Canada, House of Commons Debates, “Resolution Respecting Constitution Act”, 32nd Parl, 1st Sess (20 November 1981)


Document Information

Date: 1981-11-20
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 12982-13060.
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COMMONS DEBATES — November 20, 1981

THE CONSTITUTION

RESOLUTION RESPECTING CONSTITUTION ACT, 1981


[Page 12982]

[Translation]

On the Order: Government Notices of Motions.

[Page 12983]

November 18, 1981

The Minister of Justice

THAT, WHEREAS in the past certain amendments to the Constitution of Canada have been made by the Parliament of the United Kingdom at the request and with the consent of Canada;

AND WHEREAS it is in accord with the status of Canada as an independent state that Canadians be able to amend their Constitution in Canada in all respects;

AND WHEREAS it is also desirable to provide in the Constitution of Canada for the recognition of certain fundamental rights and freedoms and to make other amendments to that Constitution;

A respectful address be presented to Her Majesty the Queen in the following words:

To the Queen’s Most Excellent Majesty:
Most Gracious Sovereign:

We, Your Majesty’s loyal subjects, the House of Commons of Canada in Parliament assembled, respectfully approach Your Majesty, requesting that you may graciously be pleased to cause to be laid before the Parliament of the United Kingdom a measure containing the recitals and clauses hereinafter set forth:

[Page 12984]

SCHEDULE A

An Act to give effect to a request by the Senate and House of Commons of Canada

Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that purpose.

Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. The Constitution Act, 1981 set out in Schedule B to this Act is hereby enacted for and shall have the force of law in Canada and shall come into force as provided in that Act.

2. No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1981 comes into force shall extend to Canada as part of its law.

3. So far as it is not contained in Schedule B, the French version of this Act is set out in Schedule A to this Act and has the same authority in Canada as the English version thereof.

4. This Act may be cited as the Canada Act.

[Page 12985]

SCHEDULE B

CONSTITUTION ACT, 1981

PART I

CANADIAN CHARTER OF RIGHTS AND
FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Guarantee of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

Democratic Rights

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House

[Page 12986]

of Commons or the legislative assembly, as the case may be.

5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Mobility Rights

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.

(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

(4) Subsections (2) and (3) do not preclude any law, program or activity that hasas its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

Legal Rights

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[Page 12987]

10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

11. Any person charged with an offence as the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

[Page 12988]

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Official Languages of Canada

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the

[Page 12989]

legislature and government of New Brunswick.

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.

(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French are both language versions are equally authoritative.

19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
(a) there is a significant demand for communications with and services from that office in such language; or

[Page 12990]

(b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

Minority Language Educational Rights

23. (1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,
have the right to have their children receive primary and secondary school instruction in that language in that province.

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

[Page 12991]

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province
(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

Enforcement

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

General

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been reocgnized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.

26. The guarantee in this Charter of certain rights and freedoms shall not be con-

[Page 12992]

strued as denying the existence of any other rights or freedoms that exist in Canada.

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

28. Notwithstanding anything in this Charter except section 33, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.

31. Nothing in this Charter extends the legislative powers of any body or authority.

Application of Charter

32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of

[Page 12993]

this Charter, or section 28 of this Charter in its application to discrimination based on sex referred to in section 15.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1). 15 paragraphe (1).

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Citation

34. This Part may be cited as the Canadian Charter of Rights and Freedoms.

PART II

EQUALIZATION AND REGIONAL DISPARITIES

35. (1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to
(a) promoting equal opportunities for the well-being of Canadians;
(b) furthering economic development to reduce disparity in opporunities; and
(c) providing essential public services of reasonable quality to all Canadians.

(2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.

[Page 12994]

PART III

CONSTITUTIONAL CONFERENCE

36. (1) A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within one year after this Part comes into force.

(2) The conference convened under subsection (1) shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item.

(3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of the conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.

PART IV

PROCEDURE FOR AMENDING
CONSTITUTION OF CANADA

37. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and House of Commons;
(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

(2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or gov-

[Page 12995]

ernment of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).

(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.

(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.

38. (1) A proclamation shall not be issued under subsection 37(1) before the expiration of one year from the adoption of the resolution initiating the amendment procedure thereunder, unless the legislative assembly of each province has previously adopted a resolution of assent or dissent.

(2) A proclamation shall not be issued under subsection 37(1) after the expiration of three years from the adoption of the resolution initiating the amendment procedure thereunder.

39. Where an amendment is made under subsection 37(1) that transfers provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does not apply.

40. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;

[Page 12996]

(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;
(c) subject to section 42, the use of the English or the French language;
(d) the composition of the Supreme Court of Canada; and
(e) an amendment to this Part.

41. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 37(1):
(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;
(b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;
(d) subject to paragraph 40(d), the Supreme Court of Canada;
(e) the extension of existing provinces into the territories; and
(f) notwithstanding any other law or practice, the establishment of new provinces.

(2) Subsections 37(2) to (4) do not apply in respect of amendments in relation to matters referred to in subsection (1).

42. An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including
(a) any alteration to boundaries between provinces, and
(b) any amendmem to any provision that relates to the use of the English or the French language within a province,
may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons

[Page 12997]

and of the legislative assembly of each province to which the amendment applies.

43. Subject to sections 40 and 41, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

44. Subject to section 40, the legislature of each province may exclusively make laws amending the constitution of the province.

45. (1) The procedures for amendment under sections 37, 40, 41 and 42 may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province.

(2) A resolution of assent made for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it.

46. (1) An amendment to the Constitution of Canada made by proclamation under section 37, 40, 41 or 42 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.

(2) Any period when Parliament is prorogued or dissolved shall not be counted in computing the one hundred and eighty day period referred to in subsection (1).

47. The Queen’s Privy Council for Canada shall advise the Governor General to issue a proclamation under this Part forthwith on the adoption of the resolutions required for an amendment made by proclamation under this Part.

48. A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part.

[Page 12998]

PART V

AMENDMENT TO THE CONSTITUTION ACT,
1867

49. The Constitution Act, 1867 (formerly named the British North America Act, 1867) is amended by adding thereto, immediately after section 92 thereof, the following heading and section:

Non-Renewable Natural Resources,
Forestry Resources and Electrical Energy

92A. (1) In each province, the legislature may exclusively make laws in relation to
(a) exploration for non-renewable natural resources in the province;
(b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and
(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.

(2) In each province, the legislature may make laws in relation to the export from the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.

(3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict.

[Page 12999]

(4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of
(a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and
(b) sites and facilities in the province for the generation of electrical energy and the production therefrom,
whether or not such production is exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.

(5) The expression “primary production” has the meaning assigned by the Sixth Schedule.

(6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section.”

50. The said Act is further amended by adding thereto the following Schedule:

“THE SIXTH SCHEDULE

Primary Production from Non-Renewable
Natural Resources and Forestry Resources

1. For the purposes of section 92A of this Act,
(a) production from a non-renewable natural resource is primary production therefrom if
(i) it is in the form in which it exists upon its recovery or severance from its natural state, or

[Page 13000]

(ii) it is a product resulting from processing or refining the resource, and is not a manufactured product or a product resulting from refining crude oil, refining upgraded heavy crude oil, refining gases or liquids derived from coal or refining a synthetic equivalent of crude oil; and
(b) production from a forestry resource is primary production therefrom if it consists of sawlogs, poles, lumber, wood chips, sawdust or any other primary wood product, or wood pulp, and is not a product manufactured from wood.”

PART VI

GENERAL

51. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(2) The Constitution of Canada includes
(a) the Canada Act, including this Act;
(b) the Acts and orders referred to in Schedule 1; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).

(3) Amendments to the Constitution of Cam, Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

52. (1) The enactments referred to in Column I of Schedule I are hereby repealed or amended to the extent indicated in Column II thereof and, unless repealed, shall continue as law in Canada under the names set out in Column III thereof.

(2) Every enactment, except the Canada Act, that refers to an enactment referred to in Schedule I by the name in Column I thereof is hereby amended by substituting for that name the corresponding name in Column III thereof, and any British North America Act not referred to in Schedule I may be cited as the Constitution Act fol-

[Page 13001]

lowed by the year and number, if any, of its enactment.

53. Part III is repealed on the day that is one year after this Part comes into force and this section may be repealed and this Act renumbered, consequential upon the repeal of Part III and this section, by proclamation issued by the Governor General under the Great Seal of Canada.

54. A French version of the portions of the Constitution of Canada referred to in Schedule I shall be prepared by the Minister of Justice of Canada as expeditiously as possible and, when any portion thereof sufficient to warrant action being taken has been so prepared, it shall be put forward for enactment by proclamation issued by the Governor General under the Great Seal of Canada pursuant to the procedure then applicable to an amendment of the same provisions of the Constitution of Canada.

55. Where any portion of the Constitution of Canada has been or is enacted in English and French or where a French version of any portion of the Constitution is enacted pursuant to section 54, the English and French versions of that portion of the Constitution are equally authoritative.

56. The English and French versions of this Act are equally authoritative.

57. Subject to section 58, this Act shall come into force on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

58. (1) Paragraph 23(l)(a) shall come 58 into force in respect of Quebec on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

(2) A proclamation under subsection (1) shall be issued only where authorized by the legislative assembly or government of Quebec.

[Page 13002]

(3) This section may be repealed on the day paragraph 23(1)(a) comes into force in respect of Quebec and this Act amended and renumbered, consequential upon the repeal of this section, by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

59. This Act may be cited as the Constitution Act, 1981, and the Constitution Acts 1867 to 1975 (No. 2) and this Act may be cited together as the Constitution Acts, 1867 to 1981.

[Page 13003]

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[Pages 13004-13111]

SCHEDULE I

to the

CONSTITUTION ACT, 1981

MODERNIZATION OF THE CONSTITUTION

Item
Column I
Act Affected
Column II
Amendment
Column III
New Name
1. British North America Act, 1867,
30-31 Vict.,c. 3 (U.K.)
(1) Section 1 is repealed and the following substituted therefor:
“1. This Act may be cited as the Constitution Act, 1867.”
(2) Section 20 is repealed.
(3) Class 1 of section 91 is repealed.
(4) Class 1 of section 92 is repealed.
Constitution Act, 1867
2. An Act to amend and continue the
Act 32-33 Victoria chapter 3; and to
establish and provide for the Government of the Province of Manitoba, 1870, 33 Vict., c. 3 (Can.)

(1) The long title is repealed
and the following substituted
therefor:
Manitoba Act, 1870.”
(2) Section 20 is repealed.

Manitoba Act, 1870
3. Order of Her Majesty in Council
admitting Rupert’s Land and the
North-Western Territory into the
union, dated the 23rd day of June,
1870

Rupert’s Land and North-Western Territory Order
4. Order of Her Majesty in Council
admitting British Columbia into the
Union, dated the 16th day of May,
1871
British Columbia Terms of Union
5. British North America Act, 1871.
34-35 Vict., c. 28 (U.K.)
Section 1 is repealed and the
following substituted therefor:
“1. This Act may be cited as
the Constitution Act, 1871.”
Constitution Act, 1871
6. Order of Her Majesty in Council
admitting Prince Edward Island into
the Union, dated the 26th day of
June, 1873
Prince Edward Island Terms of Union
7. Parliament of Canada Act, 1875,
38-39 Vict., C. as (U.K.)
Parliament of Canada Act, 1875
8. Order of Her Majesty in Council
admitting all British possessions and
Territories in North America and
islands adjacent thereto into the
Union, dated the 31st day of July,
1880
Adjacent Territories Order
9. British North America Act, 1886,
49-50 Vict., c. 35 (U.K.)
Section 3 is repealed and the
following substituted therefor:
“3. This Act may be cited as
the Constitution Act, 1886.”
Constitution Act, 1886
10. Canada (Ontario Boundary) Act,
1889, 52-53 Vict., c. 28 (U.K.)
Canada (Ontario Boundary) Act, 1889
11. Canadian Speaker (Appointment of
Deputy) Act, 1895, 2nd Sess., 59
Vict., c. 3 (U.K.)
The Act is repealed.
12. The Alberta Act, 1905, 4-5 Edw.
VII, c. 3 (Can.)
Alberta Act
13. The Saskatchewan Act, 1905, 4-5
Edw. VII, c. 42 (Can.)
Saskatchewan Act
14. British North America Act, 1907, 7
Edw.VI1, c. 11 (U.K.)
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act, 1907.”
Constitution Act, 1907
15. British North America Act, 1915,
5-6 Geo. V, c. 45 (U.K.)
Section 3 is repealed and the
following substituted therefor:
“3. This Act may be cited as
the Constitution Act, 1915.”
Constitution Act, 1915
16. British North America Act, 1930,
20-21 Geo. V, c. 26 (U.K.)
Section 3 is repealed and the
following substituted therefor:
“3. This Act may be cited as
the Constitution Act, 1930.”
Constitution Act, 1930
17. Statute of Westminster, 1931, 22
Geo. V, c. 4 (U.K.)
In so far as they apply to
Canada,
(a) section 4 is repealed; and
(b) subsection 7(1) is repealed.
Statute of Westminster, 1931
18. British North America Act, 1940,
3-4 Geo. VI, c. 36 (U.K.)
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act, 1940.”
Constitution Act, 1940
19. British North America Act, 1943,
6-7 Geo. VI, c. 30 (U.K.)
The Act is repealed.
20. British North America Act, 1946,
9-10 Geo. V1, c. 63 (U.K.)
The Act is repealed.
21. British North America Act, 1949,
12-13 Geo. VI, c. 22 (U.K.)
Section 3 is repealed and the Newfoundland Act
following substituted therefor:
“3. This Act may be cited as
the Newfoundland Act.”
Newfoundland Act
22. British North America (No. 2) Act,
1949, 13 Geo. VI, c. 81 (U.K.)
The Act is repealed.
23. British North America Act, 1951,
14-15 Geo. V1, c. 32 (U.K.)
The Act is repealed.
24. British North America Act, 1952, 1
Eliz. II, c. 15 (Can.)
The Act is repealed.
25. British North America Act, 1960, 9
Eliz. II, c. 2 (U.K.)
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act, 1960.”
Constitution Act, 1960
26. British North America Act, 1964,
12-13 Eliz. II, c. 73 (U.K.)
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act, 1964.”
Constitution Act, 1964
27. British North America Act, 1965,
14 Eliz. II, c. 4, Part I (Can.)
Section 2 is repealed and the
following substituted therefor:
“2. This Part may be cited as
the Constitution Act, 1965.”
Constitution Act, 1965
28. British North America Act, 1974,
23 Eliz. II, c. 13, Part I (Can.)
Section 3, as amended by
25-26 Eliz. II, C. 28, s. 38(1)
(Can.) is repealed and the following substituted therefor:
“3. This Part may be cited as
the Constitution Act, 1974.”
Constitution Act, 1974
29. British North America Act, 1975,
23-24 Eliz. II, c. 28, Part I (Can.)
Section 3, as amended by
25-26 Eliz. II, c. 28, s. 31 (Can.)
is repealed and the following substituted therefor:
“3. This Part may be cited as
the Constitution Act (N0. I ),
1975
.”
Constitution Act (No. 1), 1975
30. British North America Act (No. 2),
1975, 23-24 Eliz. II, c. 53 (Can.)
Section 3 is repealed and the
following substituted therefor:
“3. This Act may be cited as
the Constitution Act (No. 2),
1975
.”
Constitution Act (No. 2), 1975

[Page 13012]

Madam Speaker: The notice of motion is transferred to government orders and ordered for consideration later today or at the next sitting of the House, in accordance with the provisions of Standing Order 21(2).


THE CONSTITUTION

RESOLUTION RESPECTING CONSTITUTION ACT, 1981

[Page 13013]

[English]

Hon. Jean Chrétien (Minister of Justice and Minister of State for Social Development) moved:

[Page 13014]

THAT, WHEREAS in the past certain amendments to the Constitution of Canada have been made by the Parliament of the United Kingdom at the request and with the consent of Canada;

AND WHEREAS it is in accord with the status of Canada as an independent state Canada, that Canadians be able to amend their Constitution in Canada in all respects;

AND WHEREAS it is also desirable to provide in the Constitution of Canada for the recognition of certain fundamental rights and freedoms and to make other amendments to that Constitution;

A respectful address be presented to Her Majesty the Queen in the following words:

To the Queen’s Most Excellent Majesty:
Most Gracious Sovereign:

We, Your Majesty’s loyal subjects, the House of Commons of Canada in Parliament assembled, respectfully approach Your Majesty, requesting that you may graciously be pleased to cause to be laid before the Parliament ofthe United Kingdom a measure containing the recitals and clauses hereinafter set forth:

[Page 13015]

An Act to give effect to a request by the Senate and House of Commons of Canada

Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that purpose.

Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. The Constitution Act, 1981 set out in Schedule B to this Act is hereby enacted for and shall have the force of law in Canada and shall come into force as provided in that Act.

2. No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1981 comes into force shall extend to Canada as part of its law.

3. So far as it is not contained in Schedule B, the French version of this Act is set out in Schedule A to this Act and has the same authority in Canada as the English version thereof.

4. This Act may be cited as the Canada Act.

[Page 13016]

SCHEDULE B

CONSTITUTION ACT, 1981

PART 1

CANADIAN CHARTER OF RIGHTS AND
FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Guarantee of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

Democratic Rights

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House

[Page 13017]

of Commons or the legislative assembly, as the case may be.

5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Mobility Rights

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
(a) to move to and take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.

(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

Legal Rights

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[Page 13018]

10. Everyone has the right on arrest or detention
(a) to be informed promptly of the rea- sons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

11. Any person charged with an offence as the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

[Page 13019]

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Official Languages of Canada

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the

[Page 13020]

legislature and government of New Brunswick.

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.

(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government ofCanada in English or French, and has the same right with respect to any other office of any such institution where
(a) there is a significant demand for communications with and services from that office in such language; or

[Page 13021]

(b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

Minority Language Educational Rights

23. (1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,
have the right to have their children receive primary and secondary school instruction in that language in that province.

(2) Citizens of Canada of whom any child has received or is receiving primary or a secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

[Page 13022]

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province
(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and
(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

Enforcement

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

General

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement.

26. The guarantee in this Charter of certain rights and freedoms shall not be con-

[Page 13023]

strued as denying the existence of any other rights or freedoms that exist in Canada.

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

28. Notwithstanding anything in this Charter except section 33, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.

31. Nothing in this Charter extends the legislative powers of any body or authority.

Application of Charter

32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories;
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of

[Page 13024]

this Charter, or section 28 of this Charter in its application to discrimination based on sex referred to in section 15.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Citation

34. This Part may be cited as the Canadian Charter of Rights and Freedoms.

PART II

EQUALIZATION AND REGIONAL DISPARITIES

35. (1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to
(a) promoting equal opportunities for the well-being of Canadians;
(b) furthering economic development to reduce disparity in opportunities; and
(c) providing essential public services of reasonable quality to all Canadians.

(2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.

[Page 13025]

PART III

CONSTITUTIONAL CONFERENCE

36. (1) A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within one year after this Part comes into force.

(2) The conference convened under subsection (1) shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item.

(3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of the conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.

PART IV

PROCEDURE FOR AMENDING
CONSTITUTION OF CANADA

37. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and House of Commons; and
(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

(2) An amendment made under subsection (2) (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or gov-

[Page 13026]

ernment of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).

(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.

(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.

38. (1) A proclamation shall not be issued under subsection 37(1) before the expiration of one year from the adoption of the resolution initiating the amendment procedure thereunder, unless the legislative assembly of each province has previously adopted a resolution of assent or dissent.

(2) A proclamation shall not be issued under subsection 37(1) after the expiration of three years from the adoption of the resolution initiating the amendment procedure thereunder.

39. Where an amendment is made under subsection 37(1) that transfers provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does not apply.

40. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;

[Page 13027]

(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;
(c) subject to section 42, the use of the English or the French language;
(d) the composition of the Supreme Court of Canada; and
(e) an amendment to this Part.

41. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 37(1):
(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada; Canada;
(b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;
(d) subject to paragraph 40(d), the Supreme Court of Canada;
(e) the extension of existing provinces into the territories;
(f) notwithstanding any other law or practice, the establishment of new provinces.

(2) Subsections 37(2) to (4) do not apply in respect of amendments in relation to matters referred to in subsection (1).

42. An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including
(a) any alteration to boundaries between provinces and
(b) any amendment to any provision that relates to the use of the English or the French language within a province,
may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons

[Page 13028]

and of the legislative assembly of each province to which the amendment applies.

43. Subject to sections 40 and 41, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

44. Subject to section 40, the legislature of each province may exclusively make laws amending the constitution of the province.

45. (1) The procedures for amendment under sections 37, 40, 41 and 42 may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province.

(2) A resolution of assent made for the purposes of this Part may be revoked at any time before the issue of a proclamation authorized by it.

46. (1) An amendment to the Constitution of Canada made by proclamation under section 37, 40, 41 or 42 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution.

(2) Any period when Parliament is prorogued or dissolved shall not be counted in computing the one hundred and eighty day period referred to in subsection (1).

47. The Queen’s Privy Council for Canada shall advise the Governor General to issue a proclamation under this Part forthwith on the adoption of the resolutions required for an amendment made by proclamation under this Part.

48. A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part.

[Page 13029]

PART V

AMENDMENT TO THE CONSTITUTION ACT,
1867

49. The Constitution Act, 1867 (formerly named the British North America Act, 1867) is amended by adding thereto, immediately after section 92 thereof, the following head- ing and section:

“Non-Renewable Natural Resources,
Forestry Resources and Electrical Energy

92A. (1) In each province, the legislature may exclusively make laws in relation to
(a) exploration for non-renewable natural resources in the province;
(b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and
(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.

(2) In each province, the legislature may make laws in relation to the export from the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.

(3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict.

[Page 13030]

(4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of
(a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and
(b) sites and facilities in the province for the generation of electrical energy and the production therefrom,
whether or not such production is exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.

(5) The expression “primary production” has the meaning assigned by the Sixth Schedule.

(6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section.”

50. The said Act is further amended by adding thereto the following Schedule:

“THE SIXTH SCHEDULE

Primary Production from Non-Renewable
Natural Resources and Forestry Resources

1. For the purposes of section 92A of this Act,
(a) production from a non-renewable natural resource is primary production therefrom if
(i) it is in the form in which it exists upon its recovery or severance from its natural state, or

[Page 13031]

(ii) it is a product resulting from processing or refining the resource, and is not a manufactured product or a product resulting from refining crude oil, refining upgraded heavy crude oil, refining gases or liquids derived from coal or refining a synthetic equivalent of crude Oil; and
(b) production from a forestry resource is primary production therefrom if it consists of sawlogs, poles, lumber, wood chips, sawdust or any other primary wood product, or wood pulp, and is not a product manufactured from wood.”

PART VI

GENERAL

51. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(2) The Constitution of Canada includes
(a) the Canada Act, including this Act;
(b) the Acts and orders referred to in Schedule I; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).

(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

52. (1) The enactments referred to in Column I of Schedule I are hereby repealed or amended to the extent indicated in Column II thereof and, unless repealed, shall continue as law in Canada under the names set out in Column III thereof.

(2) Every enactment, except the Canada Act, that refers to an enactment referred to in Schedule I by the name in Column I thereof is hereby amended by substituting for that name the corresponding name in Column III thereof, and any British North America Act not referred to in Schedule I may be cited as the Constitution Act fol-

[Page 13032]

lowed by the year and number, if any, of its enactment.

53. Part III is repealed on the day that is one year after this Part comes into force and this section may be repealed and this Act renumbered, consequential upon the repeal of Part III and this section, by proclamation issued by the Governor General under the Great Seal of Canada.

54. A French version of the portions of the Constitution of Canada referred to in Schedule I shall be prepared by the Minister of Justice of Canada as expeditiously as possible and, when any portion thereof sufficient to warrant action being taken has been so prepared, it shall be put forward for enactment by proclamation issued by the Governor General under the Great Seal of Canada pursuant to the procedure then applicable to an amendment of the same provisions of the Constitution of Canada.

55. Where any portion of the Constitution of Canada has been or is enacted in English and French or where a French version of any portion of the Constitution is enacted pursuant to section 54, the English and French versions of that portion of the Constitution are equally authoritative.

56. The English and French versions of this Act are equally authoritative.

57. Subject to section 58, this Act shall come into force on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

58. (1) Paragraph 23(1)(a) shall come into force in respect of Quebec on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

(2) A proclamation under subsection (1) shall be issued only where authorized by the legislative assembly or government of Quebec.

[Page 13033]

(3) This section may be repealed on the day paragraph 23(1)(a) comes into force in respect of Quebec and this Act amended and renumbered, consequential upon the repeal of this section, by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

59. This Act may be cited as the Constitution Act, 1981, and the Constitution Acts 1867 to 1975 (No. 2) and this Act may be cited together as the Constitution Acts, 1867 to 1981.

[Pages 13034-41]

SCHEDULE 1

to the

CONSTITUTION ACT, 1981

MODERNIZATION OF THE CONSTITUTION





Item
Column I
Act Affected
Column II
Amendment
Column III
New Name
1. British North America Act, 1867,
30-31 Vict., c. 3 (U.K.)
(1) Section 1 is repealed and
the following substituted therefor:
“1. This Act may be cited as
the Constitution Act, 1867.”
(2) Section 20 is repealed.
(3) Class 1 of section 91 is
repealed.
(4) Class 1 of section 92 is
repealed.
Constitution Act, 1867
2. An Act to amend and continue the
Act 32-33 Victoria chapter 3; and to
establish and provide for the Government of the Province of Manitoba, 1870, 33 Vict., c. 3 (Can.)
(1) The long title is repealed
and the following substituted
therefor:
Manitoba Act, 1870.”
(2) Section 20 is repealed.
Manitoba Act, 1870
3. Order of Her Majesty in Council
admitting Rupert’s Land and the
North-Western Territory into the
union, dated the 23rd day of June,
1870
Rupert’s Land and North-Western Territory Order
4. Order of Her Majesty in Council
admitting British Columbia into the
Union, dated the 16th day of May,
1871
British Columbia Terms of Union
5. British North America Act, 1871,
34-35 Vict., c. 28 (U.K.)
Section 1 is repealed and the
following substituted therefor:
“1. This Act may be cited as
the Constitution Act, 1871.”
Constitution Act, 1871
6. Order of Her Majesty in Council
admitting Prince Edward Island into
the Union, dated the 26th day of
June, 1873
Prince Edward Island Terms of
Union
7. Parliament of Canada Act, 1875,
38-39 Vict., c. 38 (U.K.)
Parliament of Canada Act, 1875
8. Order of Her Majesty in Council
admitting all British possessions and
Territories in North America and
islands adjacent thereto into the
Union, dated the 31st day of July,
1880
Adjacent Territories Order
9. British North America Act, 1886,
49-50 Vict., c. 35 (U.K.)
Section 3 is repealed and the Constitution Act, 1886
following substituted therefor:
“3. This Act may be cited as
the Constitution Act, 1886.”
Constitution Act, 1886
10. Canada (Ontario Boundary) Act,
1889, 52-53 Vict., c. 28 (U.K.)
Canada (Ontario Boundary) Act
1889
11. Canadian Speaker (Appointment of
Deputy) Act, 1895, 2nd Sess., 59
Vict., c. 3 (U.K.)
The Act is repealed.
12. The Alberta Act, 1905, 4-5 Edw.
VII, c. 3 (Can.)
Alberta Act
13. The Saskatchewan Act, 1905, 4-5
Edw. VII, c. 42 (Can.)
Saskatchewan Act
14. British North America Act, 1907, 7
Edw. VII, c. 11 (U.K.)
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act, 1907.”
Constitution Act, 1907
15. British North America Act, 1915,
5-6 Geo. V, c. 45 (U.K.)
Section 3 is repealed and the
following substituted therefor:
“3. This Act may be cited as
the Constitution Act, 1915.”
Constitution Act, 1915
16. British North America Act, 1930,
20-21 Geo. V, c. 26 (U.K.)
Section 3 is repealed and the
following substituted therefor:
“3. This Act may be cited as
the Constitution Act, 1930.”
Constitution Act, 1930
17. Statute of Westminster, 1931, 22
Geo. V, c. 4 (U.K.)
In so far as they apply to
Canada,
(a) section 4 is repealed; and
(b) subsection 7(1) is
repealed.
Statute of Westminster, 1931
18. British North America Act, 1940,
3-4 Geo. VI, c. 36 (U.K.)
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act, 1940.”
Constitution Act, 1940
19. British North America Act, 1943,
6-7 Geo. VI, c. 30 (U.K.)
The Act is repealed.
20. British North America Act, 1946,
9-10 Geo. VI, c. 63 (U.K.)
The Act is repealed.
21. British North America Act, 1949,
12-13 Geo. VI, c. 22 (U.K.)
Section 3 is repealed and the Newfoundland Act
following substituted therefor:
“3. This Act may be cited as
the Newfoundland Act.”
Newfoundland Act
22. British North America (No. 2) Act,
1949, 13 Geo. VI, c. 81 (U.K.)
The Act is repealed.
23. British North America Act, 1951,
14-15 Geo. VI, c. 32 (U.K.)
The Act is repealed.
24. British North America Act, 1952, I
Eliz. II, c. 15 (Can.)
The Act is repealed.
25. British North America Act, 1960, 9
Eliz. II, c. 2 (U.K.)
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act, 1960.”
Constitution Act, 1960
26. British North America Act, 1964,
12-13 Eliz. II. c. 73 (U.K.)
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act, 1964.”
Constitution Act, 1964
27. British North America Act, 1965,
14 Eliz. II, c. 4, Part I (Can.)
Section 2 is repealed and the
following substituted therefor:
“2. This Part may be cited as
the Constitution Act, 1965.”
Constitution Act, 1965
28. British North America Act, 1974,
23 Eliz. II, c. 13, Part I (Can.)
Section 3, as amended by
25-26 Eliz. II, c. 28, s. 38(1)
(Can.) is repealed and the following substituted therefor:
“3. This Part may be cited as
the Constitution Act, 1974.”
Constitution Act, 1974
29. British North America Act, 1975,
23-24 Eliz. 11, C. 2s, Part 1 (Can.)
Section 3, as amended by
25-26 Eliz. II, c. 28, s. 31 (Can.)
is repealed and the following substituted therefor:
“3. This Part may be cited as
the Constitution Act (No. 1),
1975
.”
Constitution Act (No. 1), 1975
30. British North America Act (No. 2),
1975, 23-24 Eliz. 11, C. ss (Can.)
Section 3 is repealed and the
following substituted therefor:
“3. This Act may be cited as
the Constitution Act (No. 2),
1975
.”
Constitution Act (No. 2), 1975

[Page 13042]

He said: Madam Speaker, in introducing the resolution preceding confederation in the Parliament of Canada, Sir John A. Macdonald stated:

The whole scheme of confederation, as propounded by the conference, as agreed to and sanctioned by the Canadian government, and as now presented for the consideration of the people and the legislature, bears upon its face the marks of compromise. Of necessity there must have been a great deal of mutual concession. If we had not felt that we were bound to set aside our private opinions on matters of detail, if we had not felt ourselves bound to look at what was practicable, not obstinately rejecting the opinions of others nor adhering to our own; if we had not met in a spirit of conciliation, we never would have succeeded.

It is with pride that I am able today to introduce a constitutional resolution supported by all governments who believe in a strong and united Canada.

Some hon. Members: Hear, hear!

Mr. Chrétien: The resolution before this House is the product of a consensus among governments; but, equally important, it reflects the values, aspirations, the hopes and dreams of an overwhelming majority of Canadians.

Before I explain the content of the resolution, I want to pay tribute to the members of my caucus and to my colleagues in the cabinet for their collaboration, their advice and their total support over the last 18 months. I want to pay a particular tribute to the Prime Minister (Mr. Trudeau) for this historic achievement.

Some hon. Members: Hear, hear!

Mr. Chrétien: I want to thank other members of the House of Commons for their constructive advice and support. I want also to pay tribute to my colleagues in provincial governments who worked hard to achieve consensus two weeks ago. I want to thank the thousands of Canadians who contributed so much to the work of the parliamentary committee. And I want to point out to Canadians the role of the Leader of the Opposition (Mr. Clark), who spent a year telling us that process is more important than substance. I am sure that in this debate he will criticize the substance resulting from the process.

Some hon. Members: Oh, oh!

Mr. Chrétien: In 1865, George Brown told the Parliament of Canada:

The whole great ends of this confederation may not be realized in the lifetime of many who now hear me. We imagine not that such a structure can be built in a month or in a year. What we propose now is but to lay the foundations of the structure, to set in motion the governmental machinery that will one day, we trust, extend from the Atlantic to the Pacific.

Today we have the opportunity to complete and expand that structure. The resolution before this House provides for the patriation of the Constitution. After 114 years, Canada will finally have achieved its full legal independence. No longer will it be necessary to go to the Parliament of another country to amend our Constitution.

[Translation]

The resolution provides as well for an amending formula, that is, a mechanism which will enable us to make future changes to our Constitution. This is extremely important because today marks the end of one stage of constitutional reform and the beginning of another. The second stage of constitutional reform will deal with changes in our national institutions so that there is better regional input in the workings of the national government; it will deal with the securing of the Canadian economic union and with the division of powers.

Of course it will deal with the constitutional recognition of the rights of our native peoples. I am anxious that this process get underway as soon as possible because it is part of our commitment not only to the people of Quebec and to native peoples but to all Canadians.

An amending formula makes that process easier. The resolution provides that in the future, amendments to the constitution will be made with the approval of seven provinces representing fifty per cent of the population. If, however, an amendment takes away provincial powers, privileges or proprietary rights, it will not apply in a province whose legislature expresses its dissent. I will speak later about the issue of fiscal compensation for those provinces which opt out.

For a few matters including the monarchy, the composition of the Supreme Court, and certain language rights, the consent of Parliament and all provincial legislatures will be required.

[English]

I want now to turn to the Charter of Rights and Freedoms. It is important at the outset to understand that the entire Charter of Rights and Freedoms will be entrenched in the Constitution and that no province will be able to opt out of any provision of the charter. The agreement signed by the Prime Minister and nine Premiers does not emasculate the charter. Democratic rights, fundamental freedoms, mobility rights, legal rights, equality rights and language rights are all enshrined in the Constitution and apply across the land.

What the Premiers and the Prime Minister agreed to is a safety valve which is unlikely ever to be used except in non-controversial circumstances by Parliament or legislatures to override certain sections of the charter. The purpose of an override clause is to provide the flexibility that is required to ensure that legislatures rather than judges have the final say on important matters of public policy.

The override clause in the Charter of Rights and Freedoms will require that a law state specifically that part or all of it

[Page 13043]

applies, notwithstanding a particular section of the charter in the Constitution. Such an override automatically expires after five years unless specifically renewed by a legislature. The effect of this provision is, first, that it will be politically very difficult for a government to introduce without very good reason a measure which applies notwithstanding the Charter of Rights and Freedoms in the Constitution. Second, a sunset provision of five years provides a degree of control on the use of an override clause in allowing public debate on the desirability of continuing the deliberations further.

It is important to remember that the concept of an override clause is not new in Canada. Experience has demonstrated that such a clause is rarely used and, when used, it is usually not controversial. The Alberta bill of rights was enacted in 1972 and includes an override clause. The Saskatchewan human rights code of 1979 also has an override provision. Neither has ever been used.

The Canadian Bill of Rights, enacted in 1960 by Mr. Diefenbaker, also contains an override provision. In 20 years, it has only been used once.

The Quebec charter of rights and freedoms adopted in 1975 contains an override clause which has been used several times. However, it has never successfully been used in a controversial manner. What is interesting in the Quebec experience is that the first draft of Bill lOl would have applied notwithstanding the Quebec charter of rights and freedoms. In this controversial area public pressure forced the Quebec government to delete the clause from the bill.

It is because of the history of the use of the override clause and because of the need for a safety valve to correct absurd situations without going through the difficulty of obtaining constitutional amendments that three leading civil libertarians have welcomed its inclusion in the Charter of Rights and Freedoms.

Allan Borovoy, general counsel to the Canadian Civil Liberties Association, was quoted in the Montreal Gazette of November 7 as saying: “Our reaction is one of great relief. They did not emasculate the charter.” He went on to say:

The process is a rather ingenious marriage of a bill of rights notion and a parliamentary democracy. The result is a strong charter with an escape valve for the legislatures. The “notwithstanding” clause will be a red flag for opposition parties and the press. That will make it politically difficult for a government to override the Charter. Political diffieulty is a reasonable safeguard for the charter.

Gordon Fairweather, who is well known in this House and is the Commissioner of the Canadian Human Rights Commission, said this: “I’m in no mood for nitpicking today; I’m feeling tremendously upbeat”. That quote is from the Montreal Gazette, November 7, 1981. Mr. Fairweather said that the override clause will become as dead from lack of use as a clause in the British North America Act that, at least in theory, still enables Ottawa to disallow provincial legislation. Referring to long standing provincial opposition to entrenched rights, Mr. Fairweather said: “The gang of no has become the gang of yes!”

Some hon. Members: Hear, hear!

Mr. Chrétien: Professor Walter Tarnopolsky is a past-president of the Canadian Civil Liberties Association and an international expert on bills of rights. His view is that the override clause “is really not such a bad idea, and could have a great many advantages”. That quote is from The Globe and Mail, November 9, 1981.

It should be clear, in conclusion, that the compromise reached by the Prime Minister with the nine Premiers maintains the principle of a full, complete and effective constitutional Charter of Rights and Freedoms. It does not exclude rights which have previously been guaranteed. In fact, the charter has been improved because unforeseen situations will be able to be corrected without the need to seek constitutional amendment. For those who remain concerned about the override clause, let me remind them that it has been said that “The price of liberty is eternal vigilance”. Pressure groups must remain vigilant and we are seeing such vigilance now from women who are arguing for the removal of the override clause in Section 28 and the aboriginal people who are fighting for the reinstatement of their rights. I will say more about that in a moment.

So, what does this Charter of Rights and Freedoms do? First, it protects fundamental freedoms common to all Canadians, such as freedom of speech, of religion, of the press and freedom to vote and to hold office.

Second, it guarantees the freedom of Canadians to establish residence and seek a job anywhere in Canada without regard to provincial borders. It establishes one Canadian citizenship rather than ten provincial citizenships. But it recognizes the need for special measures to be taken to protect local residents in provinces whose rate of employment is below the national average.

Third, the charter guarantees legal rights of Canadians. It sets out protection against arbitrary arrest, against unreasonable search and seizures. It enumerates the rights of an accused to be defended by counsel, to have a fair trial, not to be forced to testify against oneself. It ensures that where evidence is obtained illegally, it shall not be used where, by doing so, the administration of justice will be brought into disrepute.

Fourth, the charter enumerates equality rights. In this area the government is taking bold steps forward in order to ensure the equality of women before and under the law. I know some would have hoped that we could do even better, and I hope we can in the next few days. The ball is now squarely in the court of Premier Blakeney. This government and the party I belong to are confident we can and must succeed. But we also know that we must not break the accord or all will be lost. I am sure that the efforts of the Minister of State for Mines (Mrs. Erola) who is responsible for the status of women will bring about the result that is the desire of every member of this House.

Some hon. Members: Hear, hear!

Mr. Chrétien: No one can deny that this constitutional charter marks very substantial progress. If its provisions are

[Page 13044]

not perfect, they are infinitely better than the protection for women in, for example, the American constitution.

In addition, the charter specifically prohibits discrimination against those with physical or mental disabilities. This is a great achievement which makes Canada a world leader in the International Year of the Disabled. Much credit should be given to the hon. member for Don Valley East (Mr. Smith) and to other members of the Special Committee on the Disabled and the Handicapped.

Some hon. Members: Hear, hear!

Mr. Chrétien: Fifth, the charter deals with language rights and I will speak to this in a few minutes.

Finally, the charter makes specific reference to the multicultural nature of our society. At the time of confederation, our forefathers established a new country based on two great cultures, the English and the French. Over the last 114 years, Canada has been enriched by the contribution of immigrants from the four corners of the earth. Because Canada prides itself on not being a melting pot, we are establishing today that the charter “shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians”. As far as the government is concerned, the multicultural heritage of Canadians is such an important fabric of our nation that it must be reflected in our Constitution.

[Translation]

I want to speak now to my fellow Quebecers, and I want to tell them that it is essential to distinguish between the interests of Quebec and the interests of the parti Quebecois. The people of Quebec, whenever they have been asked to choose, have always come out clearly for Canada, and so we have chosen to listen to those who ran as federalists and were elected to serve Quebec in this house as opposed to those members of the government of Quebec who act as separatists after they are elected, but who can only get elected when they promise not to bring about separation during their mandate.

I want to say that I regret very much that Premier Levesque agreed to give up the Quebec veto. The loss of the veto is not recuperable, but the interests of Quebec have been protected in this resolution by the work of the 74 federal liberal members in this house and by the constructive suggestions of the Leader of the Quebec Liberal Party.

What then does the resolution do to protect the duality of Canada? First, it guarantees in the Constitution the rights of francophones to schools in the nine English-speaking provinces. This is extremely important as a protection for our minorities who for generations have fought for their rights. But it is equally important for the thousands of francophone Quebecers who each year since the Parti Québécois has come to power have moved to other parts of Canada.

Second, the resolution guarantees the rights of English-speaking Canadians to educate their children in English in Quebec. This merely enshrines in the constitution what Quebec has done of its own free will for over one hundred years. Even if the Parti Québécois opposes this constitutional guarantee being extended to the anglophone minority, the great majority of Quebecers see it as fair and just. Quebecers have never wanted to abuse the rights of the anglophone minority, and I believe that today, now that we have finally obtained education rights for francophone minorities in the nine other provinces, they will agree that it is only fair and just that we should do the same for the anglophone minority in Quebec, as we have been doing for that part 114 years.

Third, the resolution provides that where Quebec opts out of a constitutional amendment giving power to Ottawa in matters of education or other cultural matters, fiscal compensation will be paid. This was suggested by Mr. Ryan and was subsequently supported and imposed on Cabinet by the Quebec caucus.

Fourth, the resolution guarantees bilingualism at the federal level in the Parliament of Canada, in the institutions of the federal government, and in the services of the federal government. Here, I wish to point out that the manner in which bilingualism is to be entrenched in the Constitution in the future ensures that even a majority of this Parliament and of all the other provinces will not be enough to change this provision without the consent of the Province of Quebec. In fact, we have given Quebec a veto in this respect.

We have been accused of betraying Quebec, of threatening the French language, of taking away Quebec’s ability to control its own economy. If there has been a betrayal, the guilty one is René Levesque for giving up the veto. Nothing in the resolution threatens the French language. Instead the rmolution strengthens French across Canada. In Quebec, it does nothing to affect the provisions of Bill 101 with respect to the language of work, the language of the professions, or other matters relating to French as the official language of Quebec. As far as the economy is concerned, the resolution cannot be blamed for Mr. Parizeau’s last budget.

As Quebecers we must choose between the objectives of the Parti Québécois and the challenge of belonging to a country that spans a continent. As for me, I adopt the words of Laurier:

“We are French Canadians, but our country is not confined lo the territory over-shadowed by the Citadel of Quebec; our country is Canada; it is the fertile lands bordered by the Bay of Fundy, the Valley of the St. Lawrence, the regions of the Great Lakes, the Prairies of the West, the Rocky Mountains, the lands washed by the famous ocean where breezes are said to be as sweet as the breezes of the Mediterranean, our fellow-countrymen are not only those in whose veins runs the blood of France.

They are all those, whatever their race or whatever their language, whom the fortunes of war, the chances of fate, or their own choice have brought among us. As far as I am concerned, those are my fellow countrymen. I am a Canadian. The rights of my fellow countrymen of different origins are as dear to me, as sacred to me, as the rights of my own race. What I claim for us is an equal place

[Page 13045]

in the sun, an equal share ofjustice, of liberty; that share we have it; we have it amply, and what we claim for ourselves, we are anxious to grant to others.

[English]

I want to speak now about native peoples. No one is sorrier than I that it was not possible two weeks ago to agree to entrench in the Constitution the recognition and affirmation of aboriginal and treaty rights. Our failure to do so was a consequence of a process which required the making of compromises. But I would be less than honest if I did not say that the cause of the constitutional recognition of aboriginal rights was not helped by the fact that leaders of the native peoples have spent a great deal of time and energy lobbying against the section in the previous resolution which they now seem to like.

I do want to point out that there is no change in the provision of the Charter of Rights and Freedoms with reference to native rights. Section 25 states that nothing in the charter shall be construed so as “to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the original peoples of Canada”.

It is the old Section 34, which was not part of the charter, which is not in the resolution before the House. Many of us both on this side of the House and on the other side of the House are very sorry about that, and probably the most sorry is my friend the Minister of Indian Affairs and Northern Development (Mr. Munro), who has worked so hard from the beginning to make sure we had this in the Charter of Rights and Freedoms. He worked with me and with the hon. member for Nunatsiaq (Mr. Ittinuar). However, we have succeeded in including in the resolution a provision which requires the holding of a constitutional conference within a year to deal with the subject of constitutional recognition of the rights of the native peoples. I hope native leaders will come to that conference with a well-defined position.

Some have suggested the immediate application of Section 34 to the federal government and matters under federal jurisdiction. The government is prepared to act immediately on this suggestion if the leaders of the National Indian Brotherhood, the Native Council of Canada and the Inuit Committee on National Issues indicate their support for it by Tuesday, November 24. If such support is not forthcoming by the deadline, the government will keep the same proposal on the table for the purposes of all future negotiations on the identification of the rights of the aboriginal peoples.

The government would prefer that the recognition and affirmation of aboriginal and treaty rights be fully reinstated in the resolution but cannot do so without the consent of the nine provinces which are parties to the accord. I know that native leaders have attempted to obtain this consent, so far without success. Many provinces have now informed us that they would agree to be bound by Section 34. I hope this means that in the next two or three days the other parties to the accord will agree to be bound so that we can have a speedy and satisfactory resolution of this issue.

Mr. Broadbent: You just need one more.

Mr. Chrétien: I was on the telephone all day yesterday, part of last night and this morning. All members of Parliament can be useful in this regard, not by trying to gain political points but by doing our duty, if we believe firmly in this. We have to put gentle pressure on all the provinces, and I am sure that with the movement there is now we can do that. If hon. members are in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario or any other provinces, they should do their homework. I think it is coming, but don’t rock the boat!

Some hon. Members: Oh, oh!

Mr. Chrétien: They should not try to gain some political advantage. The native groups of Canada and others have been very effective. It is my view that it is the wish of all Canadians that we reinstate Section 34 in the Constitution.

Some hon. Members: Hear, hear!

Mr. Chrétien: It is the view of Canadians that having given our word when we signed the accord, we have to keep it. I want to affirm in this House that we will not impose it on the provinces if they do not want it. There is a mechanism that will permit us to do that eventually. Since the Government of Canada gave its word, it has the duty to respect that. I am sure the provinces understand the message of Canadians and are about to tell us that we will go to London with the entrenchment of both the women’s rights in Section 28 and the native rights in the Constitution.

Some hon. Members: Hear, hear!

Mr. Chrétien: I know the hon. member for Nunatsiaq today must rightly be disappointed that the resolution as introduced does not enshrine aboriginal rights. I hope that we succeed in enshrining aboriginal and treaty rights in relation to federal matters immediately. I hope that the eight remaining provinces agree to be bound immediately, but if we have to wait a year to reach a consensus with the provinces for all of Canada, the wait will be less important than the fact that we intend to succeed.

I do not have time to talk about the elements of the resolution dealing with equalization or about the extension of provincial jurisdiction over national resources. Others will speak to these items during this debate. I merely want to conclude by quoting the words of George Brown in the confederation debates:

No Constitution ever framed was without defect; no amount of talent and wisdom and integrity combined in preparing such a scheme could have placed it beyond the reach of criticism. To assert. then, that our scheme is without fault, would be folly. It was necessarily the work of concession; not one of the thirty-three framers but had, on some points, to yield his opinions; and, for myself, I freely admit that I struggled earnestly, for days together, to have portions of the scheme amended. But admitting all this—admitting all the difficulties that beset us—admitting frankly that defects in the measure exists— I say that, taking the scheme as a whole, it has my cordial, enthusiastic support. without hesitation or reservation. I believe it will accomplish all, and more than all, that we, who have fought so long ever hoped to see accomplished. It will lay the foundations deep and strong of a powerful and prosperous people.

[Page 13046]

[Translation]

Madam Speaker, finally, I must say, to you and to the other members of this House, that it is unfortunate that we did not obtain the agreement of the tenth province, the province of Quebec. I feel that the Premier of Quebec had a duty here to forget his party and to act as the representative of the province of Quebec. There are only three clauses that separate us. Considerable progress has been made on two of the clauses, and if misgivings still exist, we are prepared to discuss them. Considerable gains have been made in the last two days, both with respect to Section 28, which guarantees the equality of men and women in the Constitution, and in our present discussion on the entrenchment of aboriginal rights in the Constitution. In the days to come we could still find common ground for agreement, which would enable Quebec to join the rest of Canada on the day we give our country a new Constitution, the day when we shall achieve a new level of maturity in this country, when people will have equal rights and when we can be different while at the same time sharing the responsibilities and privileges of being Canadians.

[English]

Today is a great day for Canada. We will have a better country. There will be more justice, more friendship, more sharing in our land. Canada, as I have said so many times, is a great country. When we have finished our work, it will be a greater country of which we can all be proud. Today we are making sure this country will survive. It is a worthy cause. For all of us, nothing is better than Canada. Vive le Canada!

Some hon. Members: Hear, hear!

Right Hon. Joe Clark (Leader of the Opposition): Madam Speaker, I want to begin with two brief remarks. I say this genuinely in respect for the parliamentary tradition. I regret that on this matter that goes so much to the heart of what Canada is about and touches so directly the concerns of the Prime Minister (Mr. Trudeau), particularly on one of those rare days when I have something good to say about him, the Prime Minister has chosen to leave this House before I have the opportunity as Leader of the Official Opposition to respond to the introduction of the resolution by the Minister of Justice (Mr. Chrétien).

I understand he is busy. We are all busy. This is a matter which has commanded his attention for some time. I would have hoped that his respect for the institution of Parliament would have been such that he might have been prepared to stay. Does the Minister of Justice—

Mr. Chrétien: Madam Speaker, I would like to make a suggestion to the Leader of the Opposition. Rather than split his speech in two, he could postpone his speech until two o’clock. The Prime Minister could be here. It would then not be necessary to debate this problem. I am sure the Leader of the Opposition will be making an important speech and we should not force him to split it in two.

Mr. Clark: Madam Speaker, I am simply interested in my audience. If I’will have the benefit of speaking to the Prime Minister when we come back, I will call it one o’clock.

Madam Speaker: This House stands adjourned until two o’clock.

At 12.48 p.m. the House took recess.


AFTER RECESS

The House resumed at 2 p.m.

Madam Speaker: When the House adjourned the Right Hon. Leader of the Opposition (Mr. Clark) had the floor.

Mr. Clark: Madam Speaker, it is a pleasure for me, naturally, to rise in this debate. I think in our minds over the past several months there was some doubt as to whether or not this stage of the debate would ever occur. I think all of us who have faith in Canada are pleased that we were able to force respect for the Supreme Court of Canada, for our Parliament and for the processes of Canadian legislation to the extent that it has resulted in this new, very much improved resolution before the House of Commons. It has afforded members of the House the opportunity to make further improvements to a resolution much improved over the one that was dealt with through the last several years.

Some hon. Members: Hear, hear!

Mr. Clark: I do not intend this to be a partisan speech at all, Madam Speaker.

I would ask the Minister of Justice and members of Parliament not to seek partisan gain in this debate. I think that would be advice that all of us would endorse. The minister should not seek too frequently to blame others, whether they are provinces, native groups or others, for deficiencies in the resolution that is before the House of Commons. If the minister engages too much in that, I think there will be the temptation on the part of others to engage in a tone of debate that will not be helpful in advancing our processes here.

This is not another phase in the constitutional debate. This is very much a new phase. There is now a much different atmosphere in the country. Everyone taking part in the debate bears some of the scars of compromise, and there is nothing at all dishonourable about that. Compromise is the way we make Canada work. However, to end with compromise, one must start with principle.

I understand the Prime Minister will be arriving soon. I wish the Prime Minister were here when on one of those few occasions in the House I will pay tribute to him. I think the last time was when he promised to leave. I will not spend too much of my time in the debate in praise of the Prime Minister, but I would like to say that I will not soon forgive him for some of the consequences resulting from his methods with regard to the Constitution. I think it is appropriate that this

[Page 13047]

House should recognize the depth of his commitment to his goals, and the skill and the passion that he exercised in pursuit of them. All of the members of this House desire that the Constitution of Canada be brought home with an amending formula.

The Prime Minister introduced the resolution that brought us this far and brought a flexibility to make that initiative acceptable to most of the other partners in confederation. I want to congratulate the Prime Minister both for his determination that we have always known him to have, and for the flexibility, which I have to confess we were surprised to find, and the flexibility, I should say, we hope will continue.

Some hon. Members: Hear, hear!

As for the Conservative Party, even though the Prime Minister introduced this resolution to the House, we kept it here and allowed the Canadian system of Parliament, the Canadian system of the courts and the Canadian system of a first ministers’ conference to improve significantly the document with which we began.

As the country knows, the Prime Minister and I have different views of our country. History will judge whether this resolution better reflects his view or mine. Those are questions that will be determined later.

The question for today is whether the combination of determination and compromise which brought us this far can be extended to allow us to continue to progress in this phase of the Constitution debate. While it is true we have made progress, it is also true there is much more to do and it is particularly true that the Parliament of Canada has the duty to improve this resolution.

[Translation]

While offering my congratulations, Madam Speaker, I would like to say some words in praise of the Premiers of the English-speaking provinces.

[Editor’s Note: And the Prime Minister having entered the Chamber.]

Sir, you have just missed the only words of encouragement and approval I shall probably ever address to you in my career—

Mr. Trudeau: You can always repeat them!

Mr. Clark: No, never! Opportunity only knocks once! But I would like to say some words in praise of the premiers of the English-speaking provinces who voluntarily exercised their own freedom of decision in a truly Canadian spirit by recognizing minority language educational rights in their provinces. Naturally, we shall have to wait and see how this commitment is put into practice, and it will be interesting to see how generously the provincial governments will interpret the words “where the number so warrants”. The premiers of the nine provinces where French is the minority language have agreed to this extremely important principle. As a Canadian who has been fortunate enough to be exposed to both languages, I wish to congratulate the premiers on their foresight.

[English]

At this stage of the debate of the resolution, there are three specific amendments which my party proposes to introduce. There may be more later after further consideration of the implications of the resolution and consideration of proposals which may come, for example, from spokesmen of the people of Quebec. It is not our intention to extend the debate unduly, but it is our hope that everyone in the House will work constructively to bring the country together.

Our first amendment, which I will move later today, will reinstate, without qualification, the guarantee in Section 28 of the equality of male and female persons.

Some hon. Members: Hear, hear!

Mr. Clark: The House will not be surprised that my amendment in this case will be introduced by my good friend and colleague, the hon. member for Kingston and the Islands (Miss MacDonald). The present resolution will allow Parliament or a legislature to treat women as less equal than men, or men as less equal than women. We intend that the rights and free- doms set forth in all the provisions of the resolution will be guaranteed equally to male and female persons. I will elabo- rate on our reasons later.

The second amendment we propose would restore in the resolution the guarantees of aboriginal title which had been affirmed by Parliament, either in the language contained in Section 34 of the first resolution or in very similar language. Again I will elaborate on our reasons later, but I say to my friends in the New Democratic Party that before I came down to the House for question period this morning I received some encouragement to make a telephone call. I have made that telephone call, and l am given to understand that there may be communication between the premier of a province and the Prime Minister of Canada regarding some movement which might be made on that matter later in the day.

The third amendment would restore to the resolution the precise language accepted by Quebec and seven other provinces in the agreement signed in April known as the April Accord respecting compensation for provinces that opt out of constitutional changes which deprive them of rights those provinces have traditionally enjoyed.

[Translation]

We have been considering the resolution in detail since we received it this Wednesday, and three comments are in order. First of all, we would like to pursue our in-depth study. We would like to bear the opinions of, and consult with, people whose interests are not adequately represented in the resolution, and we want to make specific amendments to improve the resolution where possible. My second comment is that today, we are not dealing exclusively with the agreement signed by the ten first ministers on November 5, since the resolution goes

[Page 13048]

further than the agreement. I am happy with the changes that have been made, with the exception of those concerning the equality of men and women, but it cannot be argued that Parliament is bound by this agreement. The government was not bound by the agreement and neither is Parliament. My third comment is, more specifically, that the Parliament of Canada has a fundamental duty to find ways of persuading Quebec to participate in this agreement. My party will introduce amendments to improve the contents of the resolution, but the absence of Quebec affects its very foundation. Aside from the question of how effective the resolution can be if Quebec does not participate, I believe we all agree that it would be far better if Quebec were also included. The government has shown the same attitude with respect to the new Sections 39 and 58. It has, in fact, been my opinion since the agreement was tabled in the House. We must all work together to make the Constitution reflect the interests of all Canadians.

[English]

The Minister of Justice spoke during his remarks of the amending formula. I will not comment upon the acts of acrobatics that he had to contemplate to speak so favourably of an amending formula which he condemned so vigorously not many months ago. Of course, the amending formula has been before the House previously, precisely on October 22 last year, when I proposed the amending formula along with patriation as a means to bring our Constitution home. I do not intend to comment on the fact that other parties are now embracing what they once rejected, but rather I want to comment quite seriously on the regrettable irony that a proposal which has been around so long was studied so little by people who pretend to be constitutional experts. Simply because the federal government expressed disapproval, respected commentators suspended their own judgment of the merits of the Vancouver amending formula.

Some hon. Members: Hear, hear!

Mr. Clark: Perhaps if they had taken this formula more seriously some time ago, its advantages would have been evident earlier and advocated earlier than was in fact the case. I raise this because there is a similar danger that normally thoughtful members of the House or of the public or normally thoughtful commentators might also accept unexamined some of the other assumptions of the government’s present ease. One must remember that on a constitutional matter the government’s assumptions have been proven wrong consistently- proven wrong by public opinion, proven wrong by Parliament, proven wrong by the Supreme Court of Canada, and proven wrong by the provinces. At the very least their assumptions deserve careful scrutiny, and most particularly that is the case when the Constitution, the unity and perhaps the future of the country are at stake.

I suggest that one false assumption is the suggestion that initiatives by Parliament will unravel and doom the accord signed by the ten first ministers two weeks ago. There is absolutely no evidence that individual premiers or provinces are so opposed to the equality of men and women, to the concept of aboriginal title and to the idea of just compensation for the provinces, that Parliament’s actions in Parliament’s jurisdiction will cause any province to pull out.

Some hon. Members: Hear, hear!

Mr. Clark: Indeed, many of us and many Canadians believe Parliament is here precisely for the purpose of acting in Parliament’s jurisdiction. We are a deliberative and legislative body, not a rubber stamp for a prime minister or for premiers That obligation to act is most profound in fields where Parliament is the sole or crucial custodian of vital national interests such as the state of our aboriginal people or the unity of our divided nation.

For years my party and I have argued for a country where the provincial legislatures and the federal Parliament were both strong. Having made that case, we do not now propose to abandon our duty as the federal Parliament simply because the provinces have exercised their duty. The debt of our special obligation to Canada’s original people is clear and unchallengeable.

I suggest there is also a special duty in today’s circumstances to heal the division the premiers and the Prime Minister left between the rest of Canada and the province of Quebec. One could argue that the recent divisions within Quebec or about Quebec have been fought within the French Canadian family, between the francophone Premier of Quebec and the francophone Prime Minister, both from the province of Quebec. Today, however, the division is quite different. On one side is the Canadian government and the nine provinces where Francophones are a minority; on the other side, by accident or by design, is the one province where Francophones are the majority. That is the division of which separatists have dreamed. That can very easily be portrayed as the rejection of the French minority by the non-French majority in the country.

Madam Speaker and my colleagues in the House, only one agency can bridge that gap with authority, doing so in the name of all of Canada, and that is this Parliament, where Canadians of non-French origin constitute the majority, but where all of us, of whatever origin, are determined to build an accord large enough for the people of Quebec to feel comfortably at home.

Some hon. Members: Hear, hear!

Mr. Clark: If there was ever a time for the national Parliament to speak and act for the nation, now is that time. Instead of being silent and afraid to act, we should be creative, seeking to build on the progress of the last 12 months. Just as most first ministers were prepared to put down personal prejudice in the national interest, so too, I hope, might we rise above partisan, personal or regional interest to find solutions for our country, Canada.

[Page 13049]

This Parliament is one of the partners in confederation, We have acted effectively regarding the whole resolution. The other partners, the premiers, have acted creatively after the Supreme Court decision. Now it is up to us to act again, creatively and constructively, in Canada’s interest.

The other assumption which requires careful and serious scrutiny is the view that the present government of Quebec wants no agreement. I will suggest a test which may make them show their true colours. However, whatever the motive of the government of Quebec, the people of Quebec may want a just Canadian solution, and may want it ardently enough to force the Parti Québécois to put the people of Quebec first.

Some hon. Members: Hear, hear!

Mr. Clark: Of course, on this question we must berealists. I have been a realist concerning this matter since the day the constitutional debate began, a day when most people said the action of the Prime Minister was unstoppable. That very realism requires that we analyse and not merely blindly accept the argument that the present Quebec government will never agree to anything. As I will argue later, it has already agreed to the April accord, but it did so with seven other provinces of Canada. However, it is fair to assume that it will agree only if the people of Quebec force it to agree or support it in that agreement.

Therefore, as the Parliament of the whole country, as the Parliament which can be the last agency to bring our whole nation together, our attention should be paid to the people of Quebec—and not just the government of Quebec. Our standard, when we vote and speak in this House, should be whether provisions in this resolution or amendments to this resolution help the people of Quebec to stay comfortably within our common country, Canada.

Some hon. Members: Hear, hear!

Mr. Clark: I indicated that the first amendment we wanted to introduce, the one which l will be introducing today, relates to the equality of male and female persons. I would like to speak about that for a moment. When representatives of the federal and provincial governments met, they agreed that certain rights set out in the Charter of Rights and Freedoms should be limited by Section 33 of the new resolution by the non obsumte clause. In the accord which was tabled in this House of Commons by the Prime Minister on November 5, the non obstanre clause did not apply to Section 28, which guaranteed the equality of male and female persons. I believe that is an uncontested version of what happened, both in the conference and afterward.

Indeed, what happened, to the best of our ability to reconstruct it, is that after the Prime Minister came to Parliament and the Premiers went home, the officials of both levels of government got together and decided to apply the non obstante clause to Section 28. The government, in this amendment and resolution, has unfortunately accepted the officials’ amendment and has not acted on the accord which was reached by 10 of the 11 first ministers when they met here in early November. As a consequence of the change brought to this matter by officials, Section 28 is subject to Section 33. A limit is placed upon the equality of male and female persons which was not explicitly intended to be so placed by the ll first ministers of Canada when they met in conference in November in the capital of the country.

In recent days there has apparently been some dramatic shifting of opinion on the question. In one case, we learned that at least one Premier had not been informed of the exact nature of the work being undertaken by his officials and the position being ascribed to his government by his officials. My colleague, the hon. member for Kingston and the Islands (Miss MacDonald), brought that matter directly to the attention of the Premier of Nova Scotia. I should say, in passing, that the hon. member for Kingston and the Islands did so at her own initiative and that of her party and, without the benefit of advice from the government, brought that to the attention of the premier of the province of Nova Scotia. When he understood what was at issue, he immediately indicated his willingness to have Section 28 stand without limitation and expressed his willingness to associate himself, along with other Premiers and certainly along with his party, with the idea of the equality of treatment of male and female persons. Therefore, that changed.

We are not sure what is happening in the province of Saskatchewan. At last report, the New Democratic Premier of the province of Saskatchewan, that spokesman for rights in that party of rights, was proposing to trade rights for rights.

An hon. Member: Don’t go so low.

Mr. Clark: “Do not go so low,” someone suggests from the New Democratic benches. If those hon. members are interested in speaking for principle, let me suggest that they get up from the House, suffer the loss of hearing a few minutes of my speech, call Roy Romanow, call Allan Blakeney, and tell them to stop playing games with rights and to give us unanimous agreement so that male and female persons can be treated equally under the constitutional proposals.

Some hon. Members: Hear, hear!

Mr. Clark: I want to deal with the substance of what we are proposing. The substance of our amendment guarantees that men and women will have equal access to the rights and freedoms set out in the Charter of Rights and Freedoms proposed in this resolution. Some of those rights and freedoms will already be limited by the application of Section 33. However, where they exist they will exist absolutely equally for women and for men. That is the purpose of the amendment I am introducing, seconded by my colleague, the hon. member for Kingston and the Islands, That is an amendment which I hope will commend itself to this whole House, so that this whole House can go on record as supporting the guarantee of equal treatment of male and female persons in Canada.

Some hon. Members: Hear, hear!

[Page 13050]

Mr. Clark: Let me elaborate briefly for a moment. Two years ago, as prime minister, when statements were still made on motions, if Your Honour can remember that far back—

Some hon. Members: Oh, oh!

Mr. Clark:—I had the opportunity to make a statement on motions marking the fiftieth anniversary of the Person’s case in Canada. The Person’s case, as this House will recall, was a case brought by five courageous women who, I am pleased to say, came from my province of Alberta and believed that it was absolutely unacceptable that interpretations of the Supreme Court of Canada should prevent women from being interpreted as persons in a way which would not allow them to be appointed to the Senate. One might ask why they would ever want to be appointed there; but certainly, their case was that if anyone were to be appointed there, they should have as much right to be appointed as men. They raised the case, they fought the case and they won the case. From that point in the late 1920s and early 1930s, we achieved a very significant movement forward toward equality of status of male and female persons.

I make the point that while the symbolic battle was won with Senator Cairine Wilson being named to the Senate, we had only begun to approach the issue. The Senate was the symbol. The issue was inequality. The symbol has been repaired. The inequality persists.

I will not spend long on this point because too many of us, to our shame, know that if we have a daughter, as I do, she will not have the opportunity in this country to play hockey if she chooses to do so in the same way that a male child might have.

We know that women are denied equal rights to use the training they acquire, whether professional training—

Miss Bégin: They can play ringette.

An hon. Member: Why don’t you play hockey, Monique?

Mr. Clark: Yes, they can play ringette. That is right. They can play something else.

Some hon. Members: Oh, oh!

Mr. Clark: I do not want to get into partisan debates so I will not comment on my continuing surprise at the Minister of National Health and Welfare (Miss Bégin).

Some hon. Members: Oh, oh!

Some hon. Members: Hear, hear!

Mr. Clark: What I am going to say, I say also as someone who is occasionally guilty of the infraction myself. Nothing demonstrates the point I am trying to make more dramatically than matters about which this House jokes or titters most often. They usually relate in one way or another to the status of women. For instance, the dispute as to whether my colleague, the hon. member for Kingston and the Islands, should be called an hon. lady when I am called an hon. member. Thut sort of thing indicates that prejudice runs deep, even in this House where we are supposed to stand and fight against prejudice.

That, I believe, makes the case very clearly and very dramatically why, even though we have espoused the goal of equality, we need to take that step one point further. What must be put right into the Constitution of Canada is the guarantee that male and female persons will be treated equally in relation to the rights and freedoms of Canadians. That will be another step forward, as was the Person’s case some 50 years ago which guaranteed in daily practice, where wages were paid and people were hired, that female persons were to be treated equally with male persons.

Some hon. Members: Hear, hear!

Mr. Clark: At this point I would like to move a motion, and I will, continue my remarks after having done so. I move, seconded by the hon. member for Kingston and the Islands:

That the proposed Conslirurion Act 1981 be amended
(a) by striking out clause 28 and substituting the following:

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

(b) by striking out subciause 33(1). and substituting the following:

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

What that does is remove the non obstante clause from Section 28. It restores the guarantee of equality of male and female persons to the position enjoyed when the accord was tabled in this House of Commons by the Prime Minister of Canada after his meeting with the first ministers.

There is another matter to which an hon. member of my party will be addressing himself and submitting an amendment later. It cannot be done today because we can only submit one amendment at a time if we want to have them voted on individually, as we do. This other matter of major importance has to do with the question of aboriginal rights, aboriginal title. As I say, that will be introduced later. I was given to understand by the speech made by the Minister of Justice (Mr. Chrétien) that there are some negotiations continuing with representatives of at least some of the status Indian groups. We will naturally want to take account of those negotiations and to keep current with them. But I make the specific point, Madam Speaker, as someone who has had the interests of the native people at heart for a long time both in

[Page 13051]

this House and in this country, that the Parliament of Canada cannot wait forever for that kind of agreement. Parliament has a duty to act.

I want to speak for a moment, if I might, of the nature of that duty, the nature of our responsibility to the aboriginal people of the country. One in this nationalist age would be reluctant to quote a poet from the United States, except perhaps in the case of aboriginal title, because the aboriginals were here before the United States or Canada was, before the forty-ninth parallel meant anything more than another widening in the trees. I am struck by the words of Robert Frost when speaking of Americans, Canadians, people who came late to this continent. He said:

The land was ours before we were the lands.

Mr. Frost was speaking of the white population, not the natives. The land of this continent belonged to, was used by, the original people well before the concept of land took root as something that was possessed and parcelled out. Land, to the natives, was where you lived, where you worked and where you took your nature. It was heritage, not just territory. In a very real sense, land and people were the same.

We took that away, we who came later. We took it away as an inevitable consequence of our civilization and the compensation we offered was often meagre, often mean, sometimes nothing at all. But the original people were here before our civilization. Our treatment, our meagre, mean treatment of them, has increased our obligation, not diminished it. We cannot reverse history, but we can take account of it. A minimum step must be for this Parliament to put in a document that deals with the rights of our people and to acknowledge at least the particular rights of our first people to draw their life and their culture from what we made our land.

Some hon. Members: Hear, hear!

[Translation]

Mr. Clark: I would like to discuss a third amendment we want to move. It is said that under no circumstances will the present Premier of Quebec accept the constitutional agreement. Whether or not this is true, it is significant that in April, the Government of Quebec, together with the premiers of seven other provinces, signed a very important constitutional agreement, namely the April accord, which basically contained the Vancouver amending formula we are discussing in the House today. So, in April, Quebec took the extraordinary step of giving up its veto right, yes, its veto right, thereby agreeing that the constitution could be changed without its consent. Quebec did not give up its veto right for nothing. It was offered in exchange for a reasonable guarantee of fiscal compensation for provinces who choose to opt out, that is, who decide not to go along with a constitutional amendment. It is common knowledge that this guarantee of full fiscal compensation was the only reason why Quebec signed the accord. It was also common knowledge that if the guarantee were withdrawn, Quebec would reject the accord, so that taking this compensation out of the accord was tantamount to forcing Quebec to withdraw. At this point I do not care who deleted the compensation clause, but whoever is responsible did, in fact, force Quebec’s hand. I do, however, want to rebuild this agreement, and it makes sense to start with the guarantee that has always been the essential condition for Quebec’s participation, the full compensation guarantee. That is why I feel that compensation is the crucial factor, for all of us who hope to produce an agreement that all the provinces, including Quebec, will agree to sign. It must be said, to the federal government’s credit, that it has gone part of the way; it has offered compensation with respect to certain provincial powers, namely, those concerning education and other cultural matters. However, this is only part of the guarantee, it is less than the guarantee in the April accord.

[English]

If we want a truly Canadian agreement with all partners participating, we must offer everything in November that was offered in April; and if the government of Quebec says no today to something it accepted in April, then it stands accused by its own actions of putting its indépendantiste ideology ahead of the interests of the people of Quebec.

Some hon. Members: Hear, hear!

Mr. Clark: Mr. Speaker and colleagues in this House of Commons, colleagues who want to have a Constitution and an accord to which all of our people can be party, let us give it the choice. Indeed, if you will, let us force the government of the province of Quebec to make that choice. Let us force it to justify rejecting in November what it accepted in April.

Some hon. Members: Hear, hear!

Mr. Clark: The present resolution does not do that. The present resolution allows the PQ government of Quebec to take an easy way out, to say it had more in April than it has in November. Why not take that argument away from Quebec? Why give it that argument which it can use, if that is its desire, to stay out of the constitutional accord? Why not force it to make the choice? The only way to force it is by making in November the same offer the government of Quebec signed in April. That seems to me to be elemental logic. That seems to me to be a very effective way of seeing exactly where the Parti Québécois government does stand, and of seeing whether there is an opportunity for this Parliament to act in a way which will bring Quebec in and serve the interests of the people of Quebec.

Some hon. Members: Hear, hear!

Mr. Clark: We are seized here not simply with the question of giving the government of Quebec a choice and forcing it to face it; we are also dealing here with the opportunity to give Canada the chance of an agreement in which all partners can join. To give Canada a chance, as I have indicated, we will

[Page 13052]

propose an amendment to guarantee any province that opts out fully what was guaranteed in the April accord.

I want to speak for a moment about the amending formula, opting out and the compensation question. If it is accepted that in areas of jurisdiction, strictly limited by Section 37, that might be transferred from the provinces to the federal government, a province should be able to decline to opt in, it follows that such an option must be a real option.

It is worth reminding hon. members of the House of the real nature of this amending formula, because it has not yet been fully understood. It is a formula that combines the required features of flexibility and equal treatment of provinces. I commend the Premier of Ontario for his very real flexibility in agreeing to allow such a concept to be recognized by the removal of any provincial veto. The formula allows changes to be made when it is demonstrated that such changes are needed. At the same time, it ensures that changes are not made without due consideration. Seven provinces must agree to an amendment, they must have among them at least a majority of the population, and if the federal government does not want to agree it can stop it on its own.

It is a formula that recognizes the fact that in Canada there are identities and problems unique to one province or region. It allows those problems to be met and those identities to be expressed without preventing the development of a national will. In certain limited cases, a maximum of three provinces could decline to opt in to amendments that would take from them rights and powers they have held since confederation. That is what the formula means.

What our amendment means is that that right would not have to be bought; that right would be there with compensation includcd. It would not have to be bought by a province that wanted to exercise it. A legislature would be free to decide if the people of the province would be best served by jurisdiction being transferred to Ottawa or retained by the province.

Madam Speaker, colleagues in this House of Commons and Canadians who want to help and heal our country, let me make the point that if that is to be a free decision, no province should be forced to incur a financial penalty. That is simple justice. That is the simple justice that is denied by this proposal. That is the simple justice that was approved by the Premier of Saskatchewan when he signed the April accord. And that is the simple justice I suggest should be approved by the Parliament of Canada now so we can ensure that the right of opting out includes the right to do so freely, and not with a requirement to buy what we call a right.

Some hon. Members: Hear, hear!

Mr. Clark: Madam Speaker, that amendment will be introduced later in this debate by another of my colleagues. I would have introduced it today if the rules of the House permitted.

They allow only one amendment to be introduced today, so we will consequently introduce this and the amendment respecting aboriginal rights later.

What we are doing now in what I hope is a genuine, non-partisan way is discussing—

Mr. Benjamin: It sure sounded like it.

Mr. Clark: I hear from the NDP. I would repeat, if the NDP has things to say, particularly Mr. Benjamin from Regina, let him say them to his premier.

We are discussing the Constitution of our country in a way that most of us feel is non-partisan. Because it is our country, and because the questions are so basic to our rights, to our future, to our unity and to our vision of our country, all of us are affected personally. When I say all of us are affected personally, I am not simply speaking of members of Parliament who sit in this House or the members of the other place; I am speaking of hundreds of thousands of our fellow citizens across the country, some of whom are demonstrating now around legislatures in various parts of the country.

I am speaking of people who came in hundreds and wanted to come in thousands to appear before the special committee that looked into the first resolution, Canadians from the length and breadth of the land, from sea to sea to my seatmate’s northern sea, who worried, talked and thought about our Constitution during the last year. This ordeal has been wearing on all of us, but I think what this process has done, among other things, is made the Constitution much more human and much more real to many more Canadians.

If I might ask the indulgence of the House for a moment, I want to speak briefly in a personal way. This month is the beginning of my tenth year in this Parliament. Like others who are here I came to the House of Commons with certain goals and bearing certain prejudices. One of my prejudices, one of those I was fortunate to learn at home, is that there are no differences in the capacities and potential of men and women. I grew up in a farm community, and on farms men and women work equally. I grew up in a town during wartime, at a time when many of the men were away. They were not at home to run the businesses so the women ran and often ran them better. If there was a question of equality after the men came home, it was whether they were as good as their wives were at running the businesses.

The hard reality, however, that we have all encountered is that barriers do stand in the way of women, barriers that do not stand in the way of men. l personally am proud to be able to play some small role, with the introduction of the amendment today, in trying to bring those barriers down and trying to move us, in law and in thought, toward that kind of equality which exists in fact, if one regards the capacities and potential of male and female persons in this country.

I grew up, Madam Speaker, with native people, not as a legal concept but as neighbours to people like me; native people who lived not far away from my town. One of the first accomplishments that I can remember as a private member in a minority Parliament during 1972 to 1974, a time when committees were able to do something, is when I, along with

[Page 13053]

my colleague from Kingston and the Islands and my colleague from Yukon (Mr. Nielsen), were able, with the help of the New Democratic Party members at the time, to have accepted for the first time a resolution by a committee, which was subsequently accepted by this whole House of Commons, which recognized the legitimacy of aboriginal title and rights in this country.

From my background of having known native people in my earliest days and having been involved in the defence of their rights since my time in Parliament, I certainly cannot be neutral on that question now, and my party does not intend to be neutral. It is for that reason that we have moved this amendment on aboriginal title.

Some hon. Members: Hear, hear!

Mr. Clark: As for Quebec—

[Translation]

—I am the most bilingual citizen of High River, Alberta, and I have had a chance to learn not only the language but also something of the nature of the people of Quebec.

[English]

I cannot think of my country without Quebec and I have to say that I believe that is the position of virtually every member of this House of Commons.

Some hon. Members: Hear, hear!

Mr. Clark: However, it is not good enough to be here to think good thoughts. We are here to act. That is what we were elected to do by our constituents across the country and that is our obligation.

I have the honour in this House to be the Leader of Her Majesty’s Loyal Opposition. There is, perhaps, a special obligation on me, as there is on the Prime Minister and certain other officers of the House, to take that responsibility with a particular seriousness. But that responsibility falls upon all of us. It is, perhaps, particularly because of my disinterest in some of these questions that I can move some of the amendments and speak to them as I have today. I am obviously not a woman—one of the 52 per cent majority which women constitute in this country; I am among the minority. I am not a Canadian of Inuit, Indian or aboriginal ancestry. I am not a Quebecer, except in spirit. Perhaps I have a special capacity, a special quality, to come here to ask others who are not native, women, Quebecers—and if they are Quebecers, not supporters of the Parti Quebecois—to recognize the tremendous importance to Canada of having a Constitution which will respect the rights and equality of women, underline the rights of the aboriginal people, and be large enough to include and make the people of Quebec feel comfortably at home.

That is the purpose of our amendment and that is the purpose of our party. That, I hope. will be the result of our deliberations and our debate on this resolution which is now before us.

Some hon. Members: Hear, hear!

Madam Speaker: I am sure members of the House will appreciate that, because of the drafting technicalities, it is important that I reserve judgment on the acceptability of this motion.

Mr. Edward Broadbent (Oshawa): Madam Speaker, for more than 100 years we, as a nation, have been in pursuit of a completely autonomous nationhood. For more than 100 years this goal has eluded us. In these days we are now approaching success at last. In short, the final stage of the process is under way.

Since the birth of our movement as a party in the 193Os, we, along with others, have been in the forefront in advocating the need for an independent Constitution, a charter of rights and a working amending formula to meet the needs of the future evolution of our country. We have also said that the uniqueness and grandeur of the province of Quebec must forever be a cherished and crucial consideration in constitutional change. Quebec is not and never will be a province just like the others. It adds in its vitality, its architecture, by its composers, filmmakers and poets, a richness and diversity for which all Canadians can be thankful.

Some hon. Members: Hear, hear!

Mr. Broadbent: Finally, in recent years our party has become aware, at long last, of the moral claims of Canadian women and the native people of our land. It would be nice to be able to say that politicians, not only in our party but other parties, have been aware of the concerns of women and native people for many years and, indeed, decades. But that would do injustice to the truth. We all know that in this Parliament and in the legislatures across the country the concerns of the native people and the legitimate claims of Canadians women have been on the political agenda for all too short a time in our history.

In approaching constitutional change, then, we have these concerns and these values. When the process of constitutional change began in a serious way last fall, we said, along with others, that now is the time to act and create a fully independent Canada within a political framework that would make possible the creation of a society that is at once just and exciting, a society that is at the same time peaceful and humane.

As we all know, the process has not been an easy one. It has not been, to put it euphemistically, without tension. These tensions have revealed themselves in all our regions, in all our institutions and in all our political parties. I emphasize that this situation has occurred during every period of our history since the birth pains of nationhood were being experienced. There was no reason for Canada to have been an exception and we were not.

Earlier today the Minister of Justice (Mr. Chrétien) appropriately paid tribute to the Prime Minister (Mr. Trudeau) and the first ministers who met not long ago to develop a new accord. I want to join, on behalf of my colleagues, with the Minister of Justice in paying tribute to those men, representing

[Page 13054]

all the parties of Canada and all the regions of Canada, for the sincere and good results, on the whole, that they produced.

Some hon. Members: Hear, hear!

The Minister of Justice (Mr. Chrétien) alluded to the particular role members of his party played in the development of the constitutional change process which has brought us to today’s debate. I think it would be understandable in this context, without doing it in any boastful sense, if I underlined a few contributions to this process which have been made by my party. I am very proud of the role we played in improving the content of the original resolution. Specifically I single out the following contributions of the New Democratic Party, without which certain provisions in the resolution would not have been included. I noted with interest that two of the key amendments to which the Leader of the Opposition (Mr. Clark) referred—and which he wants put back in the resolution—were the precise amendments the New Democratic Party insisted upon and obtained in the first resolution last spring.

Some hon. Members: Hear, hear!

Mr. Broadbent: The first of these contributions I want to mention—because I think it is very important, given the regional nature of Canada—was that as a result of early discussions, broad new powers were given to the provincial governments over the development, control and management of their resources.

The second was our writing and insistence upon the acceptance of Section 28 in the original resolution which gave paramountcy to the equality of men and women. That was a product of the New Democratic Party of Canada and was finally accepted, I am pleased to say, by all parties in this House.

The third was the writing and insistence upon of Section 34 which recognized treaty and aboriginal rights. That was moved by one of my colleagues. It was written by the New Democratic Party, submitted and finally agreed to by all members in the House.

I am proud of the role my party played on those two important questions at this point in our history affecting the women of Canada and our native people. I have noted that as part of the process of the development of the Constitution the other parties went along with these suggestions.

As we all know, following the debate which took place last spring and following the decisions reached by certain courts, it became the strong view on this side of the House that the final vote on the resolution had to wait until the Supreme Court of Canada made a final judgment on the resolution. That judgment contained two messages. It said it was strictly legal but, on the other hand, it pointed out that broader consensus for constitutional change ought to be found. This process eventually took place and, as I have noted, the premiers and the Prime Minister (Mr. Trudeau) deserve credit for what they achieved. The amending formula was changed. The absolute veto for the Senate was dropped, and the Charter of Rights and Freedoms was modified to make it blend with our parliamentary tradition.

Mr. Siddon: You favoured all those things?

Mr. Broadbent: I will deal with that in a minute. I would be less than honest if I said that my colleagues and I were perfectly happy with all these things. We would have preferred that the original charter be binding universally without exception across Canada. That was our first preference.

Some hon. Members: Hear, hear!

Mr. Broadbent: Nonetheless, as a number of civil liberties authorities have said, over-all in the context of serious compromise what we still have remains a good charter of rights. As the Minister of Justice has said, certain rights will remain absolute. Among those over which legislatures may pass laws the onus is upon those legislatures to pass specific legislation to justify such transgressions, and such negating laws would have to be renewed every five years. Thus, opposition parties and especially private interest groups in our society must remain vigilant.

In the early part of the last century a great French writer, Alexis de Tocqueville, wrote what was perhaps the most profound study of American society, and one of the distinguishing features he singled out about North American society was the vitality of interest groups and the creative input they had in making a democratic society with individual liberties possible. The kind of charter we now have before us will indeed permit legislatures on a five year renewal basis to undermine certain equalities if they wish, so it is mandatory that all of us who concern ourselves with civil liberties keep the pressure on at all times.

[Translation]

Madam Speaker, there is a most notable absentee among the signatories of that constitutional resolution. One cannot ignore the absence of Quebec at those negotiations. It is most unfortunate that Quebec was unable to agree with the other governments. We must recognize the uniqueness of the province of Quebec as I said earlier. Quebec, as a distinct society, is entitled to a special place within the Canadian community. However, it must be recognized however that the constitutional resolution before us partly confirms this. It was high time! It is not necessary to prove that Quebec is different from the other provinces, it is obvious.

This resolution, for the first time in the history of Canada, is a step in that direction. It is a beginning rather than the end of a process. I was pleased and even relieved to learn that the Prime Minister had amended the constitutional resolution. Thus Quebec will be entitled to some compensation if it ever wanted to opt out of any cultural or educational programs that the other provinces wanted to entrust to Ottawa. For legitimate and reasonable reasons, Quebec must control and administer those areas.

[Page 13055]

[English]

However, in this context I want to say that the proposal which has just been made by the Progressive Conservative Party of Canada is not one that is acceptable to us. The suggestion that in all domains where there is constitutional change approved by the constitutional amending process which would enable a province to opt out and obtain financial compensation in so doing would indeed create, in terms of all kinds of social programs, a checkerboard Canada. That is a view which we would not put up with.

Some hon. Members: Hear, hear!

Mr. Broadbent: It is one thing to recognize, as we ought to, the unique nature of the province of Quebec. It is one thing to recognize the unique qualities of Quebec—and I give credit to the government at last for doing this—in the cultural and educational domains require special consideration, but it is quite another thing for us to say that as a general principle for all provinces all new ideas like medicare, if proposed and accepted by constitutional amendment, could be rejected with compensation. Then the rich provinces could retain the money while the rest of the provinces would have medicare. I say to the Progressive Conservative Party of Canada that we would never have had medicare in Canada as a national program if that had been in effect at the time.

Mr. Clark: Madam Speaker, I rise on a point of order. I would be the last to want to interrupt the Leader of the New Democratic Party (Mr. Broadbent)—

Mr. Deans: Why are you doing it, then?

Mr. Clark:—nor would I want him to commit himself to a position without perhaps fully understanding it. The example of medicare that he has just used would not be prohibited by the amendment we have brought forward. The Leader of the New Democratic Party, naturally, may make the decisions he wishes to make. However, I would hope that before he finally and absolutely commits his party, he might provide us with an opportunity to go through with him in detail what has been proposed so if there is an opportunity to extend an amendment that would bring in Quebec, he will judge that on the basis of proper information.

Mr. Broadbent: We can have a longer discussion on that point in future. I stand by what I said. The agreement that has been achieved would, by amending the Constitution, enable one province to opt out of that and obtain financial compensation. I listened to the Leader of the Opposition with great care and will read with even greater care what he has had to say. Certainly the preliminary reaction would be that social programs involving constitutional change could lead to the richer. provinces opting out all along the line, leaving the poorer provinces to pay.

I will continue with the main points I want to make concerning the province of Quebec at this point in my comments.

[Translation]

English schools are no longer open to one and all in Quebec. The children of immigrants will have to attend French schools. As well, only Canadians who have attended English primary schools in Canada will be allowed to send their children to English schools in Quebec. Those amendments reflect greater respect for the distinctive character of Quebec. There is still room for improvement. For instance, arrangements ought to be made with respect to mobility should migratory movements appreciably alter Quebec’s population balance. Quebec is already a distinct society in fact. I have in mind here the legal system and the Quebec Pension Plan in particular. That is good for Quebec and for Canada as a whole. Finally, Madam Speaker, francophones outside Quebec will gain recognition of their rights to education in all provinces of Canada. After 114 years, there is still progress to be made so that within a relatively short time francophones outside Quebec may be able to control their educational and social institutions just as anglophones do theirs in Quebec.

[English]

I want to note in this context that I am pleased to be able to send my daughter to a French language school which opened two years ago. For the first time we have a French language public school in the province of Ontario. There were Catholic schools teaching in the French language. Finally, the province of Ontario in the city of Ottawa is making French language available in the public system. Francophones all across our land must have that right.

Some hon. Members: Hear, hear!

Mr. Broadbent: I want now to turn to two fundamental matters which must be of concern to all Canadians, namely equality of the sexes and the rights of Canada’s aboriginal peoples. Before doing so, I want to say that when completed in a just form, I would like this resolution, particularly the Charter of Rights and Freedoms, to hang on the wall of every classroom in every school in every region of Canada. I do not say this because I believe in propaganda. I say it because I believe constitutions are fundamentally about rights, rights are fundamentally about people and people from childhood on must be encouraged to acquire a deep understanding of their own liberties as well as an even deeper appreciation of the liberties of others.

Some hon. Members: Hear, hear!

Mr. Broadbent: Turning now to this document, I ask in all seriousness, would we want children anywhere in Canada to read a document which says, “Men and women are equal except when a group of politicians say they are not”? That is what is in this document. It is neither good for young boys nor for young girls.

In our culture at this time, this kind of symbolism can mean only one thing. It does not mean that males can be discriminated against as well as females. Everyone in this chamber and everyone in Canada knows that it means it is accept-

[Page 13056]

able to discriminate against women, against young women, against girls. We find that totally offensive in this year of 1931.

In changing the original resolution with this act, we have taken a step backward, reversing completely the progress we had made in recent years. The progress toward achieving greater equality for women has, to understate it, not been exactly exciting. However, we have made and have been making up until this document some changes. However, when we put into a constitutional document written in 1981 the principle of inequality, what are we doing? We are not simply pausing or stalling; we are turning things backwards, we are institutionalizing inequality, and we cannot accept that.

We must restore the original positive wording of Section 28. which ensures the paramountcy of the principle that men and women are equal. The Leader of the Opposition mentioned his intention of moving an amendment. We had the same proposal, so it would be totally redundant for us to do that. I simply indicate that the amendment will have our full support, if for no other reason than that in the original document we wrote it in the first place.

I want to turn now to aboriginal children in the same schools, looking at the same document. Consider the children in Old Crow, Inuvik, on the reserves or in schools in the cities of western Canada where many of our native people have come in recent years. What would those young Indian children think when looking at that document on the wall, given their heritage, especially when they know that this land was once their land? How did they lose it? They lost it by violence, treaties or trickery. They know in their bones that is what happened to them as a people in the northern part of North America, and with much more violence in the southern part. It is impossible for a white person to put himself in the skull ofa young Indian child and know what is going on in his or her mind. What will happen when they hear, as they will in their schools, about this process and when they see the kind of documents we know will be sent out that will be put on the school walls in Old Crow or in Inuvik? In this context, I would like to say I was at a meeting in Alberta a week ago with Indian leaders. I heard a whole series of them. Many of them I had met previously. I agree with what the Minister of Justice and Attorney General said, because—and I want to say that in passing—some of the leadership in the Indian community is no better or worse, I suspect, than the leadership in the political parties of Canada.

Mr. Trudeau: And in the CLC.

Mr. Broadbent: And in the CLC, I will agree with the Prime Minister. I would also ask him to agree with me that the same is true of the Chamber of Commerce as well.

Some hon. Members: Hear, hear!

Mr. Broadbent: The point I want to make is that, having sat for an hour over breakfast and listened to the Indian leaders-and I heard the legal arguments before—I agree with them. But perhaps because I heard them before, I was not overly moved. There was an older man there who had kept silent. He was not one of the young, educated Indian lawyers nor, for all I know, was he one of the chiefs. I apologize to him through the House if he was in fact one of the chiefs of one of tho bands from Alberta. Just before we broke for breakfast he spoke to me in a very low voice. He said, “I don’t know what you are going to do in Ottawa. I don’t know if we’re going to get our rights, as I think we should have had them—”—and he was an older man—”—but I do know that my grandchildren will be very upset if we don’t get our treaty rights”. Then there was complete silence. That is all he had to say. He did not say it in a threatening tone, nor as a political bottom line, nor with animosity. There was almost a sense of pathos about what he did have to say, Madam Speaker. If I understood him correctly, he was saying, “My generation of Indians has had it. We have gone through it and we did not get the rights.” He said to me as a white Canadian politician, “You have to think of the young Indians who are coming along.”

That is my special plea today, Madam Speaker. It is a plea I am making in the House of Commons and to the premiers. I have talked to more than the majority of them during the past ten days. I know there are more than the majority of the premiers who are willing to entrench aboriginal and treaty rights. I know we are short of one or two premiers. I say that they must come forward so that we can send this document to England so that it will provide justice for our native people.

Some hon. Members: Hear, hear!

Mr. Broadbent: I will not be moving an amendment on this subject today because one of our subsequent speakers will do that, Madam Speaker. The obvious force of the points that I have just made is that Clause 34 as written in the original resolution should be restored to the document before the House.

I want to conclude by saying that it is very rare in politics that a nation or a group of politicians is given the opportunity to make a historic decision that can be both practical and decent, that can be at once just and prudent. We in Canada are now on the threshold of such a decision. To follow through, we must now fully entrench treaty and aboriginal rights. A number of us have already said that the resolution before us is not perfect but it is good and requires improvement. The improvement, in my judgment, would add integrity to Parliament’s treatment of men and women and to our treatment of the aboriginal peoples of Canada.

In the final analysis, national unity is not about federal-provincial relations, or the relations between different regions as abstract entities; it is about people. All of the people must be treated with integrity in this document. National unity, when we talk about provinces, is one thing. National unity, when we talk about the relationships of people, is what really counts.

I want to conclude by saying that national unity without integrity is not possible. I hope our goal in this debate, before the final vote is taken, is to achieve that national integrity.

[Translation]

Mr. D. M. Collenette (York-East): Madam Speaker, I am very glad to speak in such a historic debate. I have been saying

[Page 13057]

for years that the renewal of the Constitution is the most important question in the country, and I am deeply grateful to our Prime Minister (Mr. Trudeau) who has worked without respite. Mr. Speaker, I believe that when future generations will look back they will readily acknowledge the greatness of this Prime Minister who has so firmly urged Canadians to face this challenge. So now we must answer the question as to whether we, as Canadians, have risen to the occasion.

[English]

That is my message this afternoon, that is my small, modest contribution to this great constitutional debate. Have we been equal to the challenge that has been laid before us? This is a time of joyous outpouring. We will soon forward this resolution to Her Majesty. With the passage of the enabling legislation at Westminster and the subsequent proclamation here in Canada, we will at last have our own Constitution. We will end the anomaly of being a major power in the world, a major independent country with its Constitution residing in another country. This process has a particularly relevant meaning for me because I came with my family from Great Britain some 20 to 25 years ago and I have always found it somewhat incongruous that the country that I knew and learned about in my education as a young boy was really not independent and had not really attained the last vestige of independence. It is particularly touching for me to have been a participant as a Member of Parliament at this significant time in our history, when we are at last making Canada fully and truly independent in every sense of the word.

The proclamation of these changes will finally give us in this country a way to amend our Constitution. It will also give us a Charter of Rights and Freedoms. This is cause for joy. However, our joy must be tempered by the knowledge of what might have been. To follow on the comments made by the Leader of the New Democratic Party, I must say that what was the best charter of rights, in his words, is still an excellent Charter of Rights and Freedoms. We all have reason to be proud of the charter, but improvements still must be made. The Hon. Leader of the Opposition (Mr. Clark), the Hon. Leader of the New Democratic Party (Mr. Broadbent), as well as the Minister of Justice (Mr. Chrétien), touched upon the need to make improvements, to go forward. By passage of this resolution constitutional change will not be over. It is but another phase in the ongoing constitutional development in the history of the nation.

There are many purists in the House. I was one who, along with the Prime Minister (Mr. Trudeau), with just about everyone on this side of the House as well as many members on the opposition side, believed that fundamental rights and freedoms were so sacrosanct and so inviolate that they should be entrenched in a constitution beyond the temporal winds of legislators such as ourselves. We have heard many speeches in the debate from hon. members who have described Canadian legislatures and indeed this Parliament—of course I am thinking of the ignominious incident in the Second World War dealing with Japanese Canadians—as not having been the best guarantors of individual rights. This is why the charter which has emerged over the past year in debate in the House and through the participation of thousands of Canadians was such a noble document. It proposed that all basic freedoms and rights would be entrenched in the Constitution free of any legislative qualification.

The constitutional accord which was signed two weeks ago after much deliberation entrenches rights. However, fundamental freedoms, legal rights and equality rights are subject to a provincial or federal legislative override. In addition, as has been pointed out, our original intentions as expressed in the original resolution in the House on the question of native’s and women’s rights have not yet come to fruition. They were not included in the constitutional accord. Indeed this is a glaring, startling and regrettable omission which we must all resolve to correct, whether it is to be corrected in the days which follow in debate in the House or whether it is to be corrected after patriation with the new amending formula which will be at our disposal.

We must address these questions. It has been argued with some justice that it will be difficult to override the charter, that the charter will provide an imperative for our courts that will make it very, very difficult for any legislature to tamper with the provisions relating to rights or to pass any legislation which would derogate from those rights. I shall not rest, and I am sure there are others in the House and in the country who will not rest until we achieve, once and for all, the complete entrenchment of these rights from any legislative sanction.

[Translation]

Mr. Speaker, first of all let us look at one of the main reasons why constitutional reform was so important for Canada, namely the entrenchment of the constitutional guarantees which ensure the survival of the French language and culture. As an English-speaking Canadian, I must admit that I am not proud of the way French~speaking Canadians have been treated for many decades. The two major examples of the shameful treatment of the French minority by the English majority have already been outlined during this debate. They happened in Manitoba in 1890 and in Ontario in 1912. There have been many other such cases, the most recent one being the air traffic controllers strike in 1976. Unfortunately, Mr. Speaker, it was the ambivalence of English-speaking Canadians which showed once more that francophones cannot rely on the good will and the generosity of the legislators to guarantee their language rights.

Mr. Speaker, the survival and the promotion of the French language are important concerns for the Liberal Party of Canada, the Liberal Party of Quebec, and of course, the Parti Québécois. However, the latter believes, because of its destructive and reactionary ethnically-based prejudice, that the pro-

[Page 13058]

tection of the French language requires cutting back of some of the rights of the English minority established in Quebec. This contemptible nationalism has brought even more urgency to the need for linguistic guarantees, and the attitude of Mr. Levesque and his friends during the recent constitutional talks has emphasized the dishonesty of such a policy.

The former protector of the French language is now turning his back on the French minorities outside Quebec. This agitator has betrayed his provincial colleagues by refusing to sign the constitutional accord. This fanatic, whose slogan is Je me souviens, has abandoned his own province by renouncing to the veto of Quebec. Why is this, Mr. Speaker? Because this man and his party are determined to sabotage Confederation whatever the cost, even at the risk of weakening the position of their own province in future constitutional debates. If Quebec is now alone, Mr. Speaker, the Quebec premier is to blame.

[English]

This is why I am so happy, even in perhaps the most modest way, that we have entrenched French language rights in the constitutional Accord, that we will at once be making our peace with those of our French-speaking brothers and sisters who have gone before us, who suffered discrimination and found that their language and culture were suppressed. My only sadness is that we have not quite given in this resolution the same rights to the English minority of Quebec; almost but not quite. But I believe what we have done for the English minority in Quebec will go a long way toward ensuring that the rights of English-speaking Quebecers will be safeguarded in the years ahead. It is my hope—and I think it is the hope of everyone in the chamber—that at some point, hopefully very soon in the future, when there will be an end to the independent party in Quebec, a federalist party once again will be in power, will come into the accord and join the other nine provinces and the federal government to preserve these rights and to entrench them for all Canadians.

I would be remiss if I did not say a few words about Section 133 of the present British North America Act and about my profound regret that the Premier of my province, notwithstanding the fact that he showed great vision in trying to reach a new constitutional accord, notwithstanding the fact that he supported our party which introduced the original resolution, has failed to extend these basic rights to the province of Ontario. That is something else for which we as Ontarians should fight in the years ahead. At the provincial level, and even at this level, by using the power of our influence as Members of Parliament, we should prevail upon the government of Ontario and upon subsequent governments or premiers of Ontario to make this last great gesture in the name of language equality in this country.

I just want to reflect on the process that we have gone through in the last year or so. I have been very caught up in that process and, like many hon. members on both sides of the House, have worked extremely hard both day and night, because this was not just another piece of legislation and not just another parliamentary act. This was something more profound. Very seldom in the lifetime of an individual can he or she make or hope to make some contribution to history. All of us in this chamber have made such a contribution in the past year, despite the differences in our opinions. I think it is a testimony to the greatness of our parliamentary tradition that we were able to come to an agreement in this country without bloodshed, without brother and sister fighting against each other, and without civil strife.

Let us look at other countries in the world to see how they acquired their constitutions. Even Great Britain went through some bloody times, going back to Cromwell, going back to the chartist movement in the 1830s, and the social protests in that country during the development of their constitution.

We have indeed been fortunate. We should indeed be proud that we have been civilized enough in this country to fight with every last ounce of our strength, but with words and not physically, not fighting with each other in a manner which would cause irreversible bitterness. That is why the process which went on in the last year was so rewarding and monumental.

I think especially of the deliberations of the Joint Special Committee on the Constitution. Day in and day out, this committee’s deliberations showed that democracy was indeed alive and well in our country. Many Canadians and many groups were represented and were able to express their point of view. Hundreds of briefs were received. The televising of those committee deliberations had a lot to do with provoking thought on the part of individual Canadians who otherwise would not have involved themselves with this question. We then saw the matter go to the Supreme Court. I would not want to reflect on judicial decisions, however, I must say that the decision that the original constitutional resolution was not constitutional in the convential sense must be accepted. I think that the Supreme Court really did not address the problem of the definition of proper conventions. It said that there had to be consent of the provinces.

However, I want to draw Your Honour’s attention to a statement made by the noted constitutional professor, the late E. V. Dicey, in his well known work entitled “The Law of the Constitution”. He stated that “the fundamental dogma of modern constitutionalism” is that “the legal sovereignty of Parliament is subordinate to the political sovereignty of the nation”. The Supreme Court of Canada asserted that the original resolution, as I stated, was not constitutional in the conventional sense and that the political sovereignty of the nation was defined as a substantial consensus among the provincial and federal governments.

As an individual Canadian, I am offended that convention is defined in those terms. It is for that reason that I have always been of the view—and I stated it in the House many years ago in a debate on a referendum bill, Bill C-9, in the second session of the Thirtieth Parliament~that political sovereignty should be defined as the will of the people as expressed by themselves rather than by elected politicians.

[Page 13059]

It is my belief that in order to determine the rules of the game and to determine the rules which will govern us as a people, as distinct from moral issues and other questions, we should consult the people via the referendum mechanism. It is not an idea which would be unique to Canada. I just look at what has happened in Great Britain in recent years, where there have been two such referenda, one on entry into the Common Market and the other on questions of devolution of powers for Scotland and Wales. Therefore, one cannot argue that referenda are not in the British parliamentary tradition.

It is significant that the offer of a referendum was made by the Prime Minister during the negotiations, and it was turned down by many of the provinces. I regret that. What we saw was that the Canadian way, as described by the Leader of the Opposition and many of the provinces, really was the wheeling and dealing among elected politicians and elected governments to determine the rules by which the public and the people of Canada would live. Indeed, one may describe this Canadian way as one which permits some degree of moral cynicism.. I am prompted here to reflect upon some of the thoughts of the late American theologian, Reinhold Niebuhr. In his classical defence of democracy, entitled “The Children of Light and the Children of Darkness”, he identified the powers of will and persuasion, the forces in society. It was Mr. Niebuhr who said that we may well designate the moral cynics who know no law beyond their own will and interest with a scriptural designation of “children of this world” or “children of darkness”. Those who believe that self-interest should be brought under the discipline of a higher law could then be termed “the children of light”.

He defines the children of light as those who seek to bring self interest under the discipline of this more universal law and in harmony with the more universal good. One does not want to get overly metaphysical in this very practical constitutional debate, but I think we must view what has gone on in the last little while with some disquietude that, in a sense, the will of the people themselves has been excluded and that there were those who could not put aside their own self-interest and could not seek a higher vision of what Canada was to become in the next century. However, in a sense, they settled for something which is good but which could have been infinitely better.

That is why I find it somewhat distasteful at the moment to see this continual bartering of rights, this continual trading off of native rights or women’s rights. Surely the protection of those rights can stand or fall on their own merits. I suppose that I will leave this place a happy person—whether after the next election or whenever—because I was able to play some small role in the historic development of this country in the bringing in of a new Constitution. However, I would exhort all of us to be, in Reinhold Niebuhr’s words, “children of light”. Let us put aside our self-interest and our petty divisions. Let us try to go beyond ourselves and see the greater view. Let us see the new vision of Canada. Let us try to attain that vision. We can start the attainment of that vision by trying to realize our original objectives.

What we have before us now is good. It is great. It is a source of great joy. But it could have been better.

I am reminded of a story we studied in high school written by Robert Louis Stevenson. I believe the title of the story was El Dorado. In life one must always be searching and grasping for a new ideal. We must have a new goal. I entreat members of the House of Commons to see as their goal the complete restoration of the charter of rights as it was originally intended in the resolution so that all Canadians may live in dignity and harmony.

I would exhort all of those who read the House of Commons debates and all those Canadians who follow the issues of the day not to let their politicians off the hook. We have triumphed, yes, but we could have done better.

Let us hope that in the days, the months and the years ahead we will finally achieve our complete goal, the complete entrenchment of the basic rights notwithstanding the notwithstanding clauses, so they can stand by themselves all time and enshrined for oblivious to political change. That is what I am pledging to work for in my remaining time as a member of Parliament. I hope that my colleagues feel the same way.

Some hon. Members: Hear, hear!

Mr. John Bosley (Don Valley West): Mr. Speaker, before beginning my remarks I want to say to the honourable member who has just finished speaking that it would be nice for once if someone on the government benches would admit that we viewed the Supreme Court decision on television. It is difficult to listen to members on the other side almost claiming credit for a resulting process for which all Canadian fought.

Before I came here in 1979, it was my privilege to represent many of the people I now represent at the municipal level of government. During that time I had the honour to be involved, along with others, several of whom are now members in this House representing all sides, in the creation and implementation of a bold new urban plan for the city of Toronto. That plan from start to finish took several years. It involved dozens of compromises, the creative co-operation of literally hundreds of citizens in Toronto and thousands of hours of meetings. At the end, one Toronto wag commented that the plan was perfect and typically Toronto. It had to be good because it displeased everybody equally.

When I left municipal politics to seek this office, I did so with a question mark in my mind. Those members who are familiar with the mind-set peculiar to municipal councillors that the sun rises and sets on one’s municipality, perhaps can best understand the doubt as to whether life in the House could ever be as stimulating as municipal work or whether any project here could ever be as important and challenging as our new plan was.

I rise today just a few days short of three years since I left municipal affairs to participate in this debate, a debate essentially about another plan, the proposed new plan for Canada’s constitutional future.

[Page 13060]

I can only say that this experience, the experience of being part of our constitutional renewal, has been in so many ways the highlight of my so far short public career. I want to try to express to you, Sir, to my party, to the House and, most important, to the people who sent me here, my intense feeling of gratitude for the privilege of being here at this historic time.

This promises to be an emotional debate. Earlier speakers members at various times showed through their tears the emotion they felt. I do not expect to have that effect on members, but I can say this, that however one views this resolution, whatever one’s political bias, there can be no doubt that the importance of this date for Canada is felt on all sides of the House.

The writing of constitutions must be among the most noble and important work in which people’s elected representatives engage. I am here in some measure because the previous member for Don Valley West, Mr. Jim Gillies chose not to run. Perhaps with your indulgence, Mr. Speaker, I might read into the record his favourite quote. He used it always to advise his constituents, now my constituents, on matters of importance. It seems this quote has merit in our discussions today. The quote will be familiar to many people here. It goes like this:

Make no little plans: They have no magic to stir men’s blood—make big plans, aim high in hope and Work.

The philosophy behind those words continues something along the line of: “Aim high in your hopes and dreams remembering that our grandchildren will probably do things that we never dreamed of. Let your watchword be justice and your beacon be hope,”

Let us be clear and sure that the spirit in which we approach this debate is exactly that: hope for justice for all Canadians, including women, men, our native people and all Canadians, especially the people of Quebec.

Let us also be clear that this debate must not delay dealing with the other urgent problems this country faces, and our unreasonable delay would serve no one.

There are several matters I want to raise in this debate. We are, however, approaching four o’clock and I would like to make sure that I put something on the record before I proceed to deal with what I think are absolutely vital questions in this debate, specifically the issues of equality of men and women, the issue of the protection of the treaty rights of our aboriginal people, and the amendments which my leader proposed earlier today.

We received a telex in which I believe the House will be interested because quite a bit of admirable discussion has taken place about attempting to persuade premiers to come on side with native rights and men’s and women’s rights. This telex came from the Premier of Ontario, the Hon. William G. Davis. It was addressed to the Right Hon. Joe Clark and to Duke Redbird, president, Ontario Métis and Non-Status Indian Association, Native Council of Canada offices, To those who want to know where Ontario stands, I can say it stands foursquare behind the entrenchment of the rights of the aboriginal peoples and for Section 28 unamended. I will quote for the record from the telex. It reads, in part:

Ontario remains committed to the accord signed on November 5. However, to the extent there is significant opportunity prior to the end of the debate in Ottawa to influence those who do not support the current provisions for women’s rights and the inclusion of aboriginal rights, we will be endeavouring to do so.

It continues:

We do express our sincere regret that aboriginal rights were excluded from that agreement.

It concludes:

We remain committed to the principle of entrenching rights for both women and native peoples.

Let there be no mistake about where Ontario stands.

I propose to continue that argument when I am next allowed to rise, Mr. Speaker.

Mr. Deputy Speaker: It being four o’clock, the House will now proceed to the consideration of private members’ business as listed on today’s order paper, namely public bills, notices of motions and private bills.

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