useless?
Senator Oison: Section 44 would not be used, for example, if
we agreed.
Senator Flynn: How amusing.
[Senator Murray.]
Senator Oison: I also put the argument that the Senate just
does not go out of existence in that way. It would seem to me
that no senator would want to retain the level of authority that
is there if all the provinces and the House of Commons passed
such a resolution.
Senator Flynn: The simple answer is “yes.
Senator Denis: If this veto power of the Senate has not been
in use for 113 years, why put in that section when it is of no
use?
Senator Oison: Honourable senators, it certainly has some
useSenator Denis: Then I want to know what it is.
Senator Oison: If it were not there, then, of course, there
could be no act of Parliament of Canada without the concurrence of the Senate. Everyone knows that.
Senator Flynn: Sure.
Senator Oison: Therefore, if a situation arises under the
provisions of section 41(1) which requires-I must go over this
carefully-a majority vote in each of the regions of Canada,
plus the House of Commons, and the Senate stands in the way,
then the Senate would have an interminable veto; and I do not
believe that we should have that interminable veto.
Hon. Arthur Tremblay: May I ask the minister a question
about the use he is making of the expression “vote of a
majority in all regions” and apply it to section 41? I believe
there is no question of a referendum there. It is only a question
of the legislatures. It is a majority of legislatures. In my view,
it is important not to have people think that under section 41 it
is a majority of the people in the region; under section 41 it is
a majority of legislatures, which is not the same thing. In a
sense, to have the Senate removed from the decision under
section 41 is juxtaposing the Senate to the legislatures and not
to the people.
Senator Oison: It seems to me that there is only one way
that the legislatures got there, and that is by a vote of the
people.
Senator Flynn: Not the majority.
Senator Tremblay: I expected that answer. To substitute the
modified Victoria formula, which is in section 41, it will take
eight provinces representing 80 per cent of the people; so that
in the first referendum, to make a choice between the modified
Victoria formula, or something else which the government
might devise, and a formula which will have had the support of
80 per cent of the population, it would take just a simple
majority, which is 50 per cent plus one.
If the minister tells me that because the legislatures have
approved something under section 41 they are expressing the
will of the majority of the people, why does he not apply the
same principle to where 80 per cent of our population will be
represented when eight provinces propose another amending
formula?
SENATE DEBATES October 23, 1980
October 23, 1980 SENATE DEBATES
Senator Oison: The honourable senator is confusing me a
little, because apparently he does not like legislatures making
decisions. But that is what section 41 says, that legislatures
shall have the right to make decisions with respect to amending the Canadian Constitution.
Quite frankly, I do not agree with that argument. Legislatures are elected to make decisions. In fact, they are obliged to
make decisions and laws, and the leader of the legislature is
the one who speaks for and on behalf of that legislature when
he attends, for example, a first ministers’ conference. If a premier attends a first ministers’ conference, we have to
assume that he speaks for his government. I just do not
understand the honourable senator’s reasoning.
Senator Tremblay: Why, then, require only 50 per cent plus
one to defeat a proposai representing 80 per cent of the
population through the legislatures?
Senator Frith: If you like referendums, we have referendums; if you like legislatures, we have legislatures. Make up
your mind what you like, and whichever way it is, you can
have it; it is there.
Senator Smith: You should make up your mind which way
you want it.
Senator Frith: I have made up my mind.
Senator Smith: Obviously the honourable gentleman opposite wants one, wants it all.
Senator Frith: When the honourable senator was a premier,
did he not think that he represented anyone? Did Senator
Roblin not think so? I bet you were not talking about how you
were not very representative when you were a premier, and
that is all that we are talking about-the whole legislature,
even more than the government. If you want to have a debate
such as we have in Committee of the Whole, when we can sit
here and yack at each other, then let us do it.
Senator Smith: Perhaps the minister will allow me to ask
him the following question, which is not on the same subject. It
is one that I raised a little earlier. Assuming, for the moment,
that he is correct, that if there were a great feeling in the
country that the Senate should not exist, or should not do
something, why does he feel that it is necessary to make this
possible by asking the legislature of a foreign country to do it, rather than to leave it to Canadians to do it after they have the
right to deal with their Constitution?
Senator Oison: The answer is very simple. If we bring the
Constitution home and domicile it here in Canada, and put it
here so that there is no way that we can amend it in the future
without unanimitySenator Smith: I did not say that.
Senator Oison: You sort of said that, because if it is brought
over here and there is no suspensive veto with respect to any
one of them, including the Senate, then the Senate could, in
theory at least, stand in the way of further amendment to the
Constitution. That is pretty simple to understand.
Senator Smith: How long do you think it would last if that
happened and it was against the will of the people of Canada?
Senator Oison: That exactly describes the logic that I used
in my argument.
Senator Smith: Why are you not prepared to leave that
change in the Constitution to the people of Canada rather than
ask the legislature of a foreign country to establish it for you?
Senator Oison: Because it would be brought over here in
such a way that we could take those steps that are outlined in
here without anyone, including the Senate, absolutely blocking
any further amendment. That is pretty clear.
Senator Smith: “Pretty clear”-that is exactly what I
thought you would say.
Senator Flynn: If no one on the other side wishes to move
the adjournment, then in case a Liberal senator might wish to
continue the debate, I will move its adjournment. I made it
clear; perhaps it is difficult for some people to understand the
subtlety. Any Liberal senator may feel he is free to speak.
e (1640)
Senator Frith: Before the question is put, could I ask the
Leader of the Opposition if he intends to speak or if he is just
adjourning the debate.
Senator Flynn: No.
Senator Frith: He does not intend to speak?
Senator Flynn: I am just doing what you do-adjourning in
case some other honourable senator might wish to speak on it.
Senator Perrault: That is a misuse of the rules.
Senator Frith: Could I ask him if anyone on his side is
intending to speak on it?
Senator Flynn: I do not know, but some members may wish
to do so.
Senator Frith: Oh, then I think we cannot give consent.
The Hon. the Speaker: Honourable senators, it is moved by
Honourable Senator Flynn P.C., seconded by the Honourable
Senator Roblin, P.C., that this debate be adjourned to the next
sitting of the Senate.
Is it your pleasure, honourable senators, to adopt the
motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Flynn: But somebody else may want to speak and
that is why I am adjourning the debate.
Senator Frith: And we do not consent to that adjournment.
Senator Flynn: But, as I say, somebody else may want to
speak.
Senator Frith: Then let someone else adjourn it.
Honourable senators, I move the adjournment of the debate,
and I can say in case there is any question, that either I or
October 23, 1980 SENATE DEBATES
SENATE DEBATES October 23, 1980
some other honourable senator will speak on this order when it
cornes up next week.
Senator Flynn: 1 have no objection.
The Hon. the Speaker: If Senator Frith moves the adjournment of the debate, what happens to Senator Flynn’s motion?
Senator Flynn: 1 withdraw my motion if Senator Frith says
he wants to move the adjourniment.
On motion of Senator Frith, debate adjourned.
NORTHERN PIPELINE
REPORT 0F COMMITTEE ADOPTED
The Senate proceeded to consideration of the report of the
Special Committee of the Senate on the Northern Pipeline,
which was presented on Tuesday, October 21, 1980.
Hon. Earl A. Hastings moved that the report be adopted.
Motion agreed to and report adopted.
NOVA SCOTIA
OFFSHORE MINERAL RIGHTS-HISTORICAL FACTS-BRITISHCOLUMBIA REFERENCE CASE INQUIRY STANDS
On the Inquiry by the Honourable Senator Smith:
That he will cail the attention of the Senate to some of
the historical facts relevant to the dlaim of Nova Scotia to
minerais off its shores which distinguish that dlaim from
the British Columbia dlaim as deait with by the Supreme
Court of Canada in Reference re Ownership of Offshore
Minerai Righis (the British Columbia Reference case),
(1967) Supreme Court Reports, 792, and (1968) 65
Dominion Law Reports (2d), 353, and submit that the
said decision does not decide the ownership of minerais
off the shores of Nova Scotia.
Hon. G. I. Smith: Honourable senators, in a moment 1 shall
ask that this inquiry stand because of the time of day, notwithstanding the fact that 1 had indicated my intention to speak to
various authorities in the leadership of the bouse. 1 just want
to make it clear that I do not wish to impose myseif on the
Senate at such a time as this, and 1 now ask that the inquiry
stand.
Inquiry stands.
The Senate adjourned until N4onday, October 27, at 2 p.m.
SENATE DEBATES October 23, 1980