Canada, House of Commons Debates, “Call for Amendment, Affirmative Action Programs & Establishment of Special Joint Committee of the Senate and House of Commons”, 32nd Parl, 1st Sess (16 October 1980)

Document Information

Date: 1980-10-16
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1980 at 3714-3764.
Other formats: Click here to view the original document (PDF).


Hon. David Crombie (Rosedale): Madam Speaker, my question is for the Minister of Justice, who in this case in particular fortunately is also the minister responsible for social programs. The minister may recall that in June of 1978 there was a very famous case in the United States, the Bakke case, which dealt with affirmative action programs in relation to the bill of rights in the United States. In that particular case, which the minister will recall, the Supreme Court of the United States threw out the affirmative action program at the University of California on the basis that it was discriminatory according to the bill of rights. I would like to ask the minister whether he has yet sought a legal opinion as to whether social programs in this country—and more particularly, affirmative action programs—are in jeopardy as a consequence of the bill of rights proposed in his resolution.

Hon. Jean Chrétien (Minister of Justice and Minister of State for Social Development): Madam Speaker, I am not aware of the particular case to which the hon. member refers. I will look into that, but I think that we have made provisions in the bill of rights which will be enshrined in the constitution to make sure there is no such problem. In fact, if this House would make up its mind and send the whole resolution to the committee, I would be able to deal on a one-to-one basis with these questions. The matter is before the House, but it is in the committee where we can reply to these questions.

Mr. Crombie: Madam Speaker, like all members of this House, I am aware that section 15(2) of the proposed resolution deals with the question of affirmative action programs as related to the disadvantaged. If the minister will check, he will find that one of the difficulties in the Bakke case and two subsequent cases was that the definition of the word “disadvantaged” caused great difficulty. Right now in Washington— I checked this morning—their own affirmative action programs and many of their social programs are in jeopardy as a consequence of that decision. Would he please undertake to advise the House of the legal opinion which he would seek, and make sure that the House, and indeed all people in this country who are concerned with the matter, are informed?

Mr. Chrétien: Madam Speaker, we did answer this question a few seconds ago. I said that it is before the committee that we will discuss these issues—

Mr. Clark: You prefer Westminster.

[Page 3718]

Mr. Chrétien: —and ensure that the proposed charter of rights be debated in a rational fashion. I think that during the exchanges we might have in committee between members, myself and the officials of my department we could find the best solution. I do not think that it will be in the best interest of the House to try to score political points at this stage—

Mr. Clark: Yes, go to London, avoid Canadians

Mr. Chrétien: Madam Speaker, the hon. member seems to believe there is a serious problem, a problem I would like to solve in a judicial manner as quickly as possible. The best way of doing so is to discuss the proposals of the hon. member in committee, to look at the legislation as it is drafted and amend it if necessary.

Mr. Crombie: Madam Speaker, the minister well knows, and so do his colleagues, that we will be asked to vote on this matter before it is sent to the committee. The people 1 represent would like to know the answer to the question. It is a very straightforward question. The basis of my question is this: the Minister of Employment and Immigration brought forward a few weeks ago three affirmative action programs dealing with young people, dealing with women, and dealing with Indians. If the Bakke case were applied here, those three programs would not be declared legal.

Some hon. Members: Oh, oh!

Madam Speaker: Order, please.

Mr. Crombie: I ask the minister only one question—

Madam Speaker: Order, please. I know the hon. member was about to ask a question, but I must remind him that when I call him to order, he must resume his seat. Will he now put his question immediately.

Mr. Crombie: Madam Speaker, I appreciate your advice to me. I should like to ask the minister whether he would undertake to provide the House with a legal opinion that those three programs are not in jeopardy.

Mr. Chrétien: Madam Speaker, it is my intention to deal with all these problems in the committee—

Some hon. Members: Oh, oh!

Mr. Chrétien: —and I am profoundly convinced that the best way we can protect the rights of Canadians is to have a good charter of rights—

Some hon. Members: Oh, oh!

Mr. Chrétien:—and to make sure that this charter of rights is enshrined in the constitution and drafted in such a way that no affirmative action programs which have been decided on for the good of Canadians will be thrown out because of the charter of rights. Basically, a charter of rights is to protect rights. I am glad that the hon. member wants those rights to be protected and I hope he will vote for a charter of rights.

Some hon. Members: Hear, hear!

An hon. Member: That is a sad response





The House resumed consideration from Wednesday, Octo-
ber 15, 1980, of the motion of the Minister of Justice and
Minister of State for Social Development (Mr. Chrétien):

That a Special Joint Committee of the Senate and of the House of Commons
be appointed to consider and report upon the document entitled “Proposed
Resolution for a Joint Address to Her Majesty the Queen respecting the
Constitution of Canada” published by the government on October 2, 1980, and
to recommend in their report whether or not such an Address, with such
amendments as the committee considers necessary, should be presented by both
Houses of Parliament to Her Majesty the Queen:

That 15 members of the House of Commons to be designated no later than
three sitting days after the adoption of this motion be members on the part of
this House of the Special Joint Committee;

That the committee have power to appoint from among its members such
subcommittees as may be deemed advisable and necessary and to delegate to
such subcommittees all or any of their powers except the power to report directly
to the House:

That the committee have power to sit during sittings and adjournments of the
House of Commons;

That the committee have power to send for persons, papers and records, and to
examine witnesses and to print such papers and evidence from day to day as may
be ordered by the committee;

That the committee submit their report not later than December 9, 1980;

That the quorum of the committee be 12 members, whenever a vote, resolu-
tion or other decision is taken, so long as both Houses arc represented and that
the joint chairmen be authorized to hold meetings, to receive evidence and
authorize the printing thereof, when six members are present so long as both
Houses are represented; and

That a message be sent to the Senate requesting that House to unite with this
House for the above purpose, and to select. if the Senate deems it to be
advisable, members to act on the proposed Special Joint Committee.

Hon. John Roberts (Minister of State for Science and
Technology and Minister of the Environment): Madam
Speaker, I welcome the opportunity to take part in this debate
which is, as many members of the House have recognized, an
important and historic debate and one which has been of very
high quality. I have not been able to be here for all the
comments of members of the House, but I have followed
closely their remarks as reported in Hansard. It is clear that
members on all sides of the House participating in the debate
have raised questions of serious and thorough interest.

Also I am rather glad to have had the opportunity today to
listen to the crossfire before we reached this stage. I was
somewhat surprised by the puzzlement, concern, or almost
astonishment which has just been expressed by some mmem-
bers opposite about the course we have proposed to deal with
this resolution because clearly it has been known to them for
some time. I should like to refer to the remarks of the Hon.
Leader of the Opposition (Mr. Clark), as reported at page
3290 of Hansard of October 6, which read as follows:

The significant debate will come when the resolution itself is brought directly
before the House sometime after the committee has made its report. Only when
that resolution is presented will we know if the government has taken any

Mr. Baker (Nepean-Carleton): Mr. Speaker, I rise on a
point of order. I apologize to the minister, but l want him to
understand that what we were talking about was a resolution
debatable and amendable in this House in the form of an
address to Her Majesty the Queen and to the British Parlia-
ment. We were not talking about the concurrence debate
which was referred to by my friend. Precisely that is what the
Hon. Leader of the Opposition (Mr. Clark) was referring to at
that time, just so that he understands.

Mr. Roberts: I think I understand the hon. member for
Nepean-Carleton (Mr. Baker), but it does not seem to me that
that is the clear purport of the remarks made by his leader.

Mr. Baker (Nepean-CarIeton): Resolution.

Mr. Roberts: What is referred to is not the resolution before
the House, but a resolution which has gone to the committee.
It refers to the report made by the committee. His leader said:
Only when that resolution is presented will we know if the government has taken
any account at all of the views that are expressed by members of this House of

Clearly the reference is a report coming from the committee
after it has been referred by the House to the committee. This
procedure, which seems to have elicited so much surprise
today, is one that has been perfectly well known to members
opposite for some time.

As I said, I welcome the opportunity to take part in the

Mr. Baker (Nepean-Carleton): We welcome you too.

Mr. Roberts: I am glad the hon. House leader opposite
welcomes my participation in the debate which clearly has
gone on for some time.

I hope to discuss seriously some of the points made by other
speakers in the debate. lnevitably in a debate which has gone
on this long there is a certain redundancy of argument and a
certain reference to what has already taken place. Of course in
a ‘debate which has ranged so widely, inevitably there are
thingsthat appear to be consistent and some seem to be
inconsistent. It seems to me somewhat surprising when we
proposed a charter of rights for individuals, which is a common
element in virtually every federal system in the world, that
critics should accuse us not of supporting federalism but of
abandoning British tradition. When we propose an amending
procedure with an attached referendum, they falsely accuse us
of establishing a unitary system of government which is char-
acteristic of the government of Great Britain. They do not
condemn us for accepting the British unitary system but they
accuse us of abandoning federalism.

Perhaps it is even more surprising that provincial govern-
ments attack us for suggesting that an appeal to the courts
should be permissible to protect the rights of the people, and
then themselves appeal to the courts to protect the rights of
provincial governments, as if somehow it is more important
that the courts protect the rights of provincial governments
rather than the rights of individual citizens.

Of course in our proposals we have neither abandoned the
British parliamentary tradition nor the principles of federal-
ism; we embrace them. In our proposals for reform we do not
alter the distribution of powers between two levels of govern-
ment, the essential of any federal system, nor do we propose to
abandon the traditions of British government, the linkage
between the executives and the legislatures which is common
to the tradition not only of this House but to the legislatures of
the provinces. We are not suggesting to change any of that.
Indeed we have preserved in our proposals both the desirable
aspects of the parliamentary system and the balance of

I should like to refer essentially to two speeches made at the
beginning of this debate. First I refer to the speech of the
Leader of the Opposition in which I think we dwelt largely on
a marginal or peripheral—I do not say unimportant—concern
with section 42 of the amending procedure.

I would also like, perhaps a bit later, to refer to the remarks
of the Leader of the New Democratic Party (Mr. Broadbent),
partially because I believe that he stated very clearly to the
House the two essential questions which confront the House
and upon which the House must at this stage decide.

Let me first refer to the remarks of the Leader of the
Opposition. While he did refer to the inappropriateness, as he
believes it, of the government proceeding in the fashion which
is described in the joint resolution that will be forwarded to the
Queen, and therefore to the attention of the British Parlia-
ment, a large portion of the Opposition Leader’s remarks dealt
with the effect of the amending procedure which we have
proposed for the consideration of the House. I would like to
refer in passing to the hon. member’s remarks suggesting that
we were following what he called a “unilateral” procedure.
Clearly, it is not a unilateral procedure because we have the
support of others, and it is not merely the government.

The unilateral approach to the constitutional amendment is
one which he described as contesting the validity of the
approach. I think it is undoubtedly clear that what we have
proposed is the proper legal approach. The British North
America Act is an act of the British parliament and therefore
amendable by that Parliament. Clearly, the procedures under
which that amendment will take place through the British
parliament are well known.

It is contested that constitutionally the precedents which
underlie an address from the House of Commons and Senate
of Canada may not have been fulfilled in this circumstance. It
seems to me that there is confusion as to what are those
precedents. Therefore, I would like to dwell on the question of
what the constitutional conventions have been in the past as
they relate to amendments of the constitution of Canada, the
British North America Act.

One can judge differently the number of amendments which
apply. Strictly speaking, there are 18 amendments to the BNA
Act and, if one includes the Statute of Westminster, there are
a few more. In only four instances—five, if one includes the
Statute of Westminster—out of 22 of those amendments has
the unanimous agreement of the provinces been asked for and
obtained. They were in relation to the Unemployment Insur-
ance Act, 1940; the Old Age Pension, 1951; retirement age of
provincial superior court judges, 1960; and the addition of
supplementary benefits to old age pensions in 1964. As lsay, if
one includes the Statute of Westminster, 1931, that is another
precedent of consultation.

However, in all the other cases, that extensive consultation
agreement did not take place. ln 1907 amendments requested
by the Canadian Parliament were consented to by all the
provinces but British Columbia. The British North America
Act of 1930 which transferred resources to the four western
provinces had the consent of only those four provinces. The
British North America Act of 1949 confirmed the terms of the
union between Newfoundland and Canada, and it had the
consent of that province only. None of the other constitutional
amendments in 1868, 1871, 1875, 1886, 1893, 1895, 1915,
1916, 1927, 1946, 1949, and 1950 involved the securing of
provincial consent, unanimous or otherwise.

ln view of the historical record, it is very difficult to contend
that the precedent has been established that unanimous con-
sent, or even substantial consensus, is a requirement for trig-
gering the legal process which is clearly within the authority of
the British parliament to enact. However, it was not on that
issue which the Leader of the Opposition essentially concen-
trated his remarks. What he referred to again and again as the
preponderant aspect of his speech was the amending formula
which is contained in section 42 of the proposed resolution.
This he describes, for instance, as something that “breaks that
partnership” which is the essence of the federal system. He
went on to say, according to Hansard at page 3291:

—the central government would have the authority to deprive unilaterally—

And l stress that he uses the word “unilaterally”.

—the provinces of their powers. . . because this authority would not be limited,
this central government could, if it chose to, deprive the provinces of all their
powers for all time.

On page 3292 of Hansard, the opposition leader is reported
as saying that section 42 is the:
—greatest menace to rights . .. this provision allows rights to be removed by
referendum, and any day when there is a fever in this land against a particular
group of people, against a particular group of rights, this government, by the
power it seeks in section 42, could invoke that power to have a national

And he says that the government could hold that referen-
dum any day. Again, on page 3295 of Hansard the Leader of
the Opposition is reported as having referred to:

—the power to amend unilaterally the constitution by way of a referendum and
in so doing going over the governments and the legislatures of the provinces.

Unfortunately, in his description to the House of this sec-
tion, the Leader of the Opposition is guilty of both sins of
commission and sins of omission. First of all, it is not accurate
to describe section 42 as one which permits the Government of
Canada to act unilaterally. Section 42 does not permit the
government to act alone.

Section 42 requires co-operation or support in one of two
ways, either by the participation and support of the provinces
on the basis of the Victoria formula, or on the basis of the
support of the people of Canada. It certainly does not enable
the Government of Canada to act without either the support of
the provinces or the people of Canada. Clearly in his remarks
to the House, the opposition leader—and l do not suggest that
it was intentionally, but inadvertently—mischaracterized what
is said in section 42.

He is also guilty of sins of omission. He not only describes
inaccurately the requirement for consultation and acceptance
either by the provinces or the people of the country, but he
describes a national referendum as if it alone were the key to
triggering the support for an amendment if an appeal were
made to the people of Canada. Not once in his remarks did the
Leader of the Opposition touch upon the fact that what is
required is not simply, if there is to be a referendum asking for
constitutional change, a national majority of support, but a
majority of support in each of the four major regions of the
country. We are not talking, as some readers of his remarks
might gather, of a situation in which two or three regions of
the country could come together and impose their will over a
fourth region of the country, where a majority across the
country might impose its will on a regional majority. Section
42 describes a rather complicated referendum procedure which
requires that there be strong regional support in every region
of the country if there is to be the use of this mechanism.
The third thing l would say about section 42 is that it is not
an extraordinary and unusual provision. Upon occasion mem-
bers opposite have somehow described it as a tyrannous mech-
anism. l find it very puzzling that democratically elected
politicians would regard an appeal to the people as some
tyrannous mechanism. It is the kind of approach which we
find, for instance, in the United States federation. There it is
possible to get support for constitutional amendments, not
simply through the support of state legislatures, but also
through the provisions for conventions which can take place so
that the people themselves may directly participate in having
that kind of constitutional change result.

Mr. Dick: That is misleading.

Mr. Roberts: The purpose of section 42, on which the
Leader of the Opposition spent so much time, is to arrive at a
mechanism by which, if there is a deadlock between the views
of the national government and the views of the provincial
government about what constitutional changes might be
required, there is a mechanism for resolving that deadlock.
No longer, after the House presents these proposed constitu-
tional changes to the British government to put before the
British parliament, will we be in a situation in which, in dire
emergencies, the British parliament would bail us out. There
must be some way to solve the continuing conflict between
provincial and federal governments on constitutional change.
Surely, in a democratic country, the best way to resolve that
conflict is through some form of appeal to the people of the

I know that there are members opposite, and perhaps others,
who are concerned about the effectiveness or adequacy of this
method as a procedure for breaking the deadlock. All I can say
to that is, “Les us get the bill into committee and let us have
changes proposed as quickly as possible”. Clearly, in the
resolution we have brought forward, the series of provisions
which we think command public support would be the most
publicly acceptable. We are anxious to see if improvements
can be suggested and if improvements are suggested, the
proper place for that to take place is in committee.

Mr. Knowles: Mr. Speaker, would the minister permit a
question at this point?

Mr. Roberts: Mr. Speaker, if the hon. member would
permit, I would prefer to take the question at the end of my
remarks, and I shall try and leave a minute for it. I shall not
go on too long. I think he will be rather pleased with the next
stage of my remarks and I do not want to deprive him of the
pleasure of that. My reference is to the point of view expressed
by the leader of his party during the debate, and that is what I
wish to turn to now.

I suggested that the point of view expressed by the Leader of
the Opposition in the opening days of debate was peripheraI—
and I do not mean that in any slighting way—but it seems to
me that the leader of the hon. gentleman’s party cut through
to the essential questions that should preoccupy the House.
The amending procedure is something that can be discussed
adequately in committee.

l am going to cite the words of the hon. member for Oshawa
because I think they put the question before the House very
well. As reported at page 3296 of Hansard for October 6, he

The first question is—is it legitimate, is it appropriate at this time, for the
Parliament of Canada, alone, to be supporting a resolution that would change
the constitution of this country.

I want to discuss that question. He went on to say:

The second question to be answered, whatever one decides on the first, is
whether the particular package we have before us on a range of matters . .. is
one we should support on its own terms—

I wish to say a few things about that as well.

The first question relates to the legitimacy of acting now in
the way that we have proposed to the House. My argument
would be that if one examines the history of attempts over
more than 50 years for Canadians—officials, governments, the
people of Canada—to resolve these questions, and if one looks
at the urgency of the question now, given the regional discon-
tents in our country expressed and dealt with most recently in
pressing fashion in the Quebec referendum campaign—if one
looks at the history, if one looks at the present crisis, if one
looks at the opportunity, now is clearly the time to act.

On the final day of the first ministers’ conference when
provincial premiers were summing up their points of view,
some of them remarked how wonderful it had been because it
was such an educational experience and that they were finally
getting to see, in substance, all the dimensions of the constitu-
tional problems. If that is the case, Mr. Speaker, we have been
educating ourselves for well over 50 years. It is time we
graduated. There have been a whole series of attempts, all of
which ended in futility–attempts to change and resolve the
problems dealt with by the resolution presented to the House.

There was the dominion-provincial conference of 1927
because at that time Great Britain wished to relinquish its
powers of direction over Canadian law. Discussions were held
with the provinces to try to arrive at some sort of amending
procedure. The proposals reached were rejected by a number
of provinces.

In 1931 we tried again as a result of a request from Ontario
when a dominion-provincial conference was held in the spring
of that year, but no agreement was reached.

A special committee of the House of Commons was estab-
lished in 1935. Between February and the end of June it held
11 sessions but could not reach agreement.

A dominion-provincial conference was called in 1935 and a
continuing committee was established on constitutional ques-
tions which sat well into 1936 and reported on March 2. No
further action was taken because World War II intervened.

After the war, in 1950, there was a fourth attempt to try to
reach agreement, but the committee could not reach agree-
ment and a conference convened in Quebec in September to
discuss the findings of the committee equally could not come
to a successful conclusion.

In 1960 the conference of attorneys general convened. It
met four times before September, 1961, but failed to come to
any conclusion. A draft bill was prepared for the House of
Commons but it did not receive the approval of the provinces
and that initiative was dropped as well.

In June, 1964, discussions were reopened, but in January,
1966, the Quebec government indicated that it would not
accept the proposals put forward, so that failed.

In February, 1968, the first ministers came together and
began discussions which culminated in the Victoria conference
of 1971. Again, the provinces were unable to agree on consti-
tutional change at that point, because of the disapproval of the
province of Quebec.

In April, 1975, there was a federal-provincial conference, an
eighth attempt to find an amending formula which would suit
the country. Again, in October of that year, the provinces
informed the federal government that they would not agree to
the patriation exercise but wished to have a much wider
ranging discussion on constitutional reform.

The ninth attempt was in 1978-79. This led to the presenta-
tion to the House of Commons of Bill C-60 at the end of
October, 1978. As most hon. members know, this was the
subject of very considerable discussion and controversy.
Earlier this year, from June to September, my colleague, the
Minister of Justice (Mr. Chrétien), and I participated in an
attempt to find a common basis of agreement with the prov-
inces on constitutional reform.

So, Mr, Speaker, since 1927 there have been ten attempts to
achieve patriation and an amending formula. Two have been
on provincial initiatives, in 1931 and 1968; there have been 21
meetings of first ministers on the constitution; 43 meetings of
ministers; a minimum of 17 meetings of officials alone to
discuss patriation and an amending formula, and a host of
other informal meetings throughout that period.

Looking at this 50 years of attempts, one is tempted to
paraphrase Shaw’s St. Joan—”How long, how long, O Lord,
how long before Heaven is prepared to receive thy saint?”

This long history of attempts and, l think, the frustration of
that process, were brought home clearly to the people of
Canada by the televised proceedings earlier this year, and this
history of frustrated attempts to reach agreements, I think, has
some simple explanation. Partially, it reflects the divergent
views on what the nature of Canada is, but also it reflects
tactical considerations. l do not say this out of any disrespect
for provincial governments. One expects that when the provin-
cial governments encounter the federal government there will
be hard bargaining. Clearly, in a situation where one argues,
with credibility, that there had to be unanimous approval of
the provinces for change, every province had an incentive to
hold out for some accommodation of its specific and unique
view. Every province, in a sense, would feel under that kind of
tradition, that it was a hammer-lock for twisting out yet more
concessions from the federal government. Clearly, in those
circumstances, it is extremely difficult to bring the eleven
governments together in agreement.

What we have proposed now, by removing that hammer-
lock of the necessity of unanimous consent, will place the
continuing negotiations of the provinces and the federal gov-
ernment on a much sounder, more equitable basis of discussion
and negotiation.

To this long, sad and, in some ways, almost tragic history of
attempts to meet the needs of constitutional reform, we have to
add new elements which are clear to most of us. They were
certainly clear to us last spring when we were considering the
effect of the referendum debate in Quebec, that is, the urgency
of the situation we face flowing from the referendum debate
and the decision made by the people of Quebec at that time.

Not only did federal politicians on both sides of the House
go to Quebec at that time to say they were prepared to
undertake significant and thorough changes to the constitution
but, l believe, each of the provincial premiers outside Quebec
made the same kind of commitment. With the successful
resolution of the Quebec referendum debate, we on this side of
the House and, l believe, hon, members opposite as well,
accepted the urgency and the need to respond—the need to
fulfil the commitments which had been made to Quebeckers at
that time.

l regret to say that after the summer’s discussions with
provincial governments, and as the summer wore on, the sense
of urgency and priority which had animated discussion, began
to disappear from the point of view expressed by the provinces.

To us on this side of the House, however, that urgency is
still there. lt may be that within the next few days the people
of Quebec, through a general election in Quebec or whatever,
will again be asked to comment and reflect upon and express
again the decision they made last spring. We believe on this
side of the House that it is urgent, and that we have a sound
commitment to the people of Quebec to provide them with the
kind of significant change that we believe they wish to have.

An hon. Member: What about other provinces?

Mr. Roberts: The hon. member asks about other provinces. l
shall return to that in just a moment.

There is one other aspect which leads me to believe that we
must act now. Clearly if we are to act now it cannot be with
the kind of unanimity that I believe the Leader of the Opposi-
tion has suggested we should have. lt is because there is-at
least l believe it to be so—a sense of impatience and urgency
throughout the country, not simply on the part of Quebeckers
but throughout the country, that we deal with and solve these
questions. There has come into the Canadian consciousness a
sense that the time really has come to decide whether Canada
is to be simply in a sense the sum of its parts, cumulative
regions of the country, or whether there is a society based on a
strong national economy and a strong national government
which is much more above and beyond the parts of the

ln relation to that question I would like to cite at some
length—l hope not at too great length-some of the comments
made by one of Canada’s most distinguished historians,
Professor Arthur Lower, before this debate began and before
the resolution was presented to the public and the Parliament,
but after the conclusion of the last federal-provincial confer-
ence. l think he expresses in his words the kind of concern
which l have just tried to express, that sense of impatience that
the governments of Canada and the people of Canada resolve
their views on the fundamental nature of this country. l cite
from an open letter which l believe is addressed to the Ottawa
Citizen. ln it he is referring to the federal-provincial confer-
ence. He says:

lt seems obvious that agreement will never be reached between the federal
government and ten demanding provinces. Future conferences will probably find
more disagreement than this last one. The cause lies in the very nature of things.
for there will always be at least one province out of line. lt is hardly the same as
a jury trial; you cannot keep provincinl premiers locked up until they come to an
agreement. Onc could probe deeper still, for the ultimate cause lies in the
dilemma we face over the nature of Canada.

He then goes on to draw some parallels with the situation in
the early years of the United States when he describes the
United States as having dodged the question of sovereignty for
three-quarters ofa century, He then says this:

lt seems to me that the point for Canada is quite clear. No more than the
Americans shall we be able to go on with the question of sovereignty completely
unsettled. The way out that we have tried is of course federalist, but surely
federalism assumes that the last word lies somewhere. The recent conference has
shown that we are trying to tell ourselves that it lies nowhere, that a country can
go on without making all-important decisions. l think this is impossible. The
power of decision there must be, and it must lie at the centre.

What we have proposed is that that centre of authority
ultimately should lie with the people of Canada, by being able
to appeal to them to resolve disputes about the constitutional
order and amendments to it.

To revert to Professor Lower, he goes on in his letter to say:

The plain fact is that if a so-called country does not have the power of decision
in one set of hands, that is, one government, it is not a country at all but merely
a league of states. Remember the fate of the League of Nations. No member
would abandon its sovereignty and the league went to pieces.

The moral it seems to me, is plain; we must somehow or another put a stop to
the present tendency, a very strong one, to convert ourselves into a league and
head back to a federal union. The sccond moral follows at once; we must have
within our borders the right lo amend our constitution.

That, Mr. Speaker, is what we have suggested should be

My remarks therefore echo l believe those of the Leader of
the New Democratic Party on the first question he posed. Is it
appropriate for us to act this way at this time? l say the study
of history and the sense of the present crisis of the country give
us no choice but to proceed as we cannot receive we will never
receive, the strong support of all the provinces. We must now
proceed on the basis of the resolution which the House of
Commons and the Senate will, l hope, pass to the British
parliament to ask it to resolve once and for all that question.

The second question which the Leader of the New Demo-
cratic Party raised was the question of whether this particular
package that we have, the one which entrenches a charter of
rights, is one which we should support in its own terms,
whether it was submitted as a resolution by the Parliament of
Canada or whether it came after unanimous agreement be-
tween the government of the day and the provincial govern-
ments. I would say there again the climate of urgency in the
country requires us to proceed in this way.

lf we are to respond to those interests of French-speaking
Canadians, who, l believe, are anxious to see control of the
constitution in this country and who are anxious to sec minori-
ty language rights entrenched across Canada, it is important
that we do so urgently. l think we also must respond to the
concerns of other Canadians, not simply Quebeckers, who are
concerned about the protection of civil liberties in this country,
who are concerned about establishing the principle of equaliza-
tion within the constitution, and who are concerned about
rights of mobility across the country. lt is urgent for us to
respond to those concerns.

It may be tempting to say, “Let us simply accept an
amending procedure now and then go through what this rather
rigid amending procedure describes as a possible course of
action.” But given, as I believe we have, the very strong
general support of the people across the country; given, as l
hope we will have, the support of members from all sides of the
House, it seems to me that we cannot afford to go through a
lengthy process of the implementation of what those, l think,
generally accepted rights would require, because the formula is
rigid. And rightly so.

What should be, and what l think most Canadians believe to
be, and want to have, is the common heritage of Canadian
citizenship. Therefore, it is important to act now. It is impor-
tant to act before the people of Quebec are led to believe that
their hopes and their ambitions will be frustrated by the
lengthy process of delay. We believe that given the sense of
impatience of the provinces; and given, I think, the very
evident general support that the inclusion of this charter of
liberties within the constitution which is patriated to Canada
would provide, this is something which the people of Canada
very much wish to see happen.

l recommend this resolution to the House. l urge members
to send it to committee so that it can be discussed in detail as
quickly as possible. l look forward confidently to their support
for what is, I think, a proposal which has the support of the
people of Canada.

Some hon. Members: Hear, hear!

Mr. Knowles: Mr. Speaker, in the midst of the minister’s
speech he indicated that he would accept a question at the end.
May l now put it to him?

Some hon. Members: Oh, oh!

An hon. Member: Please do.

Mr. Knowles: Mr. Speaker, may I now put a question to

My question relates to section 42 of the proposed resolution.
I ask my question as one who believes that we would be insane
if we did not have in a Canadian constitution some provision
for breaking a deadlock. I think if we had a constitution which
we could not amend for 50 years, we would ask: why did we
ever bring it here from Britain? As l say, l ask it as one who
favours something like section 42.

I have now heard four ministers, the Prime Minister (Mr.
Trudeau), the Minister of Justice (Mr. Chrétien), the Minister
of Finance (Mr. MacEachen), and the Minister of State for
Science and Technology (Mr. Roberts), all say clearly and
categorically that section 42 is simply for the purpose of
breaking a deadlock.

Mr. Dick: It is not true.

Mr. Knowles: If you look at the resolution, sections 4l and
42 seem to be equal choices. There is no if, and, but, comma or
anything else between them. l ask the minister whether the
government would be willing, when the resolution is in com-
mittee, to make a slight amendment—it takes only a slight
one—to put into the resolution the words which these ministers
have been giving us, namely, that section 42—that is the
holding of a referendum by the federal authority—would come
into play only if a deadlock has developed under section 41;
only if section 41 has been tried?

Mr. Roberts: Mr. Speaker, I welcome the sanity of the hon.
member. I am reassured to know that three of my colleagues
have expressed the same view that I have expressed. The point
which I thought I tried to make is that we have brought
forward proposals which we thought through carefully and
which we believe would command a maximum of public
acceptability and support, and, we hope, support in the House.
The place to consider amendments clearly is within the com-
mittee. We have undertaken to consider carefully any amend-
ments which will be brought forward. When we see what the
specific form of the amendment is, then we will be able to
consider whether it more adequately meets that need of a
deadlock formula than the proposal which we made.

I want to say to hon. members in all seriousness that we are
prepared to consider very carefullyand seriously whatever is
brought forward. I am not empowered nor am I disposed to
say at the moment what our response would be before seeing it
in explicit terms. I can quite easily give the assurance that
whatever amendments are brought forward, we will consider
them with the utmost patience and the utmost openness on the
part of the government.

Mr. Knowles: Mr. Speaker, may I put this supplementary
question to the minister. In view of the fact that four ministers
have now clearly said that this is a deadlock provision only,
will the government consider bringing in its own amendment
so that it puts into the resolution the words which four
ministers have uttered in this House?

Mr. Roberts: As I said, Mr. Speaker, we brought forward
what we thought, after reflection, was the most appropriate
mechanism. I do not know, therefore, why in a sense we should
take on the burden of trying to do even better what we already
thought had been done best.

Mr. Dick: You have all been wrong.

Mr. Roberts: If we are wrong and it is not the most
appropriate mechanism, I urge the House to let the proposal
go to committee so we can see what better mousetrap they can
give us. If they provide a better mousetrap, we will buy it.

Mr. Neil: Mr. Speaker, I wonder if the minister would
entertain another question.

Mr. Roberts: Yes, Mr. Speaker, but I would appreciate if I
could respond to only one more.

Mr. Neil: My question is simply this. Early in his remarks
the minister indicated his support for the principle of a refe-
rendum. I presume he was expressing the views of his party
when he made the comment. I wonder if he personally would
agree to the use ofa referendum to determine the wishes of the
Canadian people vis-a-vis capital punishment and, if not, why

The Acting Speaker (Mr. Ethier): Order, please. I do not
think that question can be entertained during this debate.
Hon. Walter Baker (Nepean-Carleton): Mr. Speaker, I
thank the minister for his courtesy in indicating that he has a
problem and must leave. I understand that completely. I
promise to be as kind to him in his absence as I would be if he
were here.

I listened with great interest to the minister’s speech. I
listened with much greater interest to the straightforward
question put to him as a minister of the Crown, fourth in order
of having made representations about the matter of a deadlock
with respect to the change in section 42. The question was
asked by the hon. member for Winnipeg North Centre (Mr.
Knowles). The question deserved a straight answer. Instead,
there was equivocation. The Minister of Justice (Mr. Chréti-
en) was in the chamber, but he did not rise to his feet to clarify
the matter, Having had that opportunity, the government has
done what I hoped it would not do. It has confirmed the
provisions with respect to section 42, confirmed the concerns
expressed by the Leader of the Opposition (Mr. Clark), and
compounded it by saying that we can move an amendment in
the committee.

Anyone who has been here for a period of time knows there
is no right in committee to move an amendment to the
proposal before the House. We can talk about it and even
recommend it, but unless the resolution comes back to the
House of Commons in the form of a resolution or, as the
Leader of the Opposition described it, an address to Her
Majesty the Queen, there is no right of any member of
Parliament to make an amendment. I intend to deal with this
later, but it is so fundamental to the rights of Parliament I felt
I should make some comment on it now.

When I was elected to this House is 1972 I thought we
would be dealing with a number of things. I did not look that
far ahead to know that we would have an opportunity to take
part in a debate on something so fundamental as the constitu-
tion of one’s country. It therefore goes without saying that this
is an important debate. This debate deals with the fundamen-
tal issue of confederation which heretofore has always been the
relationship between the federal and provincial governments,
not the relationship between the Prime Minister (Mr. Tru-
deau) and the premiers.

The history of this country has been one long series of
federal-provincial negotiations, some of them successful and
some not. All were carried on in a consultative way. The
feeling was expressed by Mr. St. Laurent, Mr. Pearson, Mr.
Laurier before them all, and Mr. Dicfenbakcr, that all of this
would be carried on having in mind the concept of consensus.
This is the first time in our 113-year history that we have
abandoned the seeking of-a consensus. This makes it doubly
important for all members of Parliament to express themselves
with regard to this matter.

While this is an important debate, I want to say that I am
sickened by the atmosphere of it, not here in the House of
Commons because we often have differences of opinion. I am
sickened and saddened by the tragedy which has occurred
within this debate, the spectacle of five provincial premiers,
who may be joined by two more, threatening to bring action in
the courts. It does not matter whether they win or lose. That is
irrelevant. That is the stuff which law students worry about. It
is not the concern of members of Parliament.

The existence of an atmosphere in Canada that would cause
provincial premiers, for whatever purpose, to bring an action is
a tragedy. We have never before come to this point. It is
therefore important that the government consider what it is
doing. For the first time, in a grand litigious way, a number of
the provinces are bringing an action against the federal gov-
ernment for something it is doing.

Juxtaposed and set against that is the Prime Minister who,
if he is to be likened to anything in this debate, is obviously the
head of the family. He has decided not to send the document
in dispute to the Supreme Court of Canada with the hope that
the dispute can be ironed out as to the legalities and require-
ments of the law and what are the jurisdictions. That was the
purpose of the question yesterday by the Leader of the Opposi-
tion. He suggested to the Prime Minister that if there is this
dispute, it should be settled quickly. Why not settle it outside
this place, outside the provincial conferences, at least in so far
as to how far the Government of Canada can and should go?
What we had tossed back was that this is apples and oranges,
baloney, as someone called it, comparing one thing with
another. That is not the real issue.

We in this House and the government ought to be looking at
our capacity for finding ways to settle the dispute, not to
continue it and not to exacerbate it, because while we are
involved in these things what I worry about, and what affects
the people of my riding, is that provincial and federal govern-
ments are occupying their time and their energies in this
regard while the country suffers an economic downturn and
economic problems that should require our full attention. It
would be an excellent thing if somehow or other this could be
diverted. The government may choose not to stop this debate,
and I am not suggesting that it should, I am suggesting that
the court be used in the midst of it to settle some of those
issues. I hope the government will reconsider its decision not to
take this matter to court.

Let me make it very clear that the issue here is not
patriation. It is being cast that way, as if opposition parties,
members of my party and members of others, were opposed to
bringing the constitution home. That is not so. I travel as
widely as does the government House leader, he more widely
in his province than in mine, and I more widely in my province
than in his, but I say that is not the issue. There is no problem
I have found anywhere among the people I represent in this
regard. There is no one anywhere in Canada who thinks it is a
great idea for us to go trotting off to Great Britain, hat in
hand, and stand at the skirts of Margaret Thatcher and ask
her, “Please, Margaret, pass a little bill for us so we can have
our constitution at home.” Nobody would suggest that is so.

l think it is degrading, though, ifl may say so with respect,
to have the Prime Minister of Canada go to Great Britain and
say, “Do not just bring my constitution home and give me an
amending process so I can deal with it myself, but do a few
things here that l cannot do in my own country.” That is an
admission of failure.

The real issue is not whether we recognize certain basic
rights in a document or code of civil rights. That is not the real
issue. l always thought I was a citizen of a free country where
rights existed whether or not they were in a code. I always felt
I had a right, as a citizen, to have the Supreme Court protect
me in the event an action was brought against my person, my
family or my property. I have felt those rights would be
protected whether or not they were written, because that was
part of my tradition as a member ofa free society.

That is not the issue, whether or not we are in favour of a
statement of rights. The issue is not whether or not we are in
favour of something within a constitution which says we are
our brother’s keeper in this country. I have looked upon the
whole issue of regional disparity before this document ever
came to Parliament, and before it was ever thought of as
necessary to be entrenched in the constitution. l never thought
that was necessary, but I do not object to it being there,
because in fact all of the programs show that we are our
brother’s keeper; that I have a duty if I live in a “have”
province to assist those in the “have-not” provinces of Canada;
to assist areas in respect of employment job training and all of
the other things. I have a duty to assist the people of Nova
Scotia if an infrastructure is necessary there, just as the people
of Ontario have an obligation.

The suggestion that this be entrenched in a constitution did
not arise out of this resolution. I should make that clear. When
the Leader of the Opposition was prime minister of Canada
that was the first time the suggestion was made that there be
ontrenchment of those rights within a constitution, and I refer
to those rights that affect the ability of Canadians in another
part of Canada to bring or have brought to them a standard of
living and a standard of service that is appropriate. We agree
in that regard, and there is no issue there. There could not be
an issue there if you live in a federal state.

The real issue in this matter revolves around the amending
formula. As I said, for the first time we have before us a
proposal which is simply unacceptable to large groups within
our national community. That is the situation. No one is
arguing about patriation. No one is arguing about the necessi-
ty to really spell out rights. That is not a problem. Nobody is
arguing about whether rights exist, and that is not a problem.
No one is arguing about regional disparity, There is encased in
this document a formula which is unacceptable to large groups
within the national community whose consent until now was
considered obligatory by every prime minister before this one.

I must say that an amending formula is absolutely essential
in a federal state. A federal state has as its hallmark some-
thing written and something set down. In most federal states
they have something which sets out the legal rights, powers
and dimensions of authority of the different levels of govern-
ment. If you are going to do anything with that I think it is
inappropriate for there to be patriation without an amending
formula. I am not concerned about patriation as an issue, but I
think that would be inappropriate because we could not deal
with it. We would be better off not to patriate if we did not
have an amending formula because we have demonstrated our
inability on most occasions to agree unanimously, all ll
governments as they now stand in the country.

If that view is shared as to the essentiality of the amending
formula it is the attainment of that formula which is the real
significance of patriation. The real significance in the attain-
ment of that formula is Canadian political leadership, and that
is what we have lacked here in this country, in spite ofwhat we
have tried to do in the last little while by way of obtaining
what is obviously wanted by the government, a desire shared in
some respects by people across this country. We have lacked
real political leadership.

Members opposite should not deceive themselves. The fact
that this proposal comes before us at this time under these
circumstances does not represent a triumph for the Prime
Minister. It is a signed, sealed and witnessed testament to the
Prime Minister’s failure. He and his Minister of Justice may
say with conviction that we, as a nation, have failed to find an
amending formula. The truth is, however, that he as a prime
minister, and as chairman of a range of federal-provincial
conferences, has failed and failed again.

If anything, the provinces are now more suspicious than they
were ten years ago. They are more hostile to federal policies
and they are less interested in speculation about the national
good. In side-stepping the chaos he is creating in Canada, and
that is what he is doing, the Prime Minister may be bowing to
the inevitable, but I tell him he ought not to be bowing to
applause. There is no doubt that it is getting increasingly
difficult, perhaps now impossible, to achieve consensus among
the provinces and the federal government. That would take a
skilful leader, and I see no point in pretending now that the
right hon. Prime Minister is a skilful leader or that he fits that

I also see no point in joining hon. members opposite in
pretending that failure has been transmuted into success by
their enthusiasm for this measure, because that is just not the
case. It is a failure however we look at it. Because it comes to
us under these circumstances, it is a testament to the failure of
Canadian political leadership. It was important to achieve a
consensus because the histories and the perspectives within this
country are so diverse that no one man can rely on his own
convictions to reflect accurately all the emotions and aspira-
tions of all Canadians. That is a Canadian fact, and it is a fact
that the Prime Minister has not come to grips with.

Mr. Speaker, may I call it six o’clock?

The Acting Speaker (Mr. Blaker): I want to thank the hon.
member for calling it six o’clock, but if he does not mind, we
will call it five o’clock.


The House resumed at 8 p.m.





The House resumed consideration of the motion of the
Minister of Justice and Minister of State for Social Develop-
ment (Mr. Chrétien):

That a Special Joint Committee of the Senate and of the House of Commons
be appointed to consider and report upon the document entitled “Proposed
Resolution for a joint address to Her Majesty the Queen respecting the
Constitution of Canada” published by the government on October 2, 1980, and
to recommend in their report whether or not such an address, with such
amendments as the committee considers necessary, should be presented by both
Houses of Parliament to Her Majesty the Queen;

That 15 members of the House of Commons to be designated no later than
three sitting days after the adoption of this motion be members on the part of
this House of the Special Joint Committee:

That the committee have power to appoint from among its members such
subcommittees as may be deemed advisable and necessary and to delegate to
such subcommittees all or any of their powers except the power to report directly
to the House;

That the committee have power to sit during sittings and adjournments of the
House of Commons;

That the committee have power to send for persons, papers and records, and to
examine witnesses and to print such papers and evidence from day to day as may
be ordered by the committee;

That the committee submit their report not later than December 9, 1980;

That the quorum of the committee be 12 members, whenever a vote, resolu-
tion or other decision is taken, so long as both Houses are represented and that
the joint chairmen be authorized to hold meetings, to receive evidence and
authorize the printing thereof, when six members are present so long as both
Houses are represented; and

That a message be sent to the Senate requesting that House to unite with this
House for the above purpose. and to select, if the Senate deems it io be
advisable, members to act on the proposed Special Joint Committee.

Mr. Deputy Speaker: When the debate was interrupted at
five o’clock this afternoon, the hon. member for Nepean-
Carleton (Mr. Baker) had the floor.

Hon. Walter Baker (Nepean-Carleton): Mr. Speaker, at the
time of the adjournment to which you referred, l had made the
point that no one person in this country can rely on his own
conviction to adequately and accurately reflect all the conflict-
ing and contending emotions and aspirations of this country.

I put it to the members here, is there any one man who can
come before this House and at the same time speak for
Newfoundland with its trans-Atlantic traditions which were
just changed some 31 years ago or about the frustrations of the
seafaring provinces of the eastern part of Canada? Can he
fully comprehend and fully understand those things? Can that
person fully comprehend and understand the struggle of the
people of Quebec to retain their pride of history, language and
culture against successive waves of military invasion, commer-
cial displacement and social and industrial change? That is a
tall order for any man. Would he understand the Ontario of
Toronto or the Ontario that is divorced from Toronto, such as
the small town I grew up in which is about as remote from
Toronto as is Medicine Hat?

lf that one politician could grasp all at once the significance
of being a maritimer, a Quebecker or an Ontarian, would he at
the same time be able to grasp the experience of western
Canada, its settlement at times seeming to be only for the
exploitation of central Canada and to understand how much
that means to a westerner? Could he understand how far
British Columbia really is from this House and many of its
debates? That is the essence of this country.

That is why in 1867 and all the conferences ahead of it it
was decided that the only way this country could operate was
by way of federation. lt was impossible otherwise. It would
have been more convenient for a unitary state, but it could not
operate any other way.

Any person may think he comprehends this country in all its
variety, but such understanding is not given to man. We are all
shaped by our own particular view and our own particular
version of the national heritage. When the Prime Minister
(Mr. Trudeau) gave up meeting with the premiers and the
provinces, he substituted one man’s vision for a vision accom-
modating the perspective of all Canadians. He has either
endowed himself with supernatural understanding or he has
come to believe that consensus is not necessary. The Prime
Minister makes light of consensus because he could not
achieve consensus, not because it is worthless in Canadian
terms. He must now embrace the dangerous fiction of the
national will. He must now embarrass us as a nation by asking
the British parliament to shut its eyes to the dissent he is
unable to defuse and pass a Canada act. He sends his ministers
to England to make sure that the British parliament does not
make a qualitative judgment about the political process in our

If the Prime Minister persists in his unswerving course, he
will leave behind him his constitutional settlement without the
breadth of support which is required in a federal democracy.
He hopes to settle this question forever. We can only hope he
has not doomed this country to perpetual fractionalism, and
that is the essence of this debate.

No consensus has been reached with the provinces. We are
told it was impossible, and if it was not impossible then it is
likely impossible now. If common sense ruled this debate
rather than impatience. this package could have been taken to
the provinces because when you look at it you will see it is not
the package that was rejected in September. Many of the
contentious issues which were there at the conference in
September are not in that package now.

l have to be realistic. lt appears that the Prime Minister is
committed to pursuing his package here in the House of
Commons and only here. l ask him and l ask his colleagues:
will they use the House of Commons to build a more firm
settlement for their constitutional arrangements, whatever is
finally decided upon? Will they listen to and reflect on the
views expressed by MPs who together represent a greater
proportion of the population than the government majority
does? lt would be in the best interest of this country if they

l want to turn to another point, and that is a matter which
was raised earlier in the course of the day with regard to a
procedural matter, particularly in questions put to the govern-
ment House leader. My party has raised a number of questions
about the procedural process we are to go through in adopting
this resolution. Procedure bores people but it protects the
rights of members to properly debate and amend a proposition
before them.

What exactly do we now have here before us? We are
debating whether we should set up a special committee to
study, not a resolution, but the subject matter of a document
containing a proposed resolution. When the committee makes
its report, in whatever form, it will be suggesting amendments
that should in its opinion be made when the resolution itself is
brought back into the House. lf the House concurs, the House
will be concurring in the committee’s report as to whether a
resolution should be brought before the House and, if so, with
what amendments. Never in this entire process do we deal
directly with the resolution, and as a result of the procedure
which has been outlined today we cannot any of us propose
direct amendments. To fulfil the requirements of the rules of
this House the government will have to introduce the resolu-
tion directly, have it debated directly, and pass it directly.

When this debate began we were told there would be no
tricks. lt looks to me as if the whole process is a pack of tricks.
We have tried to get a clarification in this House of the
process of passing a constitutional resolution; none has been
forthcoming. However, last week a brochure was published by
the government entitled “The Canadian Constitution: Expla-
nation of a proposed Resolution respecting the Constitution of
Canada”. On page 18 of this booklet there is a statement
which the government did not have the honesty to give in this
House. lt reads:

If the committee recommends the adoption of resolutions in the form of the
proposed resolution, with or without changes, and both the House of Commons
and the Senate concur in that recommendation, those concurrences will consti-
tute a joint address. The government will then transmit the joint address to the

Let me make it clear that that will not constitute a joint
address. Let me make the position of my party clear on this
prostitution of the rules of the House of Commons. First,
nothing can constitute a joint address unless it is a joint
address. ln the past such addresses were passed directly as
resolutions and they must be now.

Second, we do not believe the House can deal indirectly with
the subject matter of a resolution and then be deemed to have
passed the resolution directly. lf the government wants to
change the rules it can introduce a temporary standing order
to do that. lt cannot sneak in through the back door.

Third, we do not accept that a majority of the House has the
right to truncate the process of debate on this question any
more than it can arbitrarily eliminate third reading of any
particular bill.

Fourth, we believe that this procedure is being advanced to
deprive the opposition and, indeed, Parliament of its full rights
of amendment and debate. We do not accept that a process
accepted by the House as suitable for amending its own
internal rules can arbitrarily be deemed appropriate for an
address to the sovereign.

Fifth, we believe our practices are quite clear—that concur-
ring in the report on a subject matter outside the House itself
leaves the implementation for a later stage.

Sixth, we believe it would be highly improper for the
government to go to the Speaker and ask that she sign and
engross as a joint address something which is not a joint
address. It would be even more improper of the Speaker to
sign such a document and thereby put the sign of approval on
a misrepresentation of the House’s actions.

Finally, we believe that the constitutional soundness of this
whole process is extremely dubious, to put it at its mildest, and
that an attempt to proceed in this manner will put the Speaker
and possibly the Governor General in an invidious and danger-
ous position.

This is a question of due process, minority rights, the duty of
the Speaker to protect minorities against an abuse of the rules,
and of possible misrepresentation of the proceedings of this
House. We are not prepared to accept the idea that our rules
are whatever the government wishes those rules to be.

This proposition, if I may say so with great respect, is
sickeningly two-faced. The government has said it would not
be acceptable to limit a constitutional debate. The Prime
Minister has said that. In reality the government is saying, the
longer we debate, the less committee study there will be. It has
said there would be no tricks. Behind the backs of the mem-
bers it published a document laying out the procedural dirty
tricks it would not admit to in the House. We are told by
Liberal members that this is just a committee reference. In
reality the government plans to rewrite the rules once this
so-called document reaches the committee. Suddenly the reso-
lution will be born of the reference of the subject matter. I
protest this process; we protest this process. It is unconstitu-
tional and what flows from it is doubtful. I hope all members
of the House will remember what I have said as we proceed
further in this debate.

There are questions about the propriety of section 42. There
is a feeling around, and l share it, that the referendum is not
dealt from a straight deck, and this is borne out by the answer
or non-answer the hon. member for Winnipeg North Centre
(Mr. Knowles) received from the Minister of State for Science
and Technology (Mr. Roberts). It is being passed off as if the
debate was on the bill of rights. I said at the outset that there
is no real problem with a statement of rights in Canada, and
there is not, but would it not be wise of this House to ensure
what particular rights we want to entrench, because if we
entrench them those rights cannot be changed quickly or
easily. That is important for us to remember.

I had some early troubles with the idea of a bill of rights,
and I confess there are feelings in this House among lawyers
and others, as there are among judges and legislators all over
Canada, and as there are among legal commentators, about
the idea of a bill of rights at all. I had a little difficulty with it;
I confess that to you, Mr. Speaker I could as easily argue the
case against a bill of rights as I could for a bill of rights.

I know how this argument comes about. There is a tendency
in civil law to codify. As the hon. member for Rosedale (Mr.
Crombie) said the other day, we have adopted, in the good old
Canadian way, two processes. Some rights are codified and
some are not codified. Frankly, I do not hold that to be the
real issue, but I do say it is important, if we do entrench. that
we know what we are entrenching and that we really do
entrench protections which not only spell out what the law is,
but what the law should be and what we would like the law to
be, we must buttress and augment what rights we have always
felt flowed from our living in a free society.

Clause 24 of the bill relieves me of the problem of the
casting aside of certain rights as a result of the codifying of
other rights. My mind is relieved, and it is my belief that if we
are satisfied with the wording of the clause we want to
entrench, the process of entrenching can be construed not as
an abandonment of the common law tradition but as a method
by which the common law traditions can be strengthened.
At least that is what I hope we would want. However, given
the inflexibility of entrenchment, the wording becomes
extremely important.

I want to take a look at clause I of the bill, if I have a few
moments. Clause I of the draft bill is the so-called guarantee
of rights. It says:

The Canadian Charter of Right: and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits as are generally
accepted in a free and democratic society with a parliamentary system of

Any lawyer or anyone else could drive a freight train
through that so-called guarantee of rights.

An hon. Member: Amend it!

Mr. Baker (Nepean-Carleton): My friend says, “amend it,”
and he is right, but let him not stand in this House and say
that what is written here is the last word. If we look at native
rights and minority language rights, we find that they are
imperfection personified. I said to one of my colleagues that
they look the tough sections, in any event—as if they were
written on an envelope in haste somewherebetween Ottawa
and the northern parts of Canada when this document was
taken up to be reviewed by the Prime Minister.

That is the problem, and I do not have the time to go into
the detail today. The Minister of Finance (Mr. MacEachen)
said he favoured the view of the Canadian Bar Association on
rights. Then why was the right to own property left out? That
is part of the Canadian Bar Association’s view on rights. Why
was that right left out? Is there some reason or other?

The minority language rights reference is not) what I
thought it was and not as it was represented by the Minister of

Justice (Mr. Chrétien). lt creates two kinds of Canadians, and
they are not French and English. Subclauses (1) and (2)
discriminate with respect to rights. They create two classes of
Canadians, and if we are going to talk about rights, Canadians
are one class whether they are French or English and whether
they live in Manitoba, Quebec or Ontario. This is not some-
thing l would feel proud of as a draftsman in terms of
protecting rights. lf we are going to have these rights, then let
us entrench what we consider our best efforts rather than our
first efforts. That is a problem we have.

We have talked about the problem of an amending formula.
The hon. member for Rosedale laid out the objections, gave an
alternative to the government with respect to the Vancouver
formula and gave an undertaking on behalf of our party which
I am prepared to repeat on behalf of our party.

The referendum in this bill is not a neutral device.

Mr. Speaker, I believe that this country is more than the
sum of its parts, and l believe we cannot have deadlock
forever. There is a time to act, as there was a time to act in the
deadlocked Canada of 1864, and I hope that Canada as a
nation will be the focus of ‘our loyalty and the essence of our
hope. l have no illusions about the provinces. They operate in a
different political context than l do.

We had a message.


In the speech he made on Monday, the Minister of Justice
was kind enough to draw my attention and that of my col-
leagues to the comments made by Premier Davis. l would like
to do likewise and quote the comments made by Mr. Ryan, his
leader, if Mr. Davis is mine, as reported in the newspaper Le
Devoir on Monday, October 6.

Mr. Ryan wrote and l quote:

—the federal system has been based up to now on the principle of equality
between both levels of government, each in its own jurisdiction; there was no
question that one level of government be dependent on the other or have
preponderance over the other. With the system introduced under the federal
project, the preponderance of the federal government over the provinces is
acknowledged. lt is a new political principle which, in my view, gives an entirely
new aspect to constitutional law and political development in Canada. And we
do not believe that it is the proper way in which to lead Canada at present. We
maintain that the constitution is the common property and responsibility of the
two levels of government. For major changes affecting the constitution, it is
necessary to obtain the consent of both levels of government. Neither of those
levels can assume the privilege or the right to act alone in those matters which
may indeed alter federative relations.


Mr. Speaker, the government has come to this House of
Commons. ln doing so, the government has hurt the cause of
confederation in the way in which it has come. lf the govern-
ment wants to help the cause of confederation, then people on
the government side should understand that there are repre-
sentative views in this House which are different but which are
nonetheless Canadian, and they ought to listen to those views.
l want to give them every chance to do that.

Therefore, in closing I wish to move an amendment. l move,
seconded by the hon. member for Wellington-Dufferin-
Simcoe (Mr. Beatty):

That the motion be amended by adding thereto aftcr the fifth paragraph the

“That the committee shall be deemed to have the resolution directly before
it for the purpose of discussion and amendment. and that the committee shall
report the resolution as amended in a form which will permit both Houses to
directly consider and amend the said resolution”.

Thank you, Mr. Speaker.

Mr. Pinard: Mr. Speaker, before we debate the amend-
ment—and l understand that my hon. colleague will seek the
floor in a few minutes—l wonder if the opposition House
leader would grant me a question, just as l granted him one
yesterday after my speech.

Mr. Baker (Nepean-Carleton): Oh, yes

Mr. Pinard: The hon. member for Nepean-Carleton (Mr.
Baker) just mentioned that he doubted the legality of our
process. As l understood him, he believed that some premiers
would go to the court to contest the legality of our procedure
in the House on the matter of the patriation of the constitu-
tion. I should like him to explain to me how it is that the
premiers could not even agree unanimously on this matter?
They could not even reach unanimity on this fundamental
question of the legality—

Mr. Deputy Speaker: Order, please. The Chair has an
amendment before it. l should simply like to note at this point
that the Chair would like to take the amendment under
advisement before ruling whether or not the amendment is in
order. The Chair will now proceed to recognize the next
speaker in the debate.

Mr. Pinard: Mr. Speaker, l rise on a point of order. When l
spoke previously it was on a point of order. You had recog-
nized me on a point of order when l asked for permission to
ask a question, and I understand the hon. gentleman accepted
my request. lf you will recognize me, Mr. Speaker, l will ask
the question, but if you do not, l will not.

Mr. Deputy Speaker: The time of the hon. member for
Nepean-Carleton (Mr. Baker) has expired and the minister
can only ask a question with the unanimous consent of the
House. ls there unanimous consent?

Some hon. Members: Agreed.

Mr. Pinard: Yesterday I granted the hon. gentleman a
question. My question is as follows: How does he reconcile his
views on the legality of our action if the premiers cannot agree
on this, because only some of them say they will contest our
action, and what does he say about Premier Davis subscribing
totally to our action in the House?

Mr. Baker (Nepean-Carleton): l suppose l could answer
that by asking my friend a question. What does he say about
his leader in Quebec totally disagreeing with the action that
the government has taken?

Some hon. Members: Oh, oh!

Mr. Baker (Nepean-Carleton): I answered the hon. mem-
ber’s question yesterday and I wish I could repeat that answer.
It’ is a problem. This is the position and it has nothing to do
with legality or illegality. What I said at the outset stands. I
said that I think the regrettable situation which we find in this
country, and that is putting it mildly—

Mr. Deputy Speaker: Order, please. With all due respect to
the minister, it seems to me that we are now entering into an
exchange between two hon. members. With the consent of the
House, the Chair would now like to recognize the Minister of
Supply and Services (Mr. Blais).


Hon. J-J. Blais (Minister of Supply and Services): Mr.
Speaker, I want to express the tremendous pleasure I feel at
being able to take part in this historic debate. I listened with
great interest to what the hon. member for Nepean-Carleton
(Mr. Baker), who must now take leave, had to say. I congratu-
late him on his efforts in trying to speak the language of
Molière. It is the first time I have heard him, and I hope that
the opportunity will present itself again only in a very distant
future, after he has had a chance to take lessons. Now, that
being Said, Mr. Speaker, I can assure you that this after-


This afternoon when I was listening to the preliminary
debate before orders of the day were called, I thought this
would be a very long debate indeed because a number of
members in the opposition rose on a number of points and I
had the distinct impression, this being my first full day in the
House during the debate on the constitution, that this debate
would be prolonged unduly. However, I was comforted by the
fact that, as hon. members will recall, the hon. member for
Nepean-Carleton, in effect, eliminated a large number of
issues which I felt would have been debated otherwise. He
indicated that patriation was not an issue. He said that
patriation was generally agreed to by the people of Canada
and by members of this House. I concur with that and I
congratulate him on his perspicacity.

Some hon. Members: Hear, hear!

Mr. Blais: He then said that he had no difficulty with the
bill of rights. He repeated this statement just before conclud-
ing. He said that there was some details with which he perhaps
took issue but generally he believed in the entrenchment of a
bill of rights. That again is one of the areas which I thought
would have been the subject of considerable controversy, but
he did away with that one and again I congratulate him on his

The third issue was the question of the amendment. He
admitted that we needed to bring the constitution home with
an amending formula and he agreed with the principle which
was being advanced. I felt very comforted by that particular
agreement, and indeed there is very little else left for him to
debate at this time. But when he started dealing with the
amending formula, I could see very well that he was unable to
understand what the government was attempting to do. He
stated in effect that we attempted to advance the amending
formula without consent from the provinces, and he even
accused the Prime Minister (Mr. Trudeau) of lack of leader-
ship when he introduced this particular amending formula.

I wish to point out to the hon. gentleman that if he reviewed
the whole historical context of the debates and discussions
which took place between the federal governments and the
provincial governments since the statute of Westminster in
1931, he would recognize that every possible attempt has been
made to secure a consensus among the provinces. The Minister
of the Environment (Mr. Roberts) this afternoon gave chapter
and verse on every one of the meetings, federal and provincial,
prime ministerial and ministerial, which took place. He
indicated that in spite of all those meetings, we were unable to
reach consensus.

I do not think there is a more striking example than that of
the Victoria conference in 1971. Reviewing the events of that
conference, it will be recognized that in 1971 the provinces and
the federal government under the leadership of the Prime
Minister had agreed on an amending formula, a formula
which made eminent good sense. Following that particular
agreement, the then premier of Quebec, Robert Bourassa,
went back to his province and stated in effect that he withdrew
his consent based on the refusal by the federal government to
recognize primacy over social policies at the provincial level.
What he said in effect was, “I do not get the power that I
want, so you will not get the amending formula.” Of course,
everyone knows that without the amending formula no patria-
tion is possible.

What happened in Victoria in 1971 is exactly what had
happened at every previous meeting and every meeting since,
namely, that the patriation of the constitution and the amend-
ing formula, which of necessity has to be attached, has been
the lever used by the provinces in order to pry out of the
central government that concession which was considered
proper to its own jurisdiction. So, in effect, what has happened
is that every one of the provinces has imposed the unanimity
rule in order to secure full consensus which applied to the
specific will and desire of each of the individual provinces. In
that context it is a physical, intellectual and moral impossibili-
ty for a consensus to be reached.

We went through the exercise of drafting Bill C-60 in
cabinet. I sat on the cabinet committee which assisted in the
drafting of that legislation. We had every hope that that bill
would at least permit us to change our own structures at the
federal level. That was unsuccessful. I participated in the
preparation for the federal-provincial discussions in 1979 when
the Prime Minister of Canada (Mr. Trudeau) attempted with
the utmost flexibility, through every effort he possessed, to
secure an agreement between the provinces. That proved to be

Mr. Dick: He was rigid.

Mr. Blais: Rigidity is the last word I would use to describe
that exercise. When we reached that impasse there needed to
be a slicing of the Gordian knot. I do not know of any other
example or parallel befitting the impasse we reached than the
Gordian knot.

The hon. member for Grenville-Carleton agreed that we had
public support. He ought to agree and take heed of it because
there is a recognition throughout the country that we are doing
what needs to be done and what needs to be done now.

Some hon. Members: Hear, hear!

Mr. Dick: You are losing your support.

Mr. Blais: Hon. gentlemen opposite should listen to their
constituents. I have been in some of their ridings and I have
received the positive response they do not expect but will wake
up to. I have been in Parry Sound, Orillia, Nipissing, Toronto
and New Brunswick. People said that we were doing the right
thing and gave us the “go-ahead” to do it.

Some hon. Members: Oh, oh!

Mr. Blais: I have hit a sensitive nerve on the other side. I
note the hon. gentlemen who are sensitive are those most open
to the representations of their constituents.

The hon. member for Grenville-Carleton indicated a con-
cern regarding certain areas of the charter of human rights. I
listened this afternoon to the question of the hon. member for
Rosedale (Mr. Crombie) who raised the Bakke case and the
question of affirmative action. I simply call section 15 to the
attention of the House, the non-discrimination section of the
resolution. It contains specific provisions so that the non-dis-
crimination rights do not in any way infringe upon positive
action programs as reflected through policy or through legisla-
tion. That is the type of foresight we used in the preparation of
this resolution.

Also, I was somewhat concerned about an article written by
Mr. Gwyn in which he quoted the counsel for the Canadian
Civil Liberties Association who expressed some reservation
about the entrenchment of a bill of rights. I simply point out
that the counsel is a hired hand of that particular association,
whereas the chairman, Mr. Tarnapolsky, is a strong supporter
of the legislation with which we are dealing, including the
entrenchment of the bill of rights. I suggest that is the position
to adopt. l have never been able to accept the argument that
somehow we should be running after 11 legislatures in this
country to protect human and civil rights of individuals, in
effect something which should be up front. One will notice in
the resolution before us that the first section deals with human
rights and that subsequent sections deal with rights of
individuals. That is the importance which ought to be given

I am a lawyer trained in the common law as is the hon.
member for Grenville-Carleton. He expressed reservations
about codifying, that is, entrenching. I do not have any of
those reservations. While I have a great deal of respect for
skilful lawyers who are original and like to hunt in libraries in
order to unearth principles of common law which may protect
their clients, I do not think the man on the street, the
Canadian citizen, is interested in hiring lawyers in order to
ascertain his human rights. He wants them up front.

Some hon. Members: Hear, hear!

Mr. Blais: No greater man recognized that necessity than
John Diefenbaker when he saw the common law as imperfect
and understood the necessity of codifying those principles and
rights up front in the bill of rights he introduced in the
legislation. Unfortunately that was interpreted by the Supreme
Court of Canada in the guise of an interpretation statute: it
was never given its intended weight. The entrenchment of a
bill of rights, mobility rights and non-discrimination rights will
secure for Canadians a recognition of rights recognized
throughout civilization. It is time to entrench those rights.


But there is in fact another reason why I wanted to take part
in this debate. It is true that I have been sitting in this House
for eight years as a member of Parliament, but I have been a
French Canadian and a Franco-Ontarian for 40 years, since I
was born. And this really means something. Indeed, Mr.
Speaker, I had the opportunity to study constitutional law
when I was in primary school, in the sixth, seventh and eighth
grades, because our teachers recognized that it was essential
for us to know our rights if we wanted to preserve our identity
as French Canadians even though we lived outside Quebec.

I can say, Mr. Speaker, that the issue of the minority
language and education rights existed before confederation, as
hon. members know quite well. In fact, the last issue to be
settled when the confederative agreement of 1867 was passed
was the protection of minority rights as concerns education.
This appears under British North America Act section 93.

When I was a small boy, I lived in a city called Sturgeon
Falls in northern Ontario. My great grandparents settled in
northern Ontario with the building of the railway in the 18805.
They had left the province of Quebec because they considered
that all of Canada was their country. They and many of their
fellow citizens settled in northern Ontario.

In my native city, there were schools right from the start,
but unfortunately, then came what was called regulation 17. I
do not want to go over this sad moment in our history, but our
basic rights were infringed upon by a statutory regulation of
the province of Ontario. It was after this that French Canadi-
an national movements such as the ACFO, the movement of
Olivar Asselin, and others, were created to strengthen the
French language and culture in Ontario.

I had myself the privilege of taking an active part in French
Canadian activities in Toronto. First, when I was admitted to
the Bar, I sat on the advisory committee for French language
education when the Etienne Brûlé secondary school was estab-
lished in Toronto. It is hard to imagine that in a city of two
million people where there were more than 60,000 French
Canadians, we tried for four years to get a French secondary
school. Four years, Mr. Speaker! I was there myself only for
the last three years, and we were told that we would be unable
to get 200 students in our school. Of course, we now have that
school and even more because the need has been recognized,
but there was already virtually systematic resistance at that
time. However, this was in a city where people said: nearly all
of the residents of Toronto are English Canadians! There are
no French Canadians. Of course, that was not true. But in
other Ontario areas where we had a French majority, we had
to extract, to tear out French schools from the public adminis-
tration, as well as we could. I have children, Mr. Speaker, I
was fortunate. In fact, I went to an English language public
school, but after that I went to Ottawa University and perfect-
ed my French.

My younger brother went through all his classes in French
schools in Ontario. and is quite happy about it. I would like my
children, whom I dragged along into western Canada this
summer, could also have mobility, be able to go to western
Canada and live as they live at home, as I lived in Sturgeon
Falls, as my grandparents lived in Hull and Glengarry-Pres-
cott. This is not asking very much. I was brought up with a
concept of Canada under which I had as much place as a
Francophone as any Anglophone anywhere across the land,
and I am not prepared to accept anything less. I am not being
selfish, because my presence is a contribution to the country. I
am not talking of my own self of course, but rather the
presence of French civilization that contributes to this whole
country we call Canada.

Morever, Mr. Speaker, to people who may oppose this I
would suggest I never forced anyone to speak French. If people
want to speak to me in French, they are welcome to do so. But
I recognize realities. Being Franco-Ontarian, I recognize I had
to learn English. And I had no fear in doing so, because I feel
it is an advantage to speak the two most used languages in the
civilized world. I have absolutely no concern about this, and I
worked hard to learn English. I am not ashamed of it, no more
than I am ashamed of speaking French and trying to do so
with all the concentration, vigour and imagination I am ca-
pable of. Mr. Speaker, this is the nature of this country.
The hon. member for Nepean-Carleton referred earlier to
the problem in this country, because of the vastness of our
regions like the west, for anybody to understand all that. This
is a truism.


Nobody, but nobody, can deny that this country has been
enriched by a vast array of human beings who brought their
immeasurable wealth to our shores. Every time I attend a
citizenship acceptance ceremony I am impressed. The judge
always identifies the number of countries that are represented
by the new citizens and, on every occasion, I tell them that this
is a brand new country in the full process of evolution and
development with the strongest potential of any country in the

Some hon. Members: Hear, hear!

Mr. Blais: I say to hon. members opposite that there is no
divisiveness in what we are attempting to do. The divisiveness
will come from undue delay caused by the other side of the
House for no reason at all. Hon. members opposite know full
well that after we patriate the constitution, as we will, we will
deal seriatim with every issue that has to he dealt with at the
federal-provincial level. That is of necessity. But we will
remove that very unfortunate lever which was used by the
provinces, namely, the very fact of patriation, which has
stopped constructive negotiation and discussion.

Constructive negotiation and discussion is essential if this
country, with its unfathomable wealth, is to be able to pursue
its course as a unified country and as a country which will
invite to its shores people to develop its population to a level
which was foreseen by our predecessors, including Sir Wilfrid
Laurier, but cannot be conceived to the full extent even by
ourselves as we sit here debating this essential document.
I am pleased to have participated in this debate. The details
can be discussed at a later stage, and that stage has to be in
committee. Let us send this resolution to committee and we
will all be better for it.

Mr. Donald W. Munro (Esquimalt-Saanieh): Mr. Speaker,
as I stand, I am forced to admit that it is a moving experience,
to stand and defend my country from internal assaults. It
reminds me of when I was called upon to defend my country
from external assaults. It is a very stirring and emotional
experience. I would say that it is gut-gripping when so much is
at stake.

The best thing I can think of to do in the circumstances is to
approach the whole matter calmly and rationally and critically
analyse the various proposals that are before us to decide
which, if any, are acceptable and what effect each may have
on the country which we in this chamber and people through-
out the land hold so dear. What then are the proposals? The
resolution before us has been there long enough now to allow
us to stand back and look at it critically and analytically to
determine what it is attempting to do and how it proposes to
carry out its purposes.

It proposes to patriate what is called the constitution. I say
that it proposes to patriate the BNA Act and other elements of
the constitution. It proposes the cntrenchment of a charter of
rights and equalization principles. Finally, it proposes an
amending formula. This whole thing is to be done under a
deadline. That is a large package to submit to a deadline. l
would like to look at each of these areas separately. l will
begin with patriation.

l suppose the process could be called patriation. It is a name
which has been invented for a specific purpose, although, the
closer one looks at the process, the phonier it becomes. l have
no hesitation in accepting the notion that Canada’s constitu-
tional forms, documents, acts, whatever, should be amendable
and dealt with in this Parliament. But as much as l want to see
the constitutional provisions within our grasp here for amend-
ment—in other words, as much as l want to see patriation—I
cannot help but be struck by the irony of the way the govern-
ment is going about it in this resolution.

What we are being asked to do, and l find it quite incred-
ible, is exchange one British statute for another. That is not
patriation, it is a travesty of patriation. l want patriation. l do
not want a travesty of patriation.

Let me explain. lt has to be explained and it has to be
understood not just by you, Mr. Speaker, but by all hon.
members opposite as well as by the entire Canadian popula-
tion. In my view, we are beingconned at the present time into
believing that what we are doing is patriating the BNA Act
and other elements of the constitution.

Let us examine the process closely. We are being asked to
approve a joint resolution. The Fathers of Confederation
approved a joint resolution and once the context was agreed
upon in 1864 and 1866, it was transmitted to the British
parliament to be passed into law. lt became the BNA Act, a
British statute. There is no question about that.

Once the resolution before us today is approved by both
Houses of Parliament it will be transmitted to the British
parliament, with a prayer, a request, that the content of the
resolution, known as the Canada Act, be approved by the
British parliament. That is the exact procedure used in 1867 to
bring the BNA Act and Canada into being.

We all recognize that the BNA Act is now described as an
act of the British parliament which, of course, it is, and some
shame seems to be attached to that. lf the Canada Act is
approved by the British parliament it will also be an act of the
British parliament. lt is true that the British parliament will
not be able to amend it—they withdraw from that-but it will
remain an act of the British parliament and it contains ele<
ments of the constitution that have never been there before. l
suggest we must very carefully look at this notion of patriation
and what it means in terms of the statute. lt will have been
drafted in Canada, like the resolution which became the BNA
Act, but it will still have been approved by the British

Boiled down to its essentials it comes to this, Mr. Speaker:
Canada’s constitution as set out in the Canada Act—and there
is more to it than that-—will be an act of the British parlia-
ment. We must think about that, Mr. Speaker. We must not
allow ourselves to be fooled. l wonder if we are being taken on
a ride down Tom Fool Hill? If the Prime Minister (Mr.
Trudeau) has his way the British parliament will give us a new
constitution. l emphasize this: the British parliament will be
giving us this new constitution.

The Prime Minister sent two of his ministers to London. l
suggest that in a manner of speaking what we are doing is
hiding behind the skirts of Margaret Thatcher and asking her
to do the dirty work that we are not prepared to do ourselves—
to pass a law so that it will be effective here, and then we say,
“Don’t ever touch our constitution again.” l suggest there is
another way, one that has been proposed by this House and a
shorter way. We could ask the British parliament to relieve
themselves of those provisions of the statute of Westminster
which enabled them to amend our constitution and we will do
it here. The order of doing that would probably be the other
way around—that we do it here and then ask them to deprive
themselves of the right to interfere in our constitutional
affairs, if you like. Meanwhile, we should not be taken in
completely, utterly and entirely by the notion of patriation as
it is being put across in much of the literature, printed and
vocal, that is being issued across Canada.

Why are we proceeding by way of another British statute
when there is a neater, tidier way of proceeding? The cabinet
document that was leaked during the first ministers’ meeting
could give us some inkling why we are being asked to follow
this route.

An hon. Member: It was not a cabinet document.

Mr. Munro (Esquimalt-Saanich): Apparently that is now
being denied.

An hon. Member: lt is not a cabinet document.

Mr. Munro (Esquimalt-Saanich): There is a document of
advice to the Prime Minister as to the question of validity, and
this is a very important point. As to the question of validity,
the document states as follows on page 50:

—it is the view of the Department of Justice that a law passed by the U.K.
parliament to patriate the constitution,—

Note the use of the word again.

—with an amending formula and other changes, could not be successfully
attacked in the courts.

“Validity of the move”, Mr. Speaker! Are they afraid of it
being attacked in the Canadian courts—the validity of their
action? They must be ashamed of it to judge by the way they
are proceeding.

Of course, this resolution has yet to be passed by the U.K.
parliament and therefore, in my judgment, the validity of the
proposals could successfully be called into question in the
courts before this is passed—not patriation as such, but the
process by which this whole operation is being carried out.

Let me proceed to the second point, namely, that the British
parliament is being asked to do a good deal more than just
patriate the constitution. lf that were all, then the British
parliament would undoubtedly be delighted to patriate it and
have done with it. But much more than that is being sought.
Westminster is, in fact, not only being asked to rid itself of the
tiresome task of looking after the BNA Act and amending it
from time to time when asked; Westminster is being asked, in
addition, to amend it for one last time as far as they are
concerned, and, in the process, rid itself of that tiresome chore.

In what areas is approval being sought for this final West-
minster amendment? Largely, it is admitted with regret, in
areas touching on provincial jurisdiction. Entrenched rights,
many of which are property and civil rights. Under the BNA
Act which is being patriated in a sense under article 50 or
51—the name is changed but it is still the BNA Act, to all
intents and purposes—property and civil rights were assigned
topthe provinces, as was education. Those two elements are
being changed in the constitution, presumably at the request of
the government. The British parliament is expected to make
those changes.

Equally important in the area touching upon the powers of
they Senate, an area which itself impinges on provincial or
regional jurisdiction, are the prerogatives of the regions or
provinces. This is done without consulting with, and certainly
without the consent of, the provinces.

In essence what we see first of all is the Prime Minister
presenting a resolution to Parliament which because of its
attack on provincial jurisdiction will fundamentally alter the
federal nature of this country built up over 113 years. In
addition, changes have been proposed in the powers of the
Senate, thereby producing a fundamental change in the
accepted parliamentary nature of this country. I shall return to
this matter late in my remarks.

The argument we hear from the government’s side asks
what can be done after 53 years. We are being asked to do this
in 53 days. What is the deadline there for, I should like to
know? That is not more than 53 days away. If we cannot do it
as a nation in 53 years, is this House expected to do it in 53

An hon. Member: Two years.

Mr. Munro (Esquimalt-Saanich): They say it has proved
impossible to get agreement short of unanimity on how to
proceed with amendments affecting the provinces. I question
the absence of unanimity, however. In fact, I suggest that it is
not true. It is a downright lie. It is a lie.

The Vancouver consensus was agreed on by 11 governments
meeting ll’l Vancouver last fall. This was all governments,
provincial and federal. If that is not unanimity, I do not know
what is. l ask why it was rejected. Why should we turn our
backs on such a prize and proceed by way of the Victoria
formula which was rejected ten years ago? One can only
speculate. Unfortunately, my speculation, based on 12 years of
experiencing the Prime Ministcr’s baneful influence on the
public service and Parliament, leads me to the view that it is
being done deliberately to provoke antagonism, just as the
Pitfield document was deliberately leaked in Winnipeg to
provoke dissension in the meetings of the council of ministers,
and just as the other longer 65-page document—whatever it is
called—on closure of the meetings on September 12 or 13 was
designed to bring about the failure of the first ministers’

That, Mr. Speaker, is my reading of why we have rejected a
prize, a unanimously agreed upon formula, and picked one up
which was thrown overboard ten years ago. The reason is that
dissension is the way this government plans to govern this
country. I am afraid there is something sinister here. I will
return to provide supporting evidence of my belief in a minute.

The third element has to do with an equalization provi-
sion—as though that were new. Equalization has been a
constitutional practice in this country I should say for almost
30 years now. It was suggested by the leader of my party at a
meeting and included in a document which has come to be
known as the Kingston memorandum, agreed upon by seven
premiers and the present Leader of the Opposition (Mr.
Clark). It suggested that the equalization formula be included
and entrenched in any constitution that might develop. The
form in which it is there requires, I think, a little bit of
refinement. There is no problem with the idea.

If I look behind that equalization formula I wonder whether
I would find the same musty cupboard with grubs, moths and
things that I found when I looked behind patriation. I think I
will just leave that one for the time being and on another
occasion I may have a return to it.

I think you are entitled to ask, Mr. Speaker, why I am so
worried about the federal Parliament trespassing upon provin-
cial areas ofjurisdiction without consent. This brings us to the
question of what is Canada. How did Canada come into
being? Here again I suggest we go right back to fundamentals.
Not many of us may know it, but the BNA Act—incidentally,
despite what television and the billboard ads are saying—was
written in Canada by Canadians. It has been ours from the
beginning, despite those stupid advertisements which cost us
$6 million.

The BNA Act starts out in its preamble in this fashion:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have
expressed their Desire to be federally united into One Dominion—

This is followed in section 4 by the definition of Canada in
these terms:

—the Name Canada shall be taken to mean Canada as constituted under this

In other words, the coming together of three provinces, which
eventually became four provinces, desiring to be united and
form a central government.

Who or what then is Canada? Since Canada came into
being and is recognized as having been constituted as “Cana-
da” by the coming together of the “Provinces of Canada, Nova
Scotia and New Brunswick”, and since the other provinces are
regarded, once they have been created as provinces and joined
the union, as being equal in all respects to the original
partners, it follows, according to any logic of which I have
knowledge, that Canada as an entity is a creation of the

I ask hon. members not to jump too hastily. Do not let our
imaginations run too far ahead on this. Let us also remember
that the foremost authority on the federal notion, K. C.
Wheare of Oxford, in his Federal Government defined the
federal principle in the following manner: “By the federal
principle, I mean the method of dividing powers so that the
general and regional governments are each within its sphere
co-ordinate and independent”.

Canada was indeed created by the provinces-in the final
analysis by all the provinces. In the document whereby this
creation was consummated, the BNA Act, the powers, juris-
dictions and areas of operation of the two orders of govern-
ment of Canada on the one hand and of the provinces on the
other were set forth in relatively clear terms, implicit in which
was the notion that each order of government generally speak-
ing would be sovereign in the area assigned to it, give or take a
joint jurisdiction.

Following this logic, I think it should be abundantly obvious
that any changes in powers, jurisdictions or areas of operation,
particularly of the creating provinces, should not occur without
the concurrence of those provinces. The resolution before us,
however, is barely consistent with that sort of logic because it
proposes a contrary form of procedure: that which was created
by the BNA Act, namely the central government, now pro-
poses without consultation to set in entrenching concrete limi-
tations on the freedom within which its creators, the provinces,
may act. It has bypassed its creators and purports to legislate
on their behalf affecting property, civil rights and education.

Do you know what I call that, Mr. Speaker? I call it
constitutional cannibalism. The creature has turned on its
creator to dismember it, to consume it piece by piece. This is a
serious change in the structure of Canada and, Mr. Speaker,
Westminster is being asked not only to make the change, but
to condone it. Have we no shame in this country? Are we
unable to stand on our own feet and write our own constitu-
tion? This disposition of the government to bypass the prov-
inces in areas of clearly provincial jurisdiction emerges again
in the amending formula set forth in section 42, because here
we see enunciated the principle that the amendments to the
constitution may, in certain circumstances, be effected through
referenda thereby bypassing again constituted provincial
authorities. This is again a serious change in the federal nature
of Canada and one which gives rise to the deepest misgivings.
The basic constitutional nature of our country is being altered
without consulting the provinces and, therefore, without the
agreement of the provinces; and Westminster is being asked to
condone this change.

If I may move briefly to section 44, again dealing with an
amending procedure, I suggest that here, too, we find a
proposal which upon acceptance would alter Canada funda-
mentally in that it would change the nature of our parliamen-
tary institutions. Section 44 provides, in certain circumstances,
that the House of Commons’ views will prevail whether the
Senate is prepared to go along or not. Westminster is being
asked to put its stamp of approval on this change too. It is
clear to me, therefore, and I hope it is becoming clearer to
others, that this resolution contains not just the one Trojan
horse mentioned by my leader when he spoke on Monday last,
but two. One, and a double one at that-it must be a drome-
dary—a potential threat to the federal nature of our country,
and two, a potential threat to the parliamentary institutions of
this country.

In relation to the second of these, the threat to the Senate, I
draw the attention of the House to a citation from the
Supreme Court in the reference to it in 1978 on this very issue
as it arose out of Bill C-60. Eight justices examining this
matter held the view, and I quote:

The fundamental character of the Senate cannot be altered by unilateral action
by the Parliament of Canada.

That is in the final paragraph of their judgment. What is
Parliament doing if it proceeds along the course it is now
following? It is asking Westminster to do that which unilateral
action by this Parliament is unable to do. I think that is
absolutely disgraceful. I am ashamed.

This is where the whole deal becomes very, very sneaky and
tricky, despite what we hear. Our friends in the government
will say this is not being done by the Parliament of Canada, it
is the parliament of the U.K. that is being asked to do it. To
that, I think the reply should be a second reading from that
ruling, just a little bit earlier in the same paragraph, and I
invite hon. members to read the whole judgment. The assem-
bled judges said:

The character of the Senate was determined by the British parliament in
response to the proposals submitted by the three provinces in order to meet the
requirements of the proposed federal system.

Now we see one order of government proposing that this
fundamental character be altered unilaterally by another par-
liament. I say we have a travesty of law, a shameful travesty
because this government is unwilling and unable to proceed by
an agreed formula toward effecting all these changes. The
Vancouver consensus would make it so simple. It could get
these changes done with that formula. I do not like these
implications at all.

I am fearful first of all that any constitution for this country
built along these lines will inevitably create deeper divisiveness
than now exists. God knows, and I seldom use that word in
public unless I mean it deeply, God knows how deep those
divisions are right now. I am sure the government does not.
The government is completely unaware of how deep they have
made the divisiveness. I suppose the line is somewhere about
Lake of the Woods. From there on they say. “Get rid of that
government, get them out.” l have had little notes sent to me
saying. “Get them out. Don, before they destroy us.”

That is divisiveness. I do not like to be able to repeat that,
but that is the feeling in the west. It is high time those people
over there got wind of it. Apparently the leader in the Senate
is unable to get the message across. He probably does not even
tell them because he is scared.

We have looked at patriation and have found it a travesty.
We have looked at the charter of rights and found it to be an
invasion of provincial jurisdiction without consent. We have
looked at the amending formula and found it to have a double
fault, bypassing the provinces and bypassing the Senate, both
assaults on the fundamental nature of this country which set
out in its course, and I hope it can be made to continue, as a
federal country with a parliamentary system of government.

What about equalization? That is another reason why l
along with a great many other Canadians have very little trust
in the author of this document. I think that underlies a great
deal of it. He may not realize this. I have mentioned it already,
and I feel it needs mentioning again because these warnings
fall on deaf ears. In the west there is a deepseated and genuine
long-standing mistrust of the present Prime Minister. My own
distrust is perhaps more personal, but I know that many share
my doubts.

I ask myself, for example, whether I am prepared to see the
British North America Act patriated, if that is the word, and
entrusted to a man who had the effrontery to state publicly,
and without a blush or backward glance over his own past, as
he did in Winnipeg not too long ago, that a country which has
been through two world wars should be ashamed to send its
constitution to a foreign country for amendment. What utter
balderdash, he above all people uttering even one word about
world wars. He is a great one to be talking.

I must also ask myself whether I am prepared to accept at
face value the patriation and other formulae proposed by a
man who as recently as 1965, before entering the government,
wrote as he did in an article published that year, and I quote:

Our existing constitution… creates a country in which Quebec may call on the
support of nine allies to protect provincial autonomy.

He goes on a couple of lines later:

And this is the constitution our innovators want to change.

That was written by the present Prime Minister and is
published in English in a book entitled “Federalism and
French Canadians”, page 44. I again quote:

Their vision of the Canadian constitution mentioned in the mandate of the
legislative assembly’s constitutional committee—

He was writing a brief for them.

—must be interpreted as taking place ovcr several generations.

That was written in 1965. It is at page 43. Is the present
resolution his first step? Perhaps. Finally, and again I quote:

To my mind, this—

That is, a lack of consensus in Quebec.

—only goes to prove that we must not meddle with the constitution yet.
True, he was talking from no position of power in 1965. He
continues at page 43:

The real danger is that all these constitutional debates will provide an escape
valve for our energies, and useful diversionary tactics for those who fear the
profound social reforms advocated by the progressive clement in our provinces.

l am also concerned when I think of these proposals to
confide Canada’s constitutional future to someone who was
either unprepared, when western civilization including Canada
was being threatened by the Nazi tide, or unwilling to go out
and defend it, but not ashamed to have others defend it for

Mr. Pepin: You said that once already. Why are you
repeating it?

Mr. Munro (Esquimalt-Saanich): No, I did not say that.
Moreover, he did his utmost to persuade his fellow Canadians
to join him in abstaining from that defence.

Mr. Cousineau: How is it possible that you have so much
hatred in your heart?

Mr. Munro (Esquimalt-Saanich): I also wonder whether l
can see my way clear to entrusting my country’s constitution
to someone who, upon becoming Prime Minister, proceeded
almost immediately by pushing through a change in the rules
to emasculate this House and Parliament and reduce the role
of parliamentarians to total ineffectiveness, calling them no-
bodies once they are 100 yards away from the Hill. I also wonder
whether I can put my country’s constitution into the hands ofa
man who did his utmost to get Canada out of NATO and who,
when that failed, allowed our armed strength to dwindle from
100,000 to 80,000, a reduction of 20 per cent and, even then in
a cunning way, deprived those forces of updated equipment
until, as a last resort, all major items had to be ordered at once
at tremendous cost. Is that the sort of a man to whom I want
to entrust the constitution? My answer is no.

I am not even sure that I want to see my country’s future
determined by a man who so diluted and dispirited the public
service, in which I served with pride up to a point, by riding
roughshod over the merit principle, by the appointment of such
favourites as Pitfield and Head, that those who remain either
feel filleted or are hopelessly beholden to him and his form of
government for the preferment and emoluments with which he
has bought their allegiance.

I wonder also about the matter of overlooking 12 Liberal
years of federal fiscal fecklessness which saw increases in
annual budgets from $12 billion to over $50 billion while
deficits have climbed from less then $1 billion to over $15
billion. I say fervently: from men such as this may God soon
deliver us.

Or again, are we ready to trust the ideas of a man who in 12
years has driven the national debt from $16.7 billion to $53.8
billion on which total public debt charges have increased from
about $34 per head of population to over $200? Not necessari-
ly to cap it all, but very nearly, I am not sure I am prepared to
see my country moulded by a man who is ready enough to pay
$38 a barrel to the Arab and Latin American producers, but
begrudges his fellow Canadians an increase beyond $16.75 a
barrel. That is a sad, sad litany. It is not a record to inspire
confidence in one who aspires to create the constitutional
strait-jacket by which we would be bound for the next century.

After all this I am moved to wonder why he is proceeding in
this way when other less confrontational avenues are open, and
I have shown where those avenues lie. Those avenues are there
but he has deliberately avoided them. Why, for example, as I
suggested earlier, has he chosen a modified Victoria formula
when the Vancouver consensus was accepted by all? I suggest
this is confrontation for the sake of confrontation. I am
wondering whether, in fact, having courted and invited rejec-
tion by the premiers, he is inviting rejection by Westminster in
order to say “Ha! I told you, you are just a bunch of colonials.
l will write your constitution for you and I will make this a
republic”, as he said he wanted to do when he spoke to the
students in Montreal. Thank you, Mr. Speaker.

Miss Aideen Nicholson (Trinity): Mr. Speaker, in joining
the debate on this motion I feel I am taking part in a very
important step forward for Canadians.

Those who drafted the British North America Act of 1867
produced a wise and far-seeing document, but much has
happened since then and, as contemporary Canadians in a fast
moving world, we are influenced by events which the Fathers
of Confederation could not have foreseen. Clearly, the majori-
ty of Canadians now wish to have a constitution made in
Canada for contemporary Canada and which can be amended
in Canada.

In fact, on May 9 of this year the House of Commons
approved unanimously a motion proposed and seconded by two
Conservative members from western Canada which called on
Parliament to submit an address to Her Majesty the Queen
requesting “that Her Majesty may graciously be pleased to
cause a bill to be laid before the Parliament of the United
Kingdom to provide for the amendment in Canada of the
Constitution of Canada”.

We may differ sincerely and profoundly on the division of
powers, on an amending formula or on the process but, quite
clearly, there is agreement on patriation itself. The resolution
before us aims at patriation with conditions on which there is
now a fair measure of agreement. The present resolution does
not change the division of powers; it gives no additional powers
to any level of government, but it does enhance the rights of
individual citizens.

The British North America Act of 1867 recognized Cana-
da’s linguistic and cultural duality; 60 per cent of Canadians
then were of British origin and 30 per cent of French origin.
Since then we have seen major changes in our population. In
1971 some 44 per cent of all Canadians were of British origin,
29 per cent of French descent and 27 per cent were of other
ethnic backgrounds. This 27 per cent represented more than
five million Canadians living in all ten provinces. Today,
approximately 30 per cent of the population of Canada is
composed of Canadians of neither French nor Anglo-Celtic

The policy of multiculturalism announced by the Prime
Minister (Mr. Trudeau) in 1971 recognizes the equal contribu-
tions of all Canadians as nation builders. ln 1971 the Prime
Minister said:

National unity, if it is to mean anything in the deeply personal sense, must be
founded on confidence in one’s own individual identity; out of this can grow
respect for that of others and a willingness to share ideas, attitudes and
assumptions. A vigorous policy of multiculturalism will help create this initial
confidence. ll can form the base of a society which is based on fair play for
all . . . A policy of multiculturalism within a bilingual framework is basically the
conscious support of individual freedom of choice. We are free to be ourselves.
But this cannot be left to chance. ll must bc fostered and pursued actively. lf
freedom of choice is in danger for some ethnic groups, it is in danger for all. It is
the policy of this government to eliminate any such danger and to safeguard this

Every one of us or our ancestors emigrated to this country
and together we have created a unique society, a society
benefiting from the sharing of our many cultures, traditions
and backgrounds. It is fundamental to the growth and success
of this country that we live together in a spirit of mutual
respect, understanding and equal opportunity for everyone, no
matter what our race or background. That is why I consider
the enshrining of the charter of human rights in the constitu-
tion essential.

Some have argued that fundamental rights are well protect-
ed by our unwritten traditions of freedom and by the legisla-
tion of provincial governments. At the beginning of this debate
we heard from the Minister of Justice (Mr. Chretien) some of
the compelling arguments which the Canadian Bar Associa-
tion has advanced in favour of enshrining a charter of rights in
the constitution.

The rights and freedoms in the motion before us include not
only human rights such as freedom of conscience and religion,
freedom of thought and expression, freedom of the press,
freedom of peaceful assembly, but also democratic rightsmthe
right to vote and to stand for office regardless of race, national
origin, colour, age or sex.

As late as 1909 a member of the House of Lords in England
described as “momentous and far-reaching” the constitutional
change involved in considering a woman eligible to vote.


Until the privy council of England made a ruling in the
famous case known as the “persons” case, women were con-
sidered under the constitution to be incapable of taking part in
public life.

In 1905, the superior court of British Columbia ruled that a
woman was not a person qualified to become a lawyer in that

ln 1915, in Quebec, during the proceedings launched by a
woman who wanted to be admitted to the Quebec Bar, the
judge stated that to admit a woman to the profession:

—would be nothing less than a crime against public order and an obvious breach
of morality and public decency.

In 1928, five Alberta residents sent a petition to the govern-
ment asking that the superior court rule on whether women
were “qualified persons” to be appointed to the Senate under
the provisions of section 24 of the British North America Act.

The Supreme Court of Canada rejected the concept that
women were persons, but the case was appealed before the
legal committee of the privy council of England. The privy
council accepted the concept and the constitutional law now
includes a provision to this effect.

One of the five women involved in the “persons” case was a
police magistrate who, on more than one occasion, heard
argued in her courtvthe rather interesting proposition that
women are persons in matters of pain and penalties but not
persons in the matter of rights and privileges”.

Those who argue that our rights are sufficiently well pro-
tected by existing law and traditions would do well to stop and
reflect on the severe limitations faced by women even in this
century. We can really take nothing for granted where basic
rights are concerned.

ln Canada, even in this century. laws have been passed
which removed basic human rights from groups of citizens in
different provinces. For example, in the west, Japanese-
Canadians were deprived of their rights. There was suppres-
sion of freedom of religion in Quebec and, more recently, the
right of citizens to seek employment from one province to
another has been limited in Quebec and Newfoundland.

The resolution before the House provides for a Canadian
charter of rights and freedoms binding on Parliament and on
all provincial legislatures and governments. While it is true
that a number of rights and freedoms are provided for by law
now in such federal statutes as the Canadian Human Rights
Act, the Canadian Bill of Rights, the Criminal Code and in
various laws at the provincial level, most of these laws are
subject to change, and the protection legislated today could
theoretically be removed or limited by another enactment in
the future. Entrenching the rights contained in this charter
would place those basic human rights beyond the ordinary
reach of Parliament or a provincial legislature.

l am very pleased to see the concept of mobility rights
included in this charter. All citizens, as a matter of right,
should be free to live and work anywhere in Canada without
discrimination based on the previous province of residence.
The situation which we have seen recently of one province
refusing employment to Canadians who come from another
province is indeed a serious matter. It is understandable,
perhaps, that in times of some economic difficulty people
become self-protective and more narrow and parochial in their
views, but that is all the more reason to have mobility rights
entrenched in the constitution to help us maintain our normal
generous, open characteristics in difficult times and to remind
us that we have one Canadian citizenship, not ten provincial

The practice of using federal revenues to redistribute wealth
to the less advantaged provinces of this country has existed
since 1957, and this equalization principle is also in the motion
before us. Equalization payments are now an established con-
vention established by statute so that basic services to citizens
can be maintained at a comparable level across Canada.
Enshrining the principle of equalization in the constitution is
an important recognition of the Canadian tradition of sharing
our resources and our prosperity just as we share in certain
risks and difficulties.

Parliament and the Government of Canada will have to
respect the principle of equalization as concerns the less
privileged provinces. Both levels of government will have to
undertake to promote equal opportunities among Canadians,
stimulate economic development to reduce disparities and
provide essential public services of a reasonable quality for all

On the question of language rights, the charter uses wording
very similar to that agreed on by the provincial premiers in
Montreal in 1978. The charter will give Canadians the right to
have their children educated in whichever official language is
used by the parents where there are sufficient numbers of the
minority language group to justify a school.

This, of course, is a very important right when viewed in
connection with mobility of workers. If we really want to make
it easier for Québccois to live and work for a few years in other
parts of Canada and for Anglophone Canadians to live and
work in Quebec from time to time, we must make it easier for
people to move their families. Undoubtedly English-speaking
Canadians who move to Quebec will want to improve their
French and will want their children to learn French in order to
take part fully in the social and cultural life of that province.
But if the long-term future of the children is in English-speak-
ing Canada, they will also want to ensure that the children
maintain and build on their knowledge of English.

Obviously one can make comparable statements about the
Quebecker who moves to another province in Canada for a few
years as part of his or her career line progression and who
wants his or her children to maintain their proficiency in
French. Parents may make different choices depending on the
ages of their children, their facility in the second official
language and so forth, but they should have the right of choice
and the educational facilities to make that choice a reality.

An important historical and political reality in our country
is that we have an entire province where a vast majority of the
people speak French. The legal, religious and social institu-
tions of Quebec are primarily of French origin. This French
fact is an important part of Canada, and all of us are richer for

At the same time as we adopted a multiculturalism policy
we adopted the official languages policy. ln thesc twin and
mutually reinforcing policies we were saying that Canada
recognizes the aspirations of all its people to participate fully
in our society. As Canadians we undertook then to ensure that
cultural differences do not bar anyone from full participation.
Not long ago the people of Quebec voted overwhelmingly
against separation and for Canada. Let us now move to ensure
that it is easier for them to work and to be welcomed in all of

We live in an essentially tolerant country, a country in
which human and cultural values matter, a country in which
there is room to accommodate the individuality and legitimate
aspirations of all people. These are important values, impor-
tant enough to enshrine in a constitution.

I said earlier that the motion before us aims at patriation of
the constitution with conditions to which most people agree.
These include, first, a charter of human rights, including
mobility rights and language rights, and second, a commit-
ment to promoting equal opportunities for the well-being of
Canadians and to furthering economic development to reduce
disparity in opportunities.

The rock on which many previous attempts at patriation
have foundcred is, of course, the amending formula. The
proposal before us is that for the first two years after patria-
tion, constitutional amendments should require the consent of
the House of Commons, the Senate and all the provincial
governments. Federal-provincial conferences would continue,
and at the end of two years the amending formula could be
either something new, agreed on by all parties, or the Victoria
charter formula. There is also provision for a national referen-
dum, if necessary. It may not be necessary. I hope that good
will and the Canadian gift for conciliation and civilized com-
promise will carry the day.

Provincial premiers are elected to represent provincial inter-
ests rather than to take positions in the broad national interest,
and they have bargained hard for their own regions. Although
this has sometimes produced incongruous situations over the
past 53 years when ten different prime ministers have tried to
get agreement to patriate the constitution, one cannot fault the
premiers for trying to get maximum advantage at federal-pro-
vincial conferences. Neither can we allow the deadlock to
continue for another 53 years. The 282 members of the House
of Commons are elected to think and work in terms of the
nation as a whole. Many of the speeches we have heard in this
debate have reflected that concern and have also reflected
what we are hearing from our constituents. First, people are
tired of indecision and want the constitution patriated, and
second, people want to see this House deal also with the
economy, with employment and with energy.

The House met a week earlier than planned, and, when this
motion is passed, work on the constitution will continue in
committee over the next three months, so that until the day set
for the committee to report back, the House will indeed be free
to deal with other matters.

I look forward to seeing the constitutional debate continue
in the context of normal, orderly conduct of parliamentary
business. I also trust that the provincial premiers will, in the
best interest of all Canadians, find more areas of agreement
with each other and with the Government of Canada.

Mr. Paul Dick (Lanark-Renfrew-Carleton): Mr. Speaker, it
is with a great deal of pleasure that I enter into the debate on
Canada’s constitution. I first came to the House of Commons
with patriotic feelings, a sense of Canadianship, wanting to
Canadianize some of Canada’s institutions and to Canadianize
Canada’s constitution, and also with a great will and desire to
see Canada’s economy fall much more directly under Canada’s

Many of these things have not taken place, but today we
find that the debate on the constitution which is taking place
in the House does deal with the Canadianization of our
constitution. I note that the Prime Minister (Mr. Trudeau), in
his remarks on Thursday when he first announced the resolu-
tion which was placed before the House, stated in part:

Earlier today, a joint resolution was placed on the order paper of Parliament,
which, if Parliament approves, will provide a key to our future as a nation. The
Speaker has asked that Parliament return on Monday to begin debate on that

That was a week later than we had originally thought we
might come back. The Prime Minister went on to say:

Every member of Parliament from every corner of this land is asked to
participate in this historic act.

The words “historic act” can only mean the debate of this
resolution in Parliament. Fewer than 12 per cent of the
members of Parliament have spoken so far. In fact, as I stand
here speaking, I am the thirty-first member to have taken part
in this debate. In the past, over 60 members of Parliament
have participated in various debates, so I would anticipate
that, at the rate we have been proceeding, this debate will
carry on for a minimum of two or three weeks longer if
everyone in the House speaks.

What has struck me as being fundamental to the debate up
to this stage is the amount of agreement which all Canadians,
including all members of Parliament, have reached. There is a
great deal of agreement, there is consensus, I dare say. I took
the opportunity of looking up the word “consensus” in the
dictionary on the Table, the shorter version of the Oxford
dictionary. It states that consensus in the sense of government
and governing does not require unanimity; consensus is the
majority view.

I think you will find that of the provincial governments, the
government here in Ottawa and the two chambers representing
Parliament, of those 12 institutions, the majority concur. In
fact, I would say that there is more than consensus, that there
is unanimity on the patriation of the constitution. Of course,
this resolution deals with patriation. Second, there is consensus
that there should be patriation with an amending formula. I
think there is consensus, or a majority view, that there should
be an amending formula. The amending formula would not be
the one which is proposed only by the Liberal government in
the House of Commons, which is the Victoria formula. The
majority view which has been expressed by the provinces is
that it should be either the Vancouver or the Alberta-Van-
couver formula.

Should we be so partisan as to insist on our right to
penmanship, or are either of those points of view or formulas
workable? I really think that they are. I think that either one
is workable, although l happen to believe that one is preferable
to the other. The reason I believe that the Vancouver or the
Alberta-Vancouver consensus is preferable is, frankly, that
although I represent a constituency in Ontario which is the
largest province in Canada in population, and although my
constituency borders on the second largest province in Canada
in population, that is Quebec, the two central provinces, l do
not think that either of the two provinces should, for all time,
have a veto. Two hundred years from now the bulk of the
population of Canada might be in Alberta or in British
Columbia. l-low much of the population of the United States
was in California, Oregon and Washington 200 years ago?
This is something we must consider. When we resume debate
on this matter tomorrow, I hope to go into some specifics and
more detail.

May l call it ten o’clock, Mr. Speaker?


Leave a Reply