Document Information

Date: 1981-04-22
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 9398-9420.
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GOVERNMENT ORDERS

[Translation]

THE CONSTITUTION
RESOLUTION RESPECTING CONSTITUTION ACT, 1981

The House resumed debate on the motion of Mr. Chrétien, seconded by Mr. Roberts, for an Address to Her Majesty the Queen respecting the Constitution of Canada.

And on the amendment of Mr. Epp, seconded by Mr. Baker (Nepean-Carleton)—That the motion be amended in Schedule B of the proposed resolution by deleting Clause 46, and by making all necessary changes to the Schedule consequential thereto; and on the notices of amendments of Mr. Knowles, Mr. Baker (Nepean-Carleton) and Mr. Pinard.

Hon. Jean Chrétien (Minister of Justice and Minister of State for Social Development): Mr. Speaker, I am pleased to take the floor again in this protracted debate to explain to the House the amendments which the government wants to propose, the amendments we are prepared to accept, and also to set forth the reasons which prompt us as the government to reject the amendments proposed by the Progressive Conservative party, the official opposition.

First of all, Mr. Speaker, I should like to say that the government has proposed two main amendments. The first concerns the supremacy of God in our Constitution. As all hon. members know, in the course of the lengthy summer negotiations we had proposed a declaration of principle as the preamble to our Canadian Constitution in which it was clearly stated that we wanted the supremacy of God to be recognized in our society.

During the summer, and for many other reasons, we were unable to reach an agreement with the provinces on that point to establish the nature of the preamble to the Canadian Constitution, and our intention has always been to write in the Constitution that our society had to acknowledge the supremacy of God. We believe that the best place for that was the preamble to the Constitution, But as we have been doing since the onset of our proceedings in the House and in committee. we listened to hon. members, we received a number of representations, and I am pleased today, as a result of the many discussions in this House and the pressure from Canadians—l believe my department has received close to 7,000 or 8,000 letters urging me to have the supremacy of God included in the constitution—and that is why, as the first government amendment, I am pleased to announce to the House that our charter of rights will include a very short preamble which will read as follows:

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

Therefore, tomorrow night hon. members in the House will have the opportunity to include in the charter of rights the recognition of the supremacy of God.

The second amendment which the government wants to propose relates to the amending formula which might apply if, in the course of the next two years, the provinces cannot agree on an amending formula, thereby leaving us unable to submit any text of the provinces to the people of Canada in a referendum. There would be an amending formula in two years after patriation of the constitution. This amending formula we wanted was the one which has its roots in history and which had been approved by the eleven governments in 1971, namely the so-called Victoria amending formula.

When this amendment was dealt with in committee, as well as on a great many occasions after that, we received complaints, especially from the prairie provinces, that the so-called Victoria formula was creating for the prairie provinces a constitutional status different from that of the four maritime provinces. During the committee proceedings, I indicated that if the provinces—l mean, the western premiers—wanted to change that, they only had to say so. They did not say anything.

The Premier of British Columbia who had a special interest could have said something, because it has been established that the Victoria formula, especially that which concerns western Canada, had been demanded by the father of the current Premier of British Columbia, but the Mr. Bennett of today has not shown much interest. Therefore, under the so-called Victoria formula, an amendment to the Constitution would require the approval of the Canadian Parliament, two Atlantic provinces, the two central provinces, and two western provinces having more than 50 per cent of the total population of the four Western provinces. As it was perceived by Western Canada that this amending formula would create discrimination between the prairie provinces and the Atlantic provinces—

[English] That was stated to me very well by the hon. member for Provencher (Mr. Epp) in committee on November 12, when he said:

You gave Prince Edward Island a commitment. l am asking you for the same commitment for western Canada.

At that time I said l had to wait and see the reaction of the first ministers. At the same time the hon. member for Yorkton-Melville (Mr. Nystrom), who was the spokesman for his party in the committee, was pressuring me on that matter. Many of the members of the committee felt that it was very important. There has been some little movement in the New Democratic Party since that time and in the last few weeks the pressure has been coming from the leader of that party. Some of my colleagues in cabinet, particularly the minister from Manitoba, were putting pressure on me about that. As a result, cabinet has accepted the change and I am pleased today to be able to give the commitment which the hon. member for Provencher requested. Accordingly, the amending formula will be changed by deleting the population requirement in western Canada. Western Canada will be treated in the same way as Atlantic Canada.

Some hon. Members: Hear, hear!

Mr. Chrétien: In other words, the amendment will be made, with the approval of the Parliament of Canada, to include any two provinces in western Canada, any two provinces in Atlantic Canada and the two provinces in central Canada.

[Translation] As I indicated on several occasions to the House and the media, Mr. Speaker, we have also agreed, as the government, to accept the amendments proposed by the New Democratic Party. When we were sitting in committee, we received a great many representations concerning Clause 15, which deals with the rights of women and sexual equality and which has been the subject of a long debate. That clause has been accepted by virtually all committee members. After the committee had completed its work, the groups representing women kept on making representations to emphasize their eagerness to have absolute equality of the sexes enshrined, representations which I have referred to the cabinet, assuredly with the assistance of the hon. Minister of Employment and Immigration (Mr. Axworthy) who is responsible for the status of women to Parliament, and we have been glad to allow the New Democratic Party to propose this amendment. I think that the hon. member for Burnaby (Mr. Robinson) had raised the issue in committee on several occasions, and this party will gladly vote tomorrow in favour of this NDP amendment which will ensure equal status to women, as requested by many pressure groups.

We also accept that the other part of the NDP amendment, according to which the constitutional rights of our native peoples which are new or will now be enshrined in the Canadian Constitution may only be amended in the future by using the general amending formula, that is, by including in clause 54 of our constitutional project the fact that the rights of our native peoples, as protected by the Constitution may only be amended by means of the general amending formula which gives even greater protection to our native peoples, the Indians, Eskimos and Métis here in our own country. We shall be pleased to vote for that amendment.

[English] l would like to turn now to the proposals put forward yesterday by the Progressive Conservative party, the official opposition. In his haste to please the eight provincial Premiers, the Leader of the Opposition (Mr. Clark) has put forward a document which is unfortunately illogical and inconsistent. The Tory party thinks that it is proposing patriation and an amending formula only with the approval of seven provinces. However, the Tory party’s last minute drafting proposes nothing of the sort.

As the Leader of the Opposition should know, the resolution asks the United Kingdom to enact the Canada Act, which will include as a schedule the Constitution Act, 1981. The amendments he proposes do not touch on the Canada Act, which deals with patriation and would come into force immediately in Great Britain. Also it would serve to end Britain’s role with respect to Canada’s Constitution. The Tory amendments would provide that the Constitution Act, 1981, or any part of it, would come into effect only if approved by seven legislatures representing 50 per cent of the population. However, it is the Constitution Act, 1981 which contains the amending formula. In other words, an amending formula would only come into effect if between now and July, 1983 it is approved by seven provinces.

What would happen if there were no such approval of an amending formula? Patriation would have taken place because of the enactment of the Canada Act. Britain would have given up its sovereignty over the Constitution. The Canadian Constitution would have been patriated without an amending formula, the exact situation we faced in 1931.

Mr. Baker (Nepean-Carleton): That is not right.

Mr. Chrétien: Because we could not agree to patriate with an amending formula, we asked Great Britain to retain legislative jurisdiction over the amendment of our Constitution. The alternative at that time was patriation without an amending formula. This was considered to be highly unsatisfactory because it would have left a great deal of uncertainty as to how amendments could be made.

It is that alternative which the Tories are proposing today, because we will be accepting the Canada Act without an amending formula. If we do not agree on an amending formula, there will be no amending formula. Therefore, we would be back to where we were in 1931, and no one is interested in that.

Some hon. Members: Oh, oh!

Mr. Chrétien: Accordingly, the Leader of the Opposition, although he may not know it, is proposing unilateral patriation and an amending formula to come into effect if agreed upon by seven provinces. If there is no agreement, he is proposing the creation of a legal vacuum. That is the consequence of his party’s proposal and it is the first, the only and the absolute reason to vote against it.

Some hon. Members: Hear, hear!

Mr. Chrétien: Let us look at what would be the effect if we were to have agreement on an amending formula. Let us therefore examine the amending formula which ‘the opposition now favours. After proposing three amending formulas, including one which would have required unanimity and one proposed after the committee hearings which would have provided for opting out of a charter of rights, the Tories have come with their fifth preferred formula.

First, the amendment contains a provision whereby constitutional amendments may be enacted following the approval of seven legislatures representing 50 per cent of the population. After it has been approved, amendments would normally be made by seven provinces with 50 per cent of the population. In other words, as a general rule, constitutional amendments could be made without the consent of all the provinces. For example, amendment would be possible with British Columbia, Alberta and Saskatchewan opposed. Or, to take another example, Quebec, or Quebec and New Brunswick, would no longer be ensured of a voice in the protection of the French language at the federal level.

[Translation] We know what that means. It means that with that formula, a majority in Parliament plus seven provinces could decide that in the future French would no longer be spoken in the House; that we would be denied the use of the official language of our choice in federal courts; that in all federal institutions in which we are represented we would no longer have any bilingualism; that the Official Languages Act soon to be enshrined in our Constitution, to protect it against the whims of the majorities, could be abrogated precisely on the whim of the majorities, without the Quebecers or even one or two of the other provinces favourably disposed toward the French fact being able to do anything about it. That is why, Mr. Speaker, the Progressive Conservative proposal is totally unacceptable to us.

[English] Second, while the amending formula would be adopted by seven legislatures representing 50 per cent of the population, it would be only natural that it be changed in the same way. However, that is not the case. For some reason, changes to the amending formula will require unanimity. Here all provinces will acquire a veto right. The logic is less than overwhelming. The Tory party will drop the referendum provision for breaking deadlocks. Despite a history of being unable to agree on constitutional change in Canada, the opposition does not see the need for a deadlock-breaking mechanism. Despite our democratic traditions, they do not trust the people to break deadlocks between governments.

What is the effect of not having a deadlock-breaking mechanism? Let me give an example. The federal Conservative party is in favour of a charter of rights as being the will of Canadians. They have said that many times. However, they propose an amending formula whereby a charter of rights can only come into effect if approved by seven provinces. in other words, it could be vetoed by any four Premiers.

The Tory proposal will not allow this veto to be tested in a referendum whereby Canadians could express their will. l will give an example. The six biggest provinces in Canada represent 88 per cent of the Canadian population, roughly 22 million people. The four smaller provinces represent about 12 per cent of the population, roughly three million people. Suppose that federal parliamentarians plus 88 per cent of the Canadian population want a charter of rights. We may not have one because 12 per cent of the population could deny Canadians a charter of rights or bargain a charter of rights against jurisdiction over fish, oil or other resources.

The Leader of the Opposition argues that there will be no opting out of a charter of rights. How can he guarantee that there will be a charter of rights under his amending formula? The eight Premiers who want to opt out will not have to worry because they will be able to veto the very existence of a charter of rights.

Furthermore, the Conservative proposal states that before the Constitution Act or any provision thereof comes into force, it will require the approval of seven provinces. We already know from last summer that all the provinces are opposed to the inclusion of a clause on property rights. We spent three months on that subject and all the provinces opposed it. Therefore, the amendment on property rights is mere grandstanding. The Leader of the Opposition and the opposition party know that this is one provision to which the provinces will never agree. It is just grandstanding. Under their formula, there will never be property rights in the Constitution.

The Tory amending formula will allow any four provinces to veto any provisions of the charter. In other words, the constitutional guarantee of the right of Canadians to live and seek work anywhere in Canada will be subject to the veto of any four premiers who want to prevent Canadians from other provinces from seeking work in their own province. What about mobility rights?

The same applies to language of education. Does the opposition really believe that with a new amending formula, Mr. Levesque will agree to a constitutional guarantee of English minority language education rights in Quebec? However, if the other premiers do by chance agree to such constitutional protection for the French-speaking minorities in their provinces, would the Leader of the Opposition be prepared to use his amending formula to impose such guarantees on Quebec despite the objection of that provincial government?

What about aboriginal rights? Four provinces could block these as well. There would then be no aboriginal rights. What about non-discrimination rights, rights of women, the rights of the handicapped and all those matters we spoke about so much in this House in the last seven months? Some premiers could find that the Constitution is affecting their provincial jurisdiction.

What about legal rights? ln effect, the Tories want a charter but will ensure that either there is none or, if there is one, that it is an emasculated charter of rights, and that is not what we want.

As far as the proposed amending formula is concerned, the Conservative party has maintained the checkerboard formula of the eight provincial premiers. Opting out remains. I might add here that we have been told during this debate by members of the opposition that without opting out there would have been no Canada Pension Plan, Quebec Pension Plan or medicare. I want to remind hon. members that neither the Canada Pension Plan nor medicare is a constitutional right. They were enacted by statute as a federal expenditure.

Mr. Trudeau: By a Liberal government.

Mr. Chrétien: And by a Liberal government acting against the will of the provinces.

Some hon. Members: Hear, hear!

Mr. Chrétien: l have to tell the opposition that there is a very big difference between opting out of a statutory program and opting out of a provision in the fundamental law of the country.

Then the Conservatives propose that there be a special provision to the effect that the Constitution does not abrogate Parliaments power to legislate with respect to abortion and capital punishment. The law officers of the Crown have expressed their opinion that nothing in the proposed charter affects the power of Parliament to make laws respecting abortion and capital punishment. However, a precise statement to that effect in the Constitution would open the door to questions as to why other subject matters have not been specifically excluded. There is a rule of interpretation that I learned in my second year of law school: “inclusio unius exclusio alterius”. ln English, that means to include one but exclude others. That is why we cannot accept the opposition’s proposal; it could have a devastating effect on the Canadian charter of rights.

The final change proposed is the creation of a permanent constitutional conference—this is one of the good proposals but the conference could not begin its functions until its creation is approved by seven legislatures. In other words, until the provinces agree on an amending formula, perhaps as late as 1983, or perhaps never, there could not be any constitutional conferences. The formula has to be approved first by the provinces before the conferences can start. Therefore, I prefer our proposition that there be two meetings in the next two years. Everyone will have to be there. In the meantime, we will apply the unanimity rule. It is less complicated. It is clear. We could wait a heck of a long time before the other proposal crime into effect.

The view of this government is that there should be at least two constitutional conferences in the next two years. The opposition has been asking us to meet the premiers, but has proposed a mechanism whereby there may never be a constitutional conference. After 54 years of frustration, the Tory drafters are proposing more delay. It is the view of the government that we must act now.

[Translation] We have come a long way since last October. When l introduced the resolution on behalf of the government in October, quite a number of people thought it was deficient in many regards, and it was so because we had tried to propose a charter that would please each and every one, all the premiers at the same time, and that is very, very difficult. Today, we have reached the end of this debate and l am very happy to see that we can bring it to a close in a more civilized fashion because finally, the majority of hon. members can express themselves as democracy would have them, and tomorrow evening we can vote on these amendments. Then we shall wait for the Supreme Court ruling. The matter was not referred to the Supreme Court by us. How many times have l said in this House that the judiciary was not to be involved in the legislative process. The provinces are the ones who dragged the matter before the courts; we won two decisions and lost one.

But what is astonishing, with the beginning next week of the last phase which will l cad to the final result, is that the opposition is changing its mind and that the provinces are now saying that legality is not important. lt is not so much a legal issue as a political one. But who instituted legal proceedings against us? The governments of Quebec, Manitoba and Newfoundland. Who asked us to wait for the Supreme Court’s ruling? The opposition. So we are saying today that we will respect the supremacy of God, as it is enshrined in the Constitution. The opposition is saying: no, no, no, it will become a political issue if you win, but it will remain a legal one if you lose.

[English] I do not want to take too long as my time is quite limited, but let me tell you, Mr. Speaker, that the result of the work we have done will be one of the most important pieces of legislation to be enacted in the last 50 years.

Some hon. Members: Hear, hear!

Mr. Chrétien: It is hoped that what we have here today will determine what will be the Canada of tomorrow. There have been more contributions toward this piece of legislation than any other piece of legislation. How many provisions do I now read in the charter of rights that were not there in October? I note the presence of the hon. member for Don Valley East (Mr. Smith) who is chairman of the committee on the handicapped. His committee put pressure on me. We were not sure that we should include their proposal but it is now there. I remember that the members of the NDP, of my party and the Tory party were very cheerful in the committee on the Friday afternoon when we agreed that we should recognize at last aboriginal rights in the Canadian Constitution.

Let me say a word about women’s rights, and l will terminate on this subject.

[Translation] The Acting Speaker (Mr. Ethier): Order please. I regret to inform the hon. minister that his time has expired.

The hon. member for Broadview-Greenwood (Mr. Rae) has the floor.

[English] Mr. Bob Rae (Broadview-Greenwood): Mr. Speaker, the theme of my remarks is taken from the great teacher Hillel, who asked three famous questions: “If I am not for myself, then who is for me? But if l am only for myself, then what am I? And if not now, when?”

The first question, “If I am not for myself, then who is for me?”, strikes at the core of the dilemma in which we Canadians find ourselves. The Fathers of Confederation, some 114 years ago, worked hard to produce in Canada a Constitution that reflected the needs of that time. That we are here today is a measure of their success, but like all measures it was not perfect for all time.

Since the British North America Act of 1867 was an act of the British parliament, the only way it could be amended was for the British parliament at Westminster to make the changes. The British parliament has done this at the request of the Parliament of Canada several times over the past 100 years. Since 1867, it is important to know, Canada has become self-governing in most important senses of the word.

Yet, Mr. Speaker, there has always been something missing. That something has been the means to forge our own constitutional identity here in Canada. Hillel’s question puts it very clearly; we have to be for ourselves before we can be for anyone else. Yet, Mr. Speaker, we cannot be fully for ourselves so long as the Canadian Constitution remains an act of the British parliament and not something which truly belongs to the Canadian people.

This debate is not just a bunch of lawyers arguing about the meaning of sovereignty. The patriation of the Canadian Constitution is a critical step in Canada’s coming of age. Patriation is not the last step to nationhood but it is a necessary step. If we are to focus in the next decade on the task of patriating our economy, which I believe in profoundly, we have to act now on the question of the Constitution. The division in the country is over how this should be done.

Hillel’s second question, “If I am only for myself, then what am I?”, speaks directly to this debate. If our preoccupation becomes not what is best for the whole country, but simply what is best for a province or a region, or even, I might say, what is simply best in the immediate or short-term interest of one political party or another, then Canada will clearly be the loser. No province likes the prospect of losing an absolute veto over any future constitutional change, but the hard fact is that if we give a veto to each and every province we shall never achieve any significant progress in reworking the Canadian Constitution.

This resolution does not necessarily impose an amending formula. What this resolution says is: Here is the best effort to date. If the premiers can find a better one, we will let the Canadian people decide between the two in a referendum. Eight of the provincial premiers met last week and produced a new amending proposal. They did not deal with the charter of rights, they did not deal with native rights, they did not deal with the question of equalization, or even with the question of provincial control of resources; they dealt with one question and with one question only, and that was the amending formula.

There is, of course, a vital difference in principle between the method of amendment proposed in this resolution and the method proposed by the eight premiers. Under the first, that which is contained in the federal resolution, the constitutional amendments approved by the federal government and the provinces would apply to all Canadians and to all provinces. Under the second, that of the eight premiers, provinces that did not like an amendment because they thought it affected their existing powers could simply opt out.

In my view, the eight premiers’ proposal is a classic example of people being only for themselves. It denies the essence of the creation of the federation of 1867. Frank Underhill once described a nation as a “people who have done great things together in the past and look forward to doing great things together in the future”. An “opt out Canada” means that what we have in common in Canada would be constantly under threat. If one province or any group of provinces continually exercised their power to opt out of changes they did not like, Canada would no longer be a people who did great things together in the future, and I question whether we could long survive as a nation.

In refusing to deal with the charter of rights now, the eight premiers have made much of the fact that they represent 60 per cent of the Canadian people and that we should put off consideration of the charter until some unspecified time. They have also said that any provincial majority should be able to opt out of any features of the charter they do not like as well as future amendments.

The premiers have failed to recognize that three times in the past decade all three federal parties have gone on record as favouring a charter of rights for all Canadians. Do not the members of this House represent Canadians who live in those eight provinces? Is the House of Commons not in Canada? Do we not speak for Canadians? Do Canadians in Manitoba really want fewer or different fundamental rights than their cousins in Saskatchewan or Ontario? And can we survive as a country if the fundamental attributes of citizenship are different in neighbouring provinces?

I want to turn now to the third principal feature of the resolution, the charter of rights itself. I want to say a few words about what the charter will do, why it is necessary and why it is important that we include it as part of this resolution. In doing so, I am answering Hillel’s third question, which was the theme of my remarks: “And if not now, when?”

The issue is not a Canadian charter versus a charter from Westminster. The issue is a charter of rights debated, studied and approved by the Parliament of Canada dealing with the basic attributes of Canadian citizenship, versus a Canada where the guarantees of these freedoms are subject to permanent veto by the provinces or, equally fatal to our country, subject to some provinces deciding to opt out of basic rights.

Let us look at what the charter actually provides and what it will really do. The charter guarantees certain freedoms which Canadians have come to recognize as fundamental: freedom of speech; freedom of association; freedom of conscience and religion; the right to work and live anywhere in Canada; the right to vote in democratic elections; the right not to be detained by the state without having a criminal charge laid; the right to counsel; the right, in the case of certain serious charges, to a trial by jury; protection against the state having unlimited powers of search and seizure; protection at trial against the use of illegally obtained evidence; the right to a bail hearing; and other associated legal rights.

The second thing the charter does is to guarantee what it calls equality rights. This will have the effect of making discrimination on the grounds of sex, colour, creed, religion and mental and physical disability unlawful. It means that every citizen of Canada has the right to demand of his fellow citizens and of his government, whether provincial or federal, that he or she be treated equally and with respect. It means that those citizens who feel that they have not been treated equally can take their fellow citizens and their governments to court to have those rights enforced. It means that certain practices and prejudices will have to change. It means that minorities, however temporarily unpopular, as well as all Canadians will have constitutional guarantees of equal treatment before and under the law.

This is not just a right to fair procedure; it is a right to equality in the substance of the laws themselves. It means that no person and no government is above the law but is subject to it. It means that federal and provincial governments are equally subject to claims by all Canadians, of whatever background, that they are to be treated equally in form and in substance and that, if they are not treated equally, they can take their government to court. It means that this right to take the government or anyone else to court cannot be unilaterally taken away by either the federal government or a provincial government.

This is a charter with teeth, and many of the weaknesses in the courts’ interpretations of the Diefenbakcr Bill of Rights will be removed because of the clarity of the standard Parliament is setting in this charter. It is to clarify these standards further that our party is putting forward its amendments respecting women and native people.

The third feature of the charter is the section on language rights, the guarantee that French and English will be the official languages of the country and the guarantee that minority language rights in education will be protected everywhere in Canada wherever numbers warrant. I regard these provisions as the fulfilment of the promise of 1867. I am proud of our official languages, and so is our party. We have to provide for their full expression.

[Translation] To those Quebecers who are convinced that the proposed provisions ensuring minority educational rights strike a blow at provincial integrity and jurisdiction, I must say that I do not agree with these conclusions for fundamental reasons. The educational rights of francophone minorities are now protected throughout the country. It was a long and hard-fought battle, but we won over the forces of reaction and intolerance in the rest of Canada. There will never be another Penetanguishene. This is not simply a matter of education, but a matter of survival and of cultural development. The French language is as vital for the life of francophones as the air they breathe. If these minority educational rights are recognized, they must also be recognized in Quebec. I cannot believe, Mr. Speaker, that to recognize minority rights in well-defined and limited provisions such as those in the resolution really threatens the francophone majority in Quebec, in view of the vigour shown by Quebec in the last few years and of the sure and confident manner in which Quebec has managed its political and cultural affairs for so long.

Personally, Mr. Speaker, I sincerely regret the decision of the Ontario government not to recognize officially what actually exists already for Ontario francophones as far as the recognition of French in the legislature and in the courts is concerned. If clause 133 were to apply to Ontario, nothing would change in actual fact, but it would have a significant symbolic value for francophones in Ontario and elsewhere in Canada. The rights of Franco-Ontarians should be recognized in the same way as are those of the English minority in Quebec; this would be only fair.

Some hon. Members: Hear, hear!

Mr. Rae: For my part, I am deeply disappointed in the Ontario government which, in the name of certain egotistical interests, refused to be generous to the francophone minority in Ontario. I sincerely hope that the Ontario government will change its policy in this regard.

[English] In addition, the charter of rights sets out to guarantee the principle of aboriginal rights for Canada’s original peoples, the Indian, Metis and Inuit. There is also the assurance that the question of land claims and other aspects of native rights will be on the agenda of forthcoming federal provincial meetings between the first ministers.

The explicit recognition of the historical and collective rights of Canada’s original peoples is, in my view, a milestone in our constitutional history—

Some hon. Members: Hear, hear!

Mr. Rae: —a milestone which would not have been achieved without the determination and courage of a number of people, including my leader, the hon. member for Nunatsiaq (Mr. lttinuar) and the hon. member for Cowichan-Malahat-The islands (Mr. Manly). It is a hard fact of political life that had these members, dealing with both the leaders of the native communities and the government, not been prepared to forge a new confederation bargain, there would have been no recognition of aboriginal and treaty rights in the resolution to form part of an amended Canadian Constitution.

The charter also guarantees the rights of those Canadians who are neither French nor English in their heritage. Across the street from my home on Withrow Avenue in Toronto is an elementary school which is no less international and multicultural than the United Nations itself, but that is in every sense Canadian. It gives me great joy to represent a constituency where Canadians of Greek origin, of Chinese origin, of English origin, of Scottish origin and of all backgrounds live and work together. They are proud of their parents and their grandparents. They are proud of the countries and the cultures from which they come. They are also deeply proud of the country in which they have chosen to live, Canada, and prouder still of the common inheritance which their children and grandchildren will have as Canadians. I am delighted that the charter of rights reflects the diversity of all those who cherish their Canadian citizenship.

That is what the charter of rights does. Why is it necessary? There are observers of all political persuasions who tell us that Canada’s common law and civil law traditions are perfectly adequate to protect civil liberties in Canada and that an entrenched charter would give the courts powers which are better left in the hands of legislatures.

There is obviously not time here to deal with all the pros and cons of this issue, but it needs to be said that our traditions have not been adequate to protect many Canadians and that as our country becomes even more diverse we can no longer rely simply on the good will of majorities to protect the rights of minorities.

Let me remind the House that while many Chinese Canadians built Canada’s railroads and many died building those railroads, they were not regarded by the majority as fit to be Canadian citizens until 1949. Let me remind the House that generations of Chinese were not allowed to be reconciled with members of their family because the majority at the time saw fit to shut the doors to all Chinese immigration between 1923 and 1946. We must think of the hardship and isolation that enforced separation must have meant for those we are now so proud to call fellow Canadians.

The history of Canada’s treatment of its native people is filled with examples of discrimination and prejudice of which we cannot in any way be proud. It is a hard fact that we have as a nation yet to accept fully in our hearts and laws, as well as in our rhetoric, the multicultural and indeed multiracial character of our society. Tragically there are many Canadians who, by virtue of the behaviour of their fellow citizens, have been made to feel that they are in Canada on sufferance and not as a matter of right. There are, ominously, signs of the revival of the most vicious kind of racial prejudice in the re-emergence of the Ku Klux Klan and similar groups in Canada.

Japanese Canadians know from bitter experience just how generous the majority and the Liberal government of the day was prepared to be to protect their rights in World War Il. In the meagre compensation paid to them by the Liberal government after the war, we know what “parliamentary sovereignty with no entrenched charter of rights” has meant for them.

There arc countless other Canadians who have known over past generations the full meaning of the words, “tyranny of the majority” which has from time to time taken hold in our country and made life so difficult for those who thought differently, spoke differently, prayed differently or lived differently. These differences must quite simply be protected; that is the meaning of the charter of rights.

Some hon. Members: Hear, hear!

Mr. Rae: Canada is not a homogeneous country or society. We cannot pretend any longer that minorities either have been or will be protected unless those minorities have guarantees, guarantees which are not simply those of a parliament or of a legislature but are guarantees of a constitution.

Some spokesmen have made much of the fact that rights do not come from governments—but rather come from God, or at least from one’s view of what it means to be truly human. I agree with that view. By the way, that is why our party will be supporting the amendments put forward by the Liberal party to the preamble. If we are to take rights seriously, we must recognize that their foundation stems not from what is convenient for the state to give, but rather from what freedoms are necessary to express our humanity in all its fullness.

An entrenched charter does not simply come from Parliament or the legislatures. We are not giving rights or taking them away whenever it is convenient. An entrenched charter recognizes that those rights which encourage the full freedom of the human personality need the additional protection of a constitutional guarantee in order to be secure. it is precisely because rights are not simply utilitarian conveniences to be given and taken away at will by legislatures and parliaments that we need to entrench them in the Constitution.

I find it completely contradictory that those same critics who have made such a point of saying that rights do not come from governments but that rights are prior to governments, a point of view which l wholeheartedly share, then go on to say that these same human rights can only have effect in those provinces which are prepared to pass them. If the rights are basic, surely they cannot be nullified by a provincial legislature.

This checkerboard theory of fundamental rights in Canada is said to reflect our historic diversity. What nonsense! We are not talking about diversity but about whether a native Canadian living in Manitoba should have the same rights as his brother in Ontario; whether a disabled Canadian in Quebec should have the same claim to fairness from his countrymen as his sister in Nova Scotia. The fundamental question is whether we can long survive as a nation if there are no fundamental attributes of citizenship that apply regardless of which province one happens to live in. The view that fundamental human freedoms, the basic attributes of Canadian citizenship or what it means to be a Canadian, should be subject to sterilization by any province has on more than one occasion been rejected by the Supreme Court. It should also be rejected by Parliament.

In making explicit and then guaranteeing rights which have become fundamental to our view of what it means to be a Canadian, we cannot then go on to make those rights depend upon the geographical roulette of where in Canada you happen to live. Federalism is not simply the stringing together of a number of sovereign states or a mere community of communities. ln the words of the British North America Act of 1867, we created a federal union, strengthened by the growth of new provinces and by the historic decision of Newfoundland in 1949 to join with the country. We did not create an agency of provinces in 1867; Canada is more than the sum of its parts.

I began my remarks with a reference to the famous three questions of Hillel. The last question was: “And if not now, when?” It is now clear that the tensions within federalism are far more than dual and far more than simply cultural or linguistic. That is why the debate on the Constitution is not irrelevant or the private fantasies of one man. The challenge of constitutional, economic and political reform will be with us long after the Prime Minister (Mr. Trudeau) disappears from the scene.

Many years ago a Canadian who has contributed much to the political, cultural and intellectual life of our country, Frank Scott, said that one day Canada will have a rendezvous with the BNA Act. Canada’s rendezvous with the BNA Act is imminent, and I am proud that my party and, if l may say so, my leader have not flinched at the prospect of this rendezvous but rather have welcomed it.

Some hon. Members: Hear, hear!

[Translation] Mr. Henri Tousignant (Témiscamingue): Mr. Speaker, l do not intend today to give a historical account of federalism in Canada. This has been done many times already—

[English] Some hon. Members: What is going on?

Mr. Taylor: Mr. Speaker, I rise on a point of order. Have we lost our right to free speech? Do we on this side of the House never get a chance to speak? What are you trying to do, knock us out or something?

The Acting Speaker (Mr. Ethier): Order, please. No members have been prevented from speaking in the House; it depends upon when they are recognized. The Chair has always followed the tradition of recognizing the parties evenly.

Some hon. Members: Oh, oh!

Mr. Taylor: We have already heard two Liberals.

The Acting Speaker (Mr. Ethier): For the information of the hon. member, I could go through the list of speakers who have participated so far. It is traditional that the Chair goes from government to opposition. This has been a long-standing tradition, and l have followed it quite fairly. Let me start with the last round. The last NDP member who spoke yesterday afternoon was the hon. member for Brant (Mr. Blackburn). Then we had one Liberal, one P.C.; one Liberal, one P.C.; one Liberal, one P.C.; one Liberal, and the eighth speaker today was a member of the NDP, the hon. member for Broadview-Greenwood (Mr. Rae). Now we go back to a Liberal and then a P.C.

Mr. Epp: Mr. Speaker, l rise on a point of order. I am not in the habit of questioning what the Chair has said, but when l approached the Chair earlier today, Your Honour will recall that I reiterated a conversation which had taken place yesterday with a member of the chair. The arrangement yesterday was that there would be four speakers for the government side, three speakers for our party and one for the NDP.

Some hon. Members: Oh, oh!

Mr. Epp: Just let me finish. You will recall that at the same time the hon. member for Brant (Mr. Blackburn) came to the Chair. Through the gcntlemanly arrangements which take place in this House, we agreed that he would be recognized earlier in that first cycle of eight because of his own time schedule. That was the arrangement which was left with your predecessor yesterday, Mr. Speaker. It was agreed to by all parties.

Today when you recognized the hon. member for Broadview-Greenwood (Mr. Rae), I came up to the Chair and pointed the matter out again. In order to try and rectify the situation you said subsequently that you would be recognizing the hon. member for Wellington-Dufferin-Simcoe (Mr. Beatty).

We are now in a difficult situation. On the one hand you say that you will be recognizing a member of the government party, and on the other a member from the opposition. That is fair and I have no objection to it, but I say to you, Mr. Speaker, with all the respect I can muster, that a mistake was made in terms of the arrangements which were agreed to yesterday.

Mr. Collenette: I rise on a point of order, Mr. Speaker. I do not think that we should prolong this matter. If it is to be a point of absolute determination on the part of the opposition, I am sure we can reach some accommodation. But I would like to set the record straight.

Yesterday afternoon l informed the Deputy Speaker that during the three days of debate the government would be exercising its normal right on a government motion, which is to put up a speaker for each speaker from the opposition. As you will note, the hon. member for Victoria-Haliburton (Mr. Scott) had the floor when we were debating this matter a few weeks ago, and he continued his remarks yesterday. In fact, he was allowed, theoretically, ten minutes more than the order since we felt he had started under the old rules and should not be restricted. We have since alternated government speakers with opposition speakers. There was some arrangement made yesterday to accommodate the hon. member for Brant; but that was strictly a matter of the Chair dealing with the opposition party. The normal rotation is four government speakers and four opposition speakers; that is, four Liberals, three Conservatives and one member of the NDP.

At this point in time, Mr. Speaker, according to normal practice and according to the point I made yesterday with the Deputy Speaker and with the hon. member for Lachine (Mr. Blaker), in telling the Chair who our speakers would be, it is now the turn of the hon. member for Témiseamingue (Mr. Tousignant). You have recognized the hon. member for Témiscamingue, and if members opposite are going to force the issue, move a motion and cause a vote to be taken, that is something we do not want. We do not want any unpleasantness. I am sure my hon. friend from Témiscamingue will withdraw. But I must say that in this case it is the right of the government member, having been recognized, to speak in the normal rotation.

The Acting Speaker (Mr. Ethier): Order, please. I would like to clarify this situation. I have been reminded by the hon. member for Provencher that a decision was made by the Chair yesterday of which I was not aware. Subsequently, the Parliamentary Secretary to the President of the Privy Council (Mr. Collenette), said that if there was any arrangement it is not that any speaker on the government side will be lost. He said that he intends to exercise his party’s prerogative, which is to have one speaker for the government opposing one speaker for the opposition. I also informed the hon. member for Wellington-Dufferin-Simcoe (Mr. Beatty) that he would be the next speaker.

There was no other hon. member seeking the floor at that time, nor had I received notice from any member seeking the floor. I did receive a note from the hon. member for Temiscamingue (Mr. Tousignant) informing me that he wished to seek the floor. Therefore, following the tradition of alternating from one government speaker to one speaker from the opposition, I had to recognize the hon. member for Témiscamingue. The parliamentary secretary now suggests that there could be an undertaking made by the hon. member for Témiscamingue that he would seek the floor later.

Mr. Tousignant: I agree to that, Mr. Speaker.

The Acting Speaker (Mr. Ethier): The matter has now been resolved. The Chair recognizes the hon. member for Wellington-Dufferin-Simcoe.

Hon. Perrin Beatty (Wellington-Dufferin-Simcoe): Mr. Speaker, I wish to begin my remarks by thanking the hon. member for Témiscamingue (Mr. Tousignant). This situation was not of his making and I appreciate his graciousness and generosity in being willing to stand down to allow a member of the official opposition to speak now.

In the remarks of the Minister of Justice (Mr. Chrétien) there was very little with which I agreed. But there was one point I agreed with, namely that this resolution which is before the House today is one of the most important pieces of legislation to come before Parliament in 50 years. That is why the conduct of this debate and the resolution itself is critical, and it is why the attention of all Canadians is focused today on Ottawa. This is why Canadians from one coast to another are expecting this government and this Parliament to accept their responsibility to unify Canadians, to bring this country together; to have as the last achievement of our nationhood in Canada an act which unifies Canadians, which gives them hope for the future instead of embittering them, driving them apart and casting serious doubts upon our ability as a country to survive in the future.

Parliament is now entering the second to last phase of the government’s constitutional plans this week. It is a project which was justified to Canadians on the grounds of unity and national maturity, but which was conceived and promoted in division and colonialism. The government’s strategy, which was made clear in the infamous Kirby memorandum and which was also made clear today in the partisan, divisive and bitter speech made by the Minister of Justice (Mr. Chrétien), has been to pit region against region and Canadian against Canadian. It has been to use our last colonial ties to make major changes to our Constitution in a foreign country.

Gaining the last element of our independence, which should have caused unparalleled unity among Canadians. Embedding basic human and political rights in our Constitution, should have caused celebration of our good fortune as one of the freest people on earth. Instead the government, through its stubborn and dangerous belief that our Constitution is the property not of 23 million Canadians but of one man, has corroded the national ties which keep this Canada from breaking into ten unconnected fragments of a country. It is common sense and good will which binds Canadians together; act the government’s actions have defied common sense and have damaged that goodwill.

When members of this House listened to the speech given by the Minister of Justice today, or when they sat through the constitutional screed of the Prime Minister (Mr. Trudeau) in which he spoke for two hours and 13 minutes on March 23, did members hear either of them refer to the Canadian traditions which form much of this country’s rich heritage? Did they hear a defence of our Constitution which has helped Canadians stay united and free for over a century while many other countries which had a history of civilized behaviour far older than ours, disintegrated into social chaos and dictatorship? Did they hear either the Minister of Justice or the Prime Minister praise our federal system of government, which with our thinly spread population dispersed over the second largest land mass of any country in the world, has managed to strike the proper balance between the needs of the nation and the desire of Canadians to maintain regional and ethnic cultures and traditions? Those elements of our Canadian system of government, if they were mentioned at all, did not feature prominently in speeches which were filled with talk of failure, with bitterness and contempt for those in Parliament and for the provincial levels of government who dare oppose one man’s constitutional plans.

The Prime Minister and his confederates in the New Democratic Party have chosen not to co-operate with Canadians to modernize a Constitution which has served this country well, but to impose one man’s constitutional vision against their wills. That this course was followed at all is, of course, regrettable. That it was followed, even though it was unnecessary, is tragic.

My party believes that our Constitution can be amended in a way which respects Canadian traditions and unites our people. That is why my leader took the courageous decision last October to oppose the government’s constitutional juggernaut. Our party fought for and won the right of Canadians to see and hear the constitutional committee’s deliberations. We fought for and won an extension of hearings so that more Canadians could be heard respecting their Constitution. We fought for and won improvements for the charter of rights, including protection of the rights of handicapped Canadians and now a recognition that rights come, not from a benevolent and all powerful government, but from God. We fought for and won an opportunity for Quebecers to express their feelings in the recent provincial election before Parliament concluded its hearings. We fought for and won a chance for Canada’s premiers to make their proposal on an amending formula before debate was closed off in Parliament. We fought for and won the right of Canada’s Supreme Court to judge the legality iand constitutionality of Ottawa’s proposals before it was too ate.

These were significant victories by anyone’s standards. They were significant not just for the Progressive Conservative party but for all Canadians. In each instance they were fought for with courage and determination by my leader and my colleagues. In each instance they were fiercely resisted by the government.

When the history of these events is written, it will record the fact that if this party had followed the course which is being chosen by the NDP, a course of silent complicity as Canadian traditions and practices have been shunted aside, then the government’s proposals would have long ago been sent to Britain and written into law in a form which would have been seriously deficient, dangerously divisive and possibly illegal.

But although we have won significant victories for Canadians, the resolution and the methods being used by the government to bring it into law are still seriously flawed. When the Prime Minister stated on March 23 that our objections related exclusively to the form of the changes proposed by the government and not to the substance, his claim was false, as anyone who has followed this debate since last fall will know.

I want to turn for a few minutes to the remarks which were made here by the Minister of Justice today, because, sadly, what we are seeing in what will be one of the final interventions by the Minister of Justice in this debate is a tone of bitterness, a tone of sarcasm, and a tone of contempt for those who oppose what the government is attempting to do to Canadians. l think that that is not the tone on which we should be going about trying to change our Constitution in Canada. I do not think that the comments he made—in which, in many instances, he misrepresented the proposals being made by our party and the effect they would have upon the constitutional activities of this country—should be allowed to stand unchallenged.

First of all, the Minister of Justice took credit for the fact that the government was finally recognizing that there should be reference to the fact in our Constitution that we recognize the divinity of God. Yet if one reads the amendment which is proposed by the government, which is very simple and straightforward, one finds that it adds the following, immediately after the heading “Canadian Charter of Rights and Freedoms” on page 3: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.” There could be no more sterile or arid description of what we believe is a very fundamental principle. That is why, when we moved in our amendment that the principle of the sovereignty of God be recognized, we did so by borrowing wording which came from the Diefenbaker Bill of Rights which reads as follows:

—affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person, and the position ofthe family in a society of free men and free institutions;—

Affirming also that men and institutions remain free only where freedom is founded upon respect for moral and spiritual values and the rule of law.

That is how Mr. Diefenbaker, when he proposed his Bill of Rights, dealt with this issue. This is how we feel the charter of rights should read in its preamble. Yet what the government has chosen to do is to grudgingly make the most insipid and arid description of a very fundamental principle that it could possibly find.

lf, indeed, the government agreed with the representations which were made by literally thousands of Canadians from coast to coast, if it believed that it was wise to include reference to God in the charter of rights, then why did the government’s leading constitutional spokesman, in the constitutional committee, Senator Austin, make this statement? It is reported in the minutes of the constitutional committee of February 9, 1981. He was talking about the amendment to the Constitution which we had proposed which would recognize the supremacy of God. He said this:

What I said at that tlrne in the Committee, and l want to repeat it here, is that the main difficulty with the Conservative amendment was that it was tacked on to the resolution in the wrong place. lt belongs in stage two as a preamble, and it belongs as u preamble to the entire constitutional process. and not to a portion of it. My own view is that the Conservatives are trying to downgrade God—

Listen to this, Mr. Speaker: —and we will put him in his right place at the right time.

Only among Liberals, with their Liberal arrogance, would one find the belief that the Liberals will put God in his right place at the proper time.

Some hon. Members: Shame!

Mr. Beatty: Senator Austin, when he spoke, said reference to the supremacy of God should come as part of the preamble to the whole of the Constitution; and yet now the Minister of Justice is proposing not that, but that this arid and insipid reference be made at the beginning of the preamble to the charter of rights.

There are many other comments which the Minister of Justice made with which I want to deal very briefly. First, he has recognized that his amending formula was flawed and that improvements should be made because we in committee had pointed out that what the government had done was to grade Canadians on the basis of their province of residence. Then, based on which province one lived in as a Canadian there would be first-class Canadians, second-class Canadians and third-class Canadians.

What the government has done with the amendment it put before the House today is to state that instead of first-class, second-class and third-class Canadians, we will have only first-class and second-class Canadians. It says that the third class of citizens would be dropped, making those Canadians now into second-class citizens, and the government believes that this should win the support of the official opposition and the support of the millions of Canadians who will be put in this secondary position. We reject that.

Some hon. Members: Hear, hear!

Mr. Beatty: We believe that the concession which was made by the government was no concession at all.

Some hon. Members: Hear, hear!

Mr. Beatty: The minister went on in his sarcastic way at quite some length to suggest that one would have a situation where we could have no amending formula, that we would have patriated the constitution, and thereuwould be no amending formula because it would be necessary to have six or seven provinces agree to it before we would have an amending formula. The only matter he overlooked is that there was a meeting here in Ottawa last week at which eight of the provinces, representing 60 per cent of the population of Canada, agreed upon an amending formula.

Some hon. Members: Hear, hear!

Mr. Beatty: So, there is agreement. It is a bogeyman he is trying to raise to scare Canadians, to try to discredit the proposals we have made and the amendment before the House today.

An hon. Member: Dishonest!

Mr. Beatty: But ministers of the Crown and all members in this debate have a responsibility to deal fairly and factually with Canadians and not to present proposals—

Some hon. Members: Hear, hear!

Mr. Beatty: What we heard last week, when the Minister of Justice called a press conference to denounce the proposals made by the premiers, even before the ink was dry on the premiers’ signatures, was that what the Minister of Justice and the Prime Minister want is not agreement on an amending formula, because agreement, we know, can be reached, but what they want is agreement on their amending formula. They want not to have co-operation, not to have consensus, not to have compromise; but rather, they want to put a unilateral demand before the provinces that either the provinces accept their amending formula, or else they will impose their prized amending formula using this colonial device of going to Great Britain to have changes made there which should be made here in Canada.

Some hon. Members: Hear, hear!

Mr. Beatty: When we started this whole exercise, the Prime Minister and the Minister of Justice said it was humiliating for Canadians to have to go back to Great Britain to have substantive amendments made to our Constitution, and this was the reason why it was essential to act today, that we wanted—as the Prime Minister and the Minister of Justice have said so often—to remove this last vestige of colonialism, that it was disgraceful, distasteful, and humiliating for Canadians to have to go to Great Britain to have changes made. Indeed, what we saw was a play acted out by the Leader of the NDP (Mr. Broadbent) and by the Secretary of State for External Affairs (Mr. MacGuigan) in which they tried to construct the belief in the minds of Canadians that there had been deliberate interference by the British High Commissioner in an attempt to meddle in Canadian affairs, and that here we had signs of British imperialism. So this was to be ended. We were to bring the Constitution home, because no longer should Canada, as a sovereign nation, have the power to amend our Constitution resident in Westminster. However, when the Gallup Polls showed that 64 per cent of the Canadian people just wanted to follow a procedure according to which would bring the Constitution home and amend it here, and when our party proposed that and when the premiers proposed that, what did the government say? lt said, “Well, we aren’t sure that the Constitution would be amended in the way that we want, if we were to do that”. If all that we were to do were to ask Britain to patriatc our Constitution with an agreed upon amending formula, as the Canadian people said they wanted, then it said, “We will never have a charter of rights”, and so the story changed.

Now what we have is that the government will go to Britain, it will use these colonial ties one last time to make the amendments that it wants over the opposition of 64 per cent of the Canadian people and eight of the ten provinces. The government will write it into law, and then will sever this tie which was so humiliating before. Before, the Prime Minister that proposed that we act now. He said it was essential that we sever this tie immediately because it was humiliating and underminded our sense of nationhood. Yet when it served his purpose to get his changes made, and when he said he would not want to do it in Canada because he did not think he could do it by seeking consent or agreement through his amending formula, then he had no hesitation at all in using those mechanisms for his purposes.

Some hon. Members: Devious.

Mr. Beatty: Who can credit the government with dealing with the Canadian people honestly when we are dealing with thlrt sort of argument?

I want to come for a minute to the amending formula that the government is proposing. The government’s whole argument relating to the charter of rights is very informative when we look at the government’s amending formula.

The Minister of Justice and the Prime Minister have said the reason they have to go to Great Britain to have those amendents made in Great Britain when they should be made here in Canada is that if we simply patriate with an agreed upon amending formula, with their amending formula—even if we cannot agree upon one, even if they impose their amending proposal—it will be impossible ever to have a charter of rights in Canada. Never, under the govermnent’s amending formula, would it be possible for Canadians to have a charter of rights which the Prime Minister and the Minister of Justice say are self-evidently desirable for Canadians, and are desired by Canadians from coast to coast. Indeed, when the Prime Mlnister spoke on March 23 he listed eminent authorities in support of his charter of rights. He listed my colleague, the hon. member for Provencher (Mr. Epp); he listed the Progressive Conservative Party; he listed the whole of the House of Commons; he listed 91 per cent of Canadians; he mentioned the late John G. Diefenbaker; the hon. member for Burnaby (Mr. Robinson); Tommy Douglas; Premier Davis; Premier Hatfield; Premier Lougheed; Premier Peekford; Claude Ryan and, not stopping there, he mentioned Pope John XXIII as being in favour of what he was proposing.

Notwithstanding the fact that two of the people he mentioned died before he made the proposal; that by and large the endorsements were given well before that and that they were not endorsing his constitutional proposals, and notwithstanding the fact that many of the people who were speaking were taking about the concept of an entrenched Charter of Rights and not what he is proposing, which is seriously flawed, he says there is this massive support. Who am l to deny what he says about this overwhelming support for a charter of right in Canada?

Why not do it here, Mr. Speaker? Why would his amending formula not be adequate to get something which he says has such massive, self-evident support?

What the Prime Minister is asking us to do is to write for all time, into our Constitution, an amending formula which he says could not be changed and for which he says there is massive support in Canada.

If anything should have given the Minister of Justice pause as he unleashed his tirade today and attacked our proposals for an amending formula, it should have been the fact that both he and the Prime Minister have said that their proposed amending formula would not be adequate for making the changes they want.

l want to deal as well with some of the sarcastic arguments made by the Minister of Justice with regard to property rights. He said that under the Conservative proposal, what we would have is a situation where four of the provinces would be able to veto the inclusion of property rights, for example, in the Constitution. Under his proposal, one province with a veto, such as Ontario or Quebec, could do that. They would not even need the position that has already taken the Prime Minister and himself where they put the Liberal party on record as opposing the inclusion of property rights in the Constitution at this time. Let us not have this sort of sophistry.

They raised the spectre, as did the hon. member for Broadview-Greenwod (Mr. Rae), of a checkerboard Canada, of rights that would vary from province to province.

The minister dimissed what my colleague, the hon. member for Provencher, said last night about the Quebec pension plan and the fact that we probably would not have had a Canada Pension Plan had it not been for the opting-out principle which the late prime minister Pearson had accepted. Does the Minister of Justice himself not participate in the Quebec pension plan and does he not feel that it is a good idea? He said that this is different because it is not a constitutionalized provision; that it does not deal with people’s rights but simply federal spending and that is O.K., but that when it comes to rights, there should not be differences from province to province.

l would say that if l were from Newfoundland and I believed in the dissentient school system, which has been constitutionally protected since Newfoundland entered confederation, l would be seriously worried about what the Prime Minister and the Minister of Justice, with the support of the hon. member for Broadview-Greenwood, would be doing about the dissentient school and the right to have schooling in the religion of choice. That is a constitutional right which is protected for one province and not for others. The principle being followed here by the Liberals and the NDP, is that when it comes to rights, unless everyone has exactly the same constitutionalized right, no one should have a constitutionalized right. lt should exist for no one. That is what their amending formula says.

The hon. member for Broadview-Greenwood obviously had not read our constitutional proposals when he unleashed his attack upon them, He spoke about a checkboard Canada as it related to rights. He did not realize that the amendment we put before the House today would not allow opting out on the charter of rights. We would not have that. Where there would be opting out is in other areas which, since the time of confederation, have been given exclusively to the provinces. The Liberals and the NDP referred to this as a checkerboard Canada; we refer to it as the Canadian federal system. We believe that it is a system that serves Canadians.

Some hon. Members: Hear, hear!

Mr. Beatty: The hon. member for Broadview-Greenwood spoke at considerable length and with considerable eloquence about the value of diversity in our society; about the fact that Canadians live differently; that they have different beliefs and styles of living; about the need to protect that; about the belief that a charter of rights would help to protect the right of people to be different. I believe that and I support the concept of a charter of rights, although I believe that this charter is seriously flawed. He went on to attack the ability of some provinces, under our federal system and under our constitutional amending proposal, to opt out of specific amendments to our Constitution. If it is appropriate for an individual to have the right to lead a life that is different from that of his neighbour, why is it improper for people in one province or one region to choose standards which are different from standards in other areas of the country?

What we are talking about here is not a checkerboard Canada. We are talking about an attack upon the very basis of federalism which has served this country so well for over I00 years.

Some hon. Members: Hear, hear!

Mr. Beatty: The hon. member for Broadview-Greenwood was right when he said that Canada is not a homogenized society. I pray that it will never become a homogenized society. I come from rural Ontario where diversity is a source of pride and where various groups have maintained their ethnic and traditional cultures. This has helped enrich the whole of our society. They have maintained their right to freedom of religion, and I hope that we will never find ourselves in a situation where those rights are taken away.

Why are we proposing, when it comes to the very essence of federalism, when the rights of people to maintain historical legislation, historical traditions, historical ways of life, that these be suddenly swept away by Ottawa and this juggernaut? I say that this is wrong and it is something which this party cannot support.

The Minister of Justice dismissed with contempt what we have proposed in this amendment, that capital punishment and abortion should be dealt with by Parliament, and not under the Constitution. We are concerned that once the Constitution is made law—and the Minister of Justice does not dispute this— inevitably cases would come before the courts based on the charter of rights which would make arguments related to capital punishment and abortion and, as a result of the constitutional amendments we are making today, we could very well find that the power to make decisions on these questions would be taken away from Parliament and put into the hands of the courts and would be virtually impossible to change.

All that we are saying is that the principle which the Minister of Justice says he supports, namely that Parliament should make these decisions, should be explicitly recognized in the Constitution. He says that he has an opinion from the law officers of the Crown to the effect that no court would find that these provisions in any way deal with the issues related to capital punishment or abortion. But on Bill C-60, the Minister of justice of the day told the House of Commons and told the parliamentary Committee on the Constitution that he had an opinion from the law officers of the Crown that there was no question that the government had the power to do whatever is wanted with regard to the Senate. What happened when that went to the Supreme Court? The Supreme Court found that what the government was seeking to do was illegal and it struck it down unanimously. If the advice of the law officers of the Crown was fallible then, why is it not also fallible today? Why is the minister contemptuously dismissing with the back of his hand, the proposal to ensure that Parliament should make these decisions and not the courts?

The Minister of Justice played an interesting game. He said that initially we were arguing that this was essentially a legal question; that our concern with what the Prime Minister is doing is based on a question of legality; that what was essential was that a court should be heard from; that this was the only impediment to our support for the package, and that now that it is going to the Supreme Court against the wishes of this government, we are shifting ground and saying that we have concern about the propriety or political nature of the proposal. From the outset, anyone who has followed the conduct of this debate since last December knows that we had concerns both about the legality and about the content of this particular resolution. Those concerns remain undiminished today.

Some hon. Members: Hear, hear!

Mr. Beatty: Let us have vigorous debate in this House of Commons about these constitutional proposals, but let us not misrepresent what people who disagree with us are proposing. When, on March 23, the Prime Minister spoke in the House of Commons, he repeated what has become a familiar Liberal refrain, that this debate is no different from the flag debate and that in time Canadians will forget what the government has done to them. Perhaps they will. Perhaps Canadians will forget that $6 million of their tax money was used for advocacy advertising campaigns to promote one man’s policies. Perhaps they will forget that the Prime Minister had no mandate for his proposals. Perhaps they will forget that in the 1979 election he ran on a platform of constitutional change, and he was defeated. But where in the Liberal literature from the 1980 campaign do we find reference to major constitutional change as the central element in the package? Where does the Prime Minister have an endorsement from the Canadian people?

The Liberals say if Canadians do not like what is being done to them now, that in the next election they can elect a government which will move the Constitution back to Britain and undo everything they have done. It is somewhat analogous to what could have happened to the Minister of Justice when he was in hospital earlier this year. What if his doctor had come to him and said “while you are here, I will take out your liver”, to which he would have replied “l am not in favour of that”. What if the doctor had argued and said to the Minister of Justice, “lt does not matter what you think. If you do not like it after I take it out, you can get some other doctor to put it back in”. That is wrong, Mr. Speaker. But perhaps, as the Prime Minister says, Canadians will forget that.

Perhaps Canadians will forget that the government acted unilaterally over the express opposition of 65 per cent of the Canadian people. Perhaps they will forget that the government tried to bypass the courts by ensuring that by the time the Supreme Court had a chance to rule on the legality of the proposals, they would already be law. Perhaps they will forget the many improvements to the charter that were rejected by the Liberal-NDP alliance, including the right to hold and enjoy property. Perhaps Canadians will forget the divide and conquer tactics so clearly spelled out in the Kirby memorandum and so clearly demonstrated here today in the speech given by the Minister of Justice. Perhaps they will even forget that the Prime Minister, who began this exercise by complaining of the humiliation of having to go to a foreign country to amend our Constitution, chose to do precisely that instead of bringing our Constitution home and amending it here.

Even if time obscures those bitter memories, permanent change will have taken place in our country that for all time will create first class and second class Canadians. People living in Ontario and Quebec will have a permanent veto on any future change to our Constitution. They will have that veto no matter whether the population in either province grows, remains static or shrinks, while Canadians from other provinces will not have that veto.

Every single time that this discriminatory amending formula is used to remind some Canadians of their second-class status, bitter memories will be recalled and the good will that provides Canada’s constitutional glue will be weakened.

As I conclude my remarks, I say to you, Mr. Speaker, that l think this country will stay together. I pray that it will. The glue which has held this country together and has managed to overcome centrifugal forces, which have threatened to tear it apart for over a century now, has been good will, common sense and self restraint. Yet what we find in the government’s actions is a denial of good will, actions in the face of common sense, and an attack upon the very federal system which has served Canadians so well.

Before we vote on these amendments, the government has the time to change its policies, and l ask in the name of Canada that the government take advantage of that opportunity.

Some hon. Members: Hear, hear!

[Translation] Mr. Henri Tousignant (Témiscamingue): Mr. Speaker, I do not intend today to give an historical account of Canadian federalism. This has been done many times already. Even after reading many books and consulting numerous experts, l have concluded that everyone has his own interpretation of the facts. We must therefore consider the record of Canadian federalism and the initiative we are taking today in a much more general perspective. In my opinion, this record is certainly not as dismal as some would have us believe. Of course, it is difficult for us, 113 years later, to know what the Fathers of Confederation truly intended and if their original purpose has finally been achieved. Indeed, Mr. Speaker, the federalism developed by the Fathers of Confederation has served us well, and we have proof of this every day. How could we not recognize, for instance, that a small population of 23 million people scattered on such a vast territory has been able to achieve such a standard of living and provide infrastructures across the country, such as roads, telephone services, telecommunications, and so on. How is it that in spite of this geographic vastness which should give rise to numerous natural disparities among the various regions, we have been able to make these regions relatively and equally prosperous. The federalism of the Fathers of Confederation has served us well in spite of the limited means available to them at the time, such as the lack of information and communication services.

The constitutional discussions of 113 years ago were held with much less ceremony than today. No one can tell me that every Canadian citizen had detailed knowledge of every section of the constitution. Early in this century, very few people needed a public relations officer to tell them what they wanted. The Canadians of that time certainly had fewer opportunities to express themselves than today. Now, everyone wants to decide, everyone wants to intervene, many probably only for their own personal glorification. While we have managed quite well with what, it must be admitted, is a rather rudimentary framework compared with the one we have today, as concerns preparation, consultations, representations, legal notices, jurisprudence, and so on, I believe that the proposal now under consideration will be greatly refined, not to say a real masterpiece, compared with the one we were given ll3 years ago.

Of course, some people will tend to question this brief and rough analysis, to indict our forefathers of 1867 and convict them without further ado. I would reply that only the weak prefer to quibble about past events. Some will say: “I told you so. It was to be expected. They should have acted otherwise, and so on.” The formula used by the great architects who are building the future is obviously different and not as simplistic. However, we must face the facts. For some years, we have been hearing what I would call the glory boys of the cicada family tell us that the Canadian government needs to enhance its image in order to better seduce the Canadians and that it should therefore make immediately in-depth changes to the Constitution as, according to them, this is absolutely essential for the welfare of all Canadians. We must admit that for many years serious attempts have been made to find grounds for agreement to the satisfaction of the Canadian people. What were the causes of so many differences? They are quite simple, Mr. Speaker. First, we indulged in what I call acute idealism and thought the unanimity rule alone was essential. Ideally, discussions and negotiations in every area should lead to unanimous decisions. But, needless to say, in every day life things are quite different. Federal-provincial discussions are no exception.

We tried everything to involve the provinces in our process. But after first agreeing they turned round and tried to trade this patriation proposal for an unacceptable package deal that went beyond everything that was discussed last summer. I would even go so far as to say that the provinces were consulted and that they rally agreed to this measure on two occasions at least, in 1978 and during the Fulton-Favreau round of talks. Why do some of the provinces oppose this proposal, and why are they fighting it before the courts? In my view, this is beyond understanding.

They have a golden opportunity here to show their good faith, and it seems to me that instead of resorting to all sorts of chicanery before the courts, they would make a greater contribution to national unity by supporting the action we have initiated. It is a fact, Mr. Speaker, that 15 years ago the present Quebec premier was publicly supporting both patriation and an amending formula that was much less favourable to his province, at a point in time when talks were far less advanced than they are now. Today, he would have us believe that patriation is horrendous. I do not understand this, or rather, Mr. Speaker, I cannot stand that kind of political opportunism. Mr. Levesque and his group want to wreck the building, as is well known, and in the same breath they hurry to support the walls of the building lest they crumble. How sincere they are! The premiers of the dissenting provinces are beginning to understand the subterfuge as they deal with the elusive Quebec premier. Why on earth trade off a measure that would benefit everyone against any sort of advantage? Do we have to remain the laughing stock of the whole world by being the only independent nation unable to amend ourselves our own Constitution? How odd, especially since this has been going on for 54 years! Let us therefore have the courage of our convictions; let us put aside our self-interests; let us show consistency and integrity. Commenting on the failures of the Adams statesmen in American political life, John Kennedy wrote, and I quote:

[English] Yet their failures, if they can be called failures, were the result of their own undeviaiing devotion to what they considered to be the public interest and the result of the inability of their contemporaries to match the high standards of honour and rectitude that they brought to public life.

If we adopt this measure, Mr. Speaker, I think history shall judge our action.

[Translation] In addition, the bill now under consideration includes an amending formula which can give us a gleam of hope that some substantial amendments will be made to the British North America Act of 1867. On the one hand, we are allowing ourselves a two-year delay to continue to operate under the consensus rule which has always been enforced. On the other hand, we give ourselves an amending formula and a means, the referendum, to break a deadlock and make changes without being unconditionally at the mercy of a few provinces or of a high-handed majority.

The delay granted before the implementation of the new formula will enable the various Canadian governments to reassess their constitutional positions and probably to agree on several points before that delay expires. The Leader of the Official Opposition (Mr. Clark) disagrees with our procedure or would have us believe that he disagrees. However, I must point out to him that he is mistaken by maintaining the position he took at the outset of this debate, because he is playing into the hands, ifsuch is not his purpose, ofthe very ones who cause the division and the racial tension which have developed in the country, yet, he knows full well deep down inside that we are acting in the general interest. The dissenting premiers know it as well. However, why are they challenging us?

An hon. Member: For the sake of challenging!

Mr. Tousignant: For the sake of challenging, of course, as my hon. colleague said. The reason is quite simple. All those fine people are trying to protect short-term, immediate political interests. Is there a better electoral platform, Mr. Speaker, than to brandish all sorts of bugbears, claiming jurisdictions, natural resources and provincial autonomy, all of which could be seized by the big bad federal government? Such facile and I would even say demagogic arguments are certain to catch the people’s imagination. However, reality is quite different and it is simple. Why are these people trying to make it complicated? For the sake of immediate political interests, Mr. Speaker, out of sheer selfishness.

If people had the intellectual and moral honesty to speak the truth, 99 per cent of the population of Canada would agree with our approach. But no, they would rather entertain confusion. It is politically profitable for the Official Opposition to spread all sorts of falsehoods, gossip and even hatred, particularly in the West. Some members opposite, Mr. Speaker, even carry demagogy to the point of associating the Prime Minister of Canada (Mr. Trudeau) with the metric system, mainly in the West. Can you imagine anything more ridiculous? One really has to be short of arguments to go that far, Mr. Speaker.

The half-leader of the official opposition—l am told he is two-thirds of it—understands full well and endorses the good old philosophy according to which in politics it is more profitable to support a respectable falsehood than an untested truth. We do not believe in such a thing. We know full well that as responsible administrators, we sometimes have to take decisions that could give rise to dissent or confrontation.

This happens quite often when municipal authorities must take an important and unpopular decision, for instance, when a city council decides to build water and scwer systems. Of course, there are arguments and discussions and a referendum is held, and then the matter is settled, and as far as I know, life goes on as before. The role of representatives, of public authorities, is precisely to express and to carry out within each period what is considered to be due justice in the collective consciousness.

Indeed, Mr. Speaker, we know full well that if all these people were telling the truth, 99 per cent of the population would fully agree. Of course, one could discuss ad infinitum about furnishings and decoration, about the colour of the walls or the best place for the sink and the toilet. One could also seek the advice of all the tenants who signed the lease and who are eagerly waiting to move into their new apartments. But in so doing, construction would be delayed indefinitely and one could never be sure to please future tenants moving in two, three, four or five years hence. So are we going to avoid or abstain from building for unfounded reasons? It is also ironical, and I would even say astonishing, Mr. Speaker, to find that the same persons who are dead set against our proposal, both in principle and in the name of the Canadian electorate, are showing such a lack of interest in their daily behaviour. Could it be that the store sign or the advertising do not truly reflect the contents?

An hon. Member: They do not know themselves!

Mr. Tousignant: Right, they do not know themselves. We have had to listen to a few inflammatory and racist speeches-

An hon. Member: Mostly that.

Mr. Tousignant: From some hopeless and dichard radicals with hoarse and sepulchral voices so befitting their party. As lhfontaine said, referring to the plague-stricken animals “of the tiger, of the bear nor of the other powers the least forgivable offenses”.

The mini-leader has himself delivered a lifeless and unconvincing mini-speech under the dull eyes of a few bystanders forced to listen to him because of their party convention that was to be held during that weekend right here in the nation’s capital. But where have they gone all those who yelled. “Death to the donkey.” Yes, Mr. Speaker, as Jean de Lafontaine my favorite poet in college said, these people remind me of the plague-stricken animals. You will find here and there a somewhat learned wolf who will demonstrate thanks to his oratory talents that this damned animal, this bald and mangy animal from which all their evil stems should be devoured. Our sin, the Liberal sin is that we want Canadians to be proud of being Canadians. That is our cardinal sin and that is what we are being blamed for now. This sin is actually considered by the plague-stricken animals as an abominable crime.

Mr. Speaker, let us be objective, let us look more closely at the seriousness of our opponents. At the beginning of this debate the Progressive Conservatives told us they needed more time to debate this important issue and that consequently they would have several amendments to present. Yet up to this day, up to the last agreement between the parties, only one amendment had been submitted—

An hon. Member: And not receivable—

Mr. Tousignant: Not receivable as my colleague says and we have heard well over 80 speeches, yes, 80 speeches on only one amendment. Just imagine! At this rate, Mr. Speaker we will long be gone, we will all have retired by then and yet we will not have started the debate on the main issue. The worst part of it all is the fact that the mover of this amendment, the main spokesman for the Progressive Conservative party on constitutional matters, the member for Provencher (Mr. Epp) from Manitoba has decided that during these important discussions, he would travel to Africa and South America. Just imagine! How best to show the importance of this debate in the eyes of these people! l let Canadians be the judges of that, Mr. Speaker, and decide who is sincere in this House and who is faking—

An hon. Member: —and who is serious.

Mr. Tousignant: —and who is serious.

How can one take seriously those who, in front of TV cameras, shed crocodile tears when they do not even believe in what they advocate? We have been marking time long enough on this matter, Mr. Speaker. Everyone will agree that it is always with some apprehension that one sees the dentist’s needle or knife, but what a relief when the bad tooth or the pain is gone!

It is the same with the constitutional issue. Let us act right now. Let us put an end to those endless discussions which are consuming us all. Let us give ourselves the tool, the key, the wrench to tune up our engine in order to avoid failures and needless delays. Often a new piece of equipment will cause much disruption and negative reactions among the people affected in a plant, for example. But after a while, those same people will swear by that new equipment. Likewise, our newly patriated constitution will enable us, with the agreement of the provinces and the people, to bring about the changes we deem necessary and advisable and to give ourselves a charter of rights designed to protect everything our fellow citizens hold as most sacred so as to eliminate to the greatest extent possible any possibility of injustice just as were eliminated in the past, through good will, smallpox and the plague. Injustice is debasing just as racism is offensive to human dignity.

An hon. Member: True!

Mr. Tousignant: No economic situation whatsoever, as for the individual the want of a job, his age, the early loss of a loved one or a personal handicap, no event whatsoever can justify that such a thriving nation like Canada will not put all its citizens on an equaal footing and act accordingly. It would be unforgivable, Mr. Speaker, not to settle down to this task or, should I say, this noble cause.

An hon. Member: The hon. members opposite do not believe that.

Mr. Tousignant: To recall the words used by the Right Hon. Prime Minister when he was quoting Péguy, those who pride themselves on having clean hands, Mr. Speaker, are those who have no hands.

An hon. Member: Hear, hear!

An hon. Member: How true!

Mr. Tousignant: As far as we are concerned, Mr. Speaker, at least nobody will be able to accuse us of having shirked our responsibilities. We do not hesitate to set our hands to the plough and that is exactly what right-thinking Canadians expect of us.

I am glad to see that the parties in the House have agreed to seek the opinion of the Supreme Court about the legality. Still I deplore the fact that we have to operate against tradition and contrary to our responsibilities. As legislators our role is to enact laws since that is why we exist, and that is precisely why people elect us; the role of the courts is to judge only after the laws have been adopted by Parliament. However, we had to make a few concessions to the Leader of the Opposition. We gracefully accept knowing as we do how clever he is at always flying in the face of common sense.

An hon. Member: His electors will make him grow old. Mr. Tousignant: In conclusion, as conscientiously and as honestly as I can, I want to pay homage—l think that the people across the aisle ought to listen carefully to these comments. Mr. Speaker, I want to commend several Progressive Conservative and NDP members who, from the outset of the debates, have demonstrated their objectivity and broadmindedness and who have tackled this issue as intelligent people would.

An hon. Member: There are not many, but there are some.

Mr. Tousignant: There are several.

They are at peace with their conscience and they never did yield to partisan temptation and to chauvinism.

For instance, I have in mind the hon. member for Rosedale (Mr. Crombie), to name only one, but I could commend several others. They made sound and level-headed interventions and gave us their unrelenting support since the beginning. I want Canadians to know that we have had the support of several Progressive Conservatives and of most NDP members since the debates began. That is not what they would have the members opposite believe, for there are many divisions within that party. From the outset, Mr. Speaker, we have had the support of several Progressive Conservative and NDP members, unrelenting, open and honest support forthis project, and their approach has been a precious and priceless contribution to the understanding and enlightenment of the Canada of today, for which we all entertain hopes, and of thc Canada of tomorrow for the generations to come. All the great works which remained unpublished are not worth much more than the paper on which they were written. If we are responsible men and women, let us at least have the courage to afford future generations the possibility of judging us.

Mr. Dubois: Mr. Speaker, as—

[English]

An hon. Member: What the hell goes on now?

The Acting Speaker (Mr. Ethier): The Chair would like to be informed at this time of one or twothings. Perhaps the Chair has been misled—not intentionally, I hope—but I thought there was an understanding when there was a switch a while ago from the hon. member for Témiscamingue (Mr. Tousignant) to the hon. member for Wellington-Dufferim Simcoe (Mr. Beatty). I was informed that there was an undertaking by the two major parties that the two following speakers would be Liberals. If I am incorrect, I would like to be corrected by hon. members. I was told there was an agreement to that effect. If not, I will alternate parties, as I am supposed to do.

Mr. Collenettez Mr. Speaker, I explained what happened earlier. There was a bit of a mix-up; it does not matter who was at fault, but we allowed the hon. member for Wellington Dufferin-Simcoe (Mr. Beatty) to speak even though, following our normal practice of rotation, it was the turn of the hon. member for Témiscamingue, a Liberal. Subsequent to that, I had a conversation with the hon. member for Burlington (Mr. Kempling), the Conservative whip, and I asked if it would be all right if, after the hon. member for Témiscamingue spoke, we could correct the order of rotation by having the hon. member for Lotbiniere (Mr. Dubois) speak followed by a Conservative member so that the normal 50-50 ratio would be followed.

That was the understanding I had, and that is what I indicated to Your Honour. That was my understanding; we discussed it.

The problem is not actually with respect to the ratio between Liberal and Conservatives. The problem arose yesterday in accommodating my friends in the New Democratic Party and the subsequent speech this afternoon by the hon. member for Broadview-Greenwood.

However, I must insist at this point in time, after having informed the Deputy Speaker yesterday that we will be following our normal ratio of speakers, that the hon. member for Lotbiniere must speak so that we preserve the normal left right balance. According to the conversation I had with the hon. member for Burlington, the hon. member for Lotbiniere will speak next, and when he finishes, a Conservative member will follow.

Mr. Kempling: That is right, Mr. Speaker. I confirm that that is the arrangement we have made so that we can return to the normal balance we had arranged previously.

[ Translation] Mr. Jean-Guy Dubois (Lotbiniére): Mr. Speaker, now that everything is settled, I would like to address myself to a situation that goes back to 1927. Many of my colleagues on this side of the House as well as members from across the aisle have expressed their views on the Constitution and have tried to explain why they should or should not support the resolution.

As member for Lotbiniere, Mr. Speaker, I too want to contribute to this debate, and ask and try to answer some questions with respect to the resolution which is now before Parliament. Fairly regularly for almost 54 years now, we have been discussing the Constitution, the changes that ought to be made, the amendments that ought to be included, the provisions that would so to speak eliminate disparities. It was high lime, I think, that the debate on this resolution should come to at conclusion and action be taken with regard to our Constitution in order to make it a true Canadian Constitution and make Canada a truly independent nation.

An hon. Member: Speak the truth!

Mr. Dubois: That is exactly what I intend to do. I think we should ask ourselves a few questions with respect to this constitutional issue. Why patriate? Why renew our Constitution? Third, how should we patriate?

Fourth, what types of rights and freedoms should be protected? Why indeed should we patriate our Constitution? As citizens of an independent nation which has come to maturity, many Canadians believe that the time has come to patriate our Constitution so we do not have to petition the Parliament of nnother country every time we wish to amend it. I think that having to depend on another country whenever we want to change the fundamental law of our land, which contains the provisions that concern all citizens and regulate our Canadian parliamentary system, smacks of colonialism without giving that word a derogatory meaning.

We all know that the British North America Act is the constitutional basis of the Canadian federation. The resolutions binding together New Brunswick, Nova Scotia, Ontario and Quebec were passed by the delegates of those four provinces without the involvement of any British representative. The Fathers of Confederation decided on their own to ask the British Parliament to pass an act approving these resolutions. But whatever fulfilled the needs of Canada in 1867, Mr. Speaker, no longer, I think, corresponds to present conditions.

It is worth mentioning, and I have done so on a number of occasions to my constituents, that the British North American Act lists at least six areas which do not fall under the jurisdiction of the Canadian Parliament. It is really a somewhat special situation. Here we have Canada, a sovereign state which claims to have reached maturity and achieved independence, with a number of constitutional areas which do not fall under the jurisdiction of the Canadian Parliament. There are the powers of the provinces’ legislative assemblies. Next, there are the rights and privileges granted to a provincial government or legislative assembly. Third, there is a minimum of rights guaranteed to both the French and English languages. Fourth, the right to separate schools. Fifth, the obligation for Parliament to sit at least once a year. And sixth, the obligation for Parliament not to sit for more than five years. To make changes in those areas, the government of Canada must obtain the assent of the British Parliament. The British Parliament, however, has never turned down any amendment wanted by Canada. In most cases, Canada has sought the advice of the provinces before asking the British Parliament to amend a provision of the British North America Act.

Now, what about the requirement to go through London to amend the Constitution? I think that this requirement weighs heavily on the pride of a great many Canadians, who feel that this is not only an embarrassment but an outright national shame. Let us examine the stages of our evolution as a country, which previous speakers have fully described in this Chamber and which I should like to summarize now, Mr. Speaker.

In 1931, Canada’s independence was confirmed by the Statute of Westminster; in 1949, the Supreme Court of Canada became the court of last instance and the Parliament of Canada acquired the power to amend the Canadian constitution except in the six areas which I enumerated earlier. In 1952, a Canadian citizen was appointed for the first time Governor General of Canada; in 1965, Canada chose its national flag. Some hon. members who were already in the House at the time can bear witness to the intensity of the debate and to the fact that many situations were presented as causes ofdivision in Canada.

The right hon. Prime Minister (Mr. Trudeau), in his speech on March 23, recalled some of the words spoken by hon. members, especially opposite, who at the time said most emphatically that the flag now standing on your right, Mr. Speaker, would divide the country. Quite the contrary: today one can say to the Canadian people, and the whole population of two other countries, that this magnificent flag has decidedly brought us great national pride and pride of independence compared to what we felt before. Finally, in 1980, the Parliament of Canada adopted the national anthem. I hope and trust that in the near future we shall pass an act making July 1 Canada Day. So, patriation of the Constitution, that is, the fact of bringing it home, becomes the last step on the road to full independence. That is why, Mr. Speaker, this situation is very important.

I feel, therefore, that those few remarks can answer the question of why we should patriate our constitution. Now, to the next question: Why renew our Constitution? it is quite obvious that the situation in 1867 was entirely different from what it is today. The constitution of 1867 allowed the Canadian federation to flourish in peace and freedom; it promoted the growth of the population and the economy as well as social and cultural development in all parts of the country; but our needs have changed, Mr. Speaker, It no longer meets our aspirations, our needs; it must be thought out anew, reshaped and reworded in keeping with today’s reality. It still contains, doubtless, several good points that could be rejuvenated and combined with new elements to form a truly Canadian document that meets current needs.

What are the faults and weaknesses in our Constitution? Our written constitution is, to a large extent, made up of British parliamentary laws. We have not yet managed to bring back those laws to Canada, nor to update them; they somehow still bear the stamp of a colonial past. A large part of our Constitution is scattered throughout a multiplicity of acts, several of which are quite unknown to the Canadian people. Those are two weaknesses in our Constitution. The distribution of powers between the federal Parliament and the provincial legislative assemblies, as written in the British North American Act of 1867, is neither as specific nor as functional as we might wish it to be. There is no bill of fundamental civic rights and freedoms in the Constitution, Mr. Speaker. Finally, the language rights are not sufficiently guaranteed and the amending formula is not properly defined in the constitution, and we must always appeal to the British Parliament to have some sections amended. All this is therefore evidence to all Canadians of the reasons why we must renew our Constitution and really break away from our colonial past.

Another important matter, in my opinion, is the repatriation procedure. What was the situation in the past to allow the repatriation of our Constitution? Was something done? Were there actions or meetings in order to achieve this? Mr. Speaker, for close to 54 years, Canadian political leaders have been looking for an amending formula without which repatriation would be nothing more that a symbolic gesture. What have past positions been, Mr. Speaker? Is the present situation totally unprecedented or, if there have been previous attempts to bring about the unanimity which is said to be essential today, was our Constitution successfully repatriated and made a Canadian law through the various formulae that have been discussed, with the unanimity rule that many consider to be still valid today? There was of course the 1964 Fulton-Favreau formula which required unanimous consent for changes to some sections of the constitution, such as those dealing with power distribution.

Many other amendments could have been made with the consent of two-thirds of the provinces representing 50 per cent of the Canadian population. The Fulton-Favreau formula did not succeed in bringing about the required unanimity. We then had the amendment formula of the Victoria Charter in 197l which required regional consent to amend the provisions of the Constitution, in other words, the assent of two Atlantic provinces, of Quebec and of Ontario, and of two Western provinces representing 50 per cent of the population of the region.

After the latest amendments introduced in the House, this formula is partly the one included in the resolution, Mr. Speaker, with some variations concerning the Atlantic provinces. The matters of 50 per cent of the population and the Western provinces are no longer mentioned. We also had what occurred in Toronto, in 1979, when the members of the standing committee of ministers on the Constitution asked that unanimous consent be required to change any amendment formula and any provision concerning provincial ownership of natural resources and provincial jurisdiction. For all other matters included in the Constitution, this formula required the consent of at least seven provincial legislative assemblies representing at least 85 per cent of the Canadian population. Finally, we had the Vancouver consensus which concerned a formula based on a proposal made by Alberta during the constitutional discussions of the summer of 1980. This proposal required the assent of Parliament and of the legislative assemblies of two-thirds of the provinces representing at least 50 per cent of the population. As for the questions related to the powers and the rights of a legislative assembly and the assets or properties of a province or its natural resources, the said province would have been able to opt out of an amendment which had not been approved by its own legislative assembly.

In spite of all this, Mr. Speaker, no agreement was reached. We have not been able to agree on patriation of our Constitution with an amending formula. There have been many exchanges and suggestions of giving certain powers to the provinces. For instance, there is the matter of family law. I am somewhat familiar with this issue as I was able to work in this field in my law practice. At first, we were told that there would be an agreement and that the provinces as a whole would agree to take over this field ofjurisdiction. But once again, some of the provinces said: “We are not ready, we are not sure this should not stay within federal jurisdiction.” Thus, this offer was made but no agreement was reached.

How could we, Mr. Speaker—

An hon. Member: They do not want to agree with anybody.

Mr. Dubois: How can we break the deadlock? Family law is but one example, and there could be others. How then can we break the deadlock? No previous suggestion has received unanimous consent from such a large number of organizations, trade unions, municipal councils or other bodies where decision-making is a collective procedure. Do we require unanimous consent to pass a regulation, a resolution or an act? In most trade unions, a 50 per cent majority is good enough. Some might say that such a comparison is unsound, since what is at stake in this resolution are our rights as citizens and the powers of the legislatures. But, generally, it can be said that nowhere is unanimous consent required. And some people still insist that unimous consent is mandatory. The government of Canada decided, therefore, to table before Parliament a proposed resolution for patriation with an amending formula.

The resolution says that all amendments to the BNA Act which can only be made in London at the present time, will have to be passed unanimously by Parliament and the legislative assemblies or governments of all the provinces, until an acceptable amending formula is decided along the lines of any of the three following manners. I want to point out, Mr. Speaker, to quite a number of Canadians and to my constituents that many people have been saying: “Good, the House of Commons is going to vote on the patriation of the Constitution.” The text will be sent to London and then; a good many people thought that everything would be settled then, that there would be no discussions and no problem whatsoever thereafter.

Here is what we expect to do, Mr, Speaker. If the federal lind provincial governments reach a unanimous agreement on a formula within the next two years, that formula will be ndopted. To facilitate the reaching of such an agreement, a constitutional conference of prime ministers will be held each year until a formula is agreed upon and put into force. That is provided for in the resolution.

Should the provinces and the federal government fail to agree unanimously on a formula while seven or more provinces representing at least 80 per cent of the Canadian population originally, the resolution asked for eight provinces, but the minister of Justice (Mr. Chrétien) proposed an amendment on that subject in January—agree, within thc two years following the patriation of the constitution, on an amending formula that would meet the demands expressed in the resolution, that formula as well as another one resembling that of Victoria would be proposed to the Canadians who would have to elect one through a referendum. Some say that powers are taken away from or given to the federal government, but l think powers are given to the people of Canada when a referendum is held on a matter which would pit the provincial governments against the federal government. However, the federal government could then propose its own formula instead of a modified version of the Victoria formula. Finally, and that would be the third stage, should the provincial governments not have any alternative to present at that time, a formula resembling that of Victoria would automatically be put into force two years after the patriation of the Constitution.

Generally speaking, this formula would require that all amendments to the Constitution be approved by Parliament or provincial legislatures or, through a national referendum, by a majority of voters representing a majority of the provinces, that includes every province that at any time had a population of at least 25 per cent of the population of Canada, two or more provinces of the Atlantic provinces and two or more of the western provinces. That is the way, Mr. Speaker, the Canadian government has decided to break the stalemate. As I said earlier, Mr. Speaker, there will be three choices open following patriation: Consultation and discussions will take place for two years and if an agreement is possible, the amending formula will be accepted as such. Otherwise, there will be a referendum and eventually the implementation of the Victoria formula. As I said earlier, that is the way the Canadian government thought it could break the stalemate.

Now, with this Constitution and its patriation, what are the classes of rights and liberties that ought to be guaranteed? As mentioned in the resolution I think Mr. Speaker that some rights and freedoms must be protected by the federal and provincial governments. To name but a few: fundamental freedoms, democratic rights, mobility rights, minority language educational rights, judicial guarantee, rights to non-discrimination and another element that the Canadian government suggests is very important and I agree with that, is the right to use official languages, thus giving a status to French and English as well as equal rights and privileges as to their use in parliamentary institutions and within the Canadian government; making sure that the Official Languages Act is institutionalized, that it is enshrined in the Constitution, to me is very important. Some have said in certain cases that we should not have a charter of rights and only patriate the Constitution without an amending formula or even a charter of rights. As the Right Hon. Prime Minister pointed out on March 23 in his speech to the House, opinion polls have been conducted and they show the following results: On August 6, 78 per cent of the respondents stated they wanted Canada to have its own Constitution written and adopted by the Canadian people.

To this other question: “Should the Constitution protect fundamental human rights?”, 9l per cent answered yes. Asked whether they wanted the Constitution to guarantee minority language rights, 81 per cent answered “yes”. As far as the charter of rights is concerned and this is very important, Mr. Speaker, I want to remind you that at the special constitutional committee hearings, out of 75 witness groups, 54 supported the entrenching of a charter of rights in the Constitution. Mr. Speaker, these figures speak for themselves and if they are not eloquent, I do not know what is. I do not know where one can find as high a percentage of people who support the entrenching of a charter of rights. Mr. Speaker, those are the few questions about the Constitution which I wanted to answer. Those are the ones I wanted to elaborate on.

As far as the text itself is concerned, obviously there were some clauses, some points which have been emphasized strongly. Let us go down the resolution clause by clause or let us consider the whole package of clauses before the House. For example, from clause 1 to 16, the question of fundamental rights, the freedoms of conscience, of faith, of thought, of press and other information media, the freedom to hold peaceful meetings are dcalt with. But, Mr. Speaker, who, in this House, could be against such rights? Can one be against freedom of association? It is provided for in the proposed resolution. Can one be against democratic rights as provided in clause 3? Mr. Speaker, can one be against mobility rights in Canada?

Mr. Speaker, can one be against those legal rights under which everyone has the right to life, liberty and security of the person? Can one be against those rights, Mr. Speaker? But those rights are granted in the proposed resolution, Mr. Speaker! Can one be against those rights and say: Everyone has the right not to be arbitrarily detained or imprisoned? Can one be against those rights, Mr. Speaker, and say: Everyone has the right on arrest or detention to be informed promptly of the reasons therefor?

As a lawyer, as a representative of my riding, when I see that very important provision for Canadians, I wonder who could be against those rights that will be entrenched in the Constitution of Canada. To retain and instruct counsel without delay and to be informed of that right! Can one oppose that? Such guarantees are to be found in the proposed resolution, Mr. Speaker. Has anyone the right to object to the provision under which everyone has the right not to be subjected to any cruel and unusual treatment or punishment? Mr. Speaker, those provisions are to be found in the proposed resolution. Now, Mr. Speaker, I would like to deal with clause 31, the clause relating to equalization which says: Commitment to promote equal opportunities.

Mr. Munro: It has existed for 20 years!

Mr. Dubois: Very good if it has existed for 20 years, because the poorer provinces made the most of it. British Columbia or Nova Scotia might have benefited from it. What is the purpose of those things which can be institutionalized, enshrined in our Constitution? It it precisely to promote equal opportunities for all Canadians in their search for well-being. That is provided for in the resolution, Mr. Speaker.

I am coming to these sections to comment on the resolution in general. There might be flaws in our resolution. But if we look at it in general, at all the rights it guarantees, we can see that for instance section 31 provides that the Parliament and the provincial legislatures will be able to promote equality for all Canadians, to stimulate economic development, to reduce the inequality of opportunities and to provide an appropriate standard of living and essential services for all Canadians; it is all provided for in the resolution. Considering this section and sections 32 and 41 I mentioned a moment ago about constitutional conferences on an amending formula, I think that is. generally speaking, a package that I can accept and support.

In concluding, Mr. Speaker, I would like to point out that according to many people, we should have kept on debating the constitution. Now, there is a political situation and also a judicial situation. Courts have already judged two against one on the legality of the action. It was said, of course, that these judgments were also a kind of a political action. The Supreme Court will hear the case on April 28. Many people might have said: “Well, now Manitoba has judged the government right.” And it was said about Manitoba: but it ended three against two, so it might not be that clear! Mr. Speaker, according to the little experience I acquired in eight years of practice, when a case is submitted to a court of fivcjudges, a judgment rendered by three against two is still a judgment. Mr. Speaker, considering the whole of this resolution, I think it was time to do something about our Constitution and try to bring it home. Considering the whole resolution as it is, I for one say that we should support it and do what has to be done to make our country sovereign and independent.

[English] Hon. Michael Wilson (Etobicoke Centre): The building of a Constitution should contribute to the building of a nation. The creation of a Constitution can and should develop the respect and pride in the whole of one country, something so necessary to a federal state. The principles of unity and loyalty which should naturally flow from a new Constitution are sadly lacking in this national debate.

We are, instead, being forced to fight a race against time to meet the Prime Minister’s (Mr. Trudeau) deadline against the will of over 60 per cent of the Canadian population and eight of Canada’s premiers.

We would be under an idyllic illusion if we tried to arrive at a unanimous point of view on all parts of our Constitution. We are a diverse nation in a fast and changing world; difference of opinion is our right and our privilege. That is the reason we need a flexible amending formula.

But we should not hold one level of government at a higher level in this federal state if we wish to achieve a sufficient degree of consensus that will give a new Constitution the degree of support it must have among the partners in our Confederation. How can we expect Canadians to display loyalty for their country when they see one level of government imposing its will over the others? Canada is a federal state, not a unitary state. Alterations to the Constitution affecting basic relationships between the national and provincial governments will never be acceptable on a unilateral basis in a federal state. lt is illogical. lt ignores the reality of Canada. It is unacceptable.

A Constitution must bind people together, give them a common cause and provide a focal point for the sense of devotion to their country. This “imposed” Constitution will not provide that. It will not move this country to a greater sense of unity. lt will commence its existence mired in controversy. Future progress toward agreement on matters of fundamental importance such as division of powers and new federal institutions will be delayed and possibly even thwarted by this stormy birth.

At a time when Canada needs a great store of good will on which to build our future, this Constitution will cause ill-feelings towards the federation of Canada.

Felix Frankfurter very wisely observed that “In a democratic society like the United States, change must come through an aroused popular conscience that sears the conscience of the people’s representatives.” Where are the consciences of the people’s representatives today, particularly those on the other side of this House? This government is certainly not representative of all of Canada when it talks about the Constitution. It is moving far too hastily to unilaterally impose a law on this country, a law which should be the very basis and foundation of the laws in the country. It is a law which should awaken the consciences of Canadians to the greatness of our country, to the expanse of its potential. It must not be a law which Canadians must pass “holding their noses”, in the hope that over time we will come to respect it. That respect must derive immediately from the law itself and the means of passage. It must not be seen as a symbol of dominance of one level of government over another. It must not be seen as the dominance of a distant government over the regions of the country. It must be passed with enthusiasm as a first step to a great future.

We have the choice today to make the constitutional proposals workable within our present federation. We can proceed with patriation. we can proceed with passing an amending formula which is acceptable to all of the provinces, and in due course we may proceed to a truly Canadian charter of rights respecting the many rights and freedoms which our country has today.

We have the opportunity today, because of the arduous work of many parliamentarians working on the constitutional committee and debating in the House of Commons, to allow the Prime Minister to take his responsibility to all Canadians seriously. I ask him to reflect upon the amendments presented by our party last night, which were introduced in this House of Commons to improve the constitutional proposals now before Parliament.

Our omnibus amendment to the constitutional proposals is based upon respect for our federation. Our amendment contains proposals to protect the federal nature of Canada and to strengthen thc charter of rights and freedoms. We urge support of our amendments based on reason and through consensus of our population.

Rather than the divisive amending formula currently put forward in the constitutional proposals, we define the consensus necessary to bring home and change the Constitution as being the partnership of the federal Parliament and the legislatures of two-thirds of the provinces representing 50 per cent of the population.

We propose an opting-out formula that is limited to protecting provincial powers that have existed since confederation.

ln our amendment yesterday, we proposed again the preamble of the Diefenbaker Bill of Rights affirming the supremacy of God, the worth of the individual, and the position of the family in a society of free individuals.

We propose and encourage all representatives to recognize the right of Canadians to enjoy property. This is a fundamental right and should be incorporated into a charter of rights. Recognizing the importance of property, the Diefenbaker Bill of Rights tried to ensure the right to own and use property and to ensure that no one could take property from individuals unless it was done legally with a fair hearing. The denial of this right has caused great concern among Canadians, including many of my constituents in Etobicoke Centre.

Why has it been omitted? It has been omitted because the NDP did not want it in as it might restrict the right of the government to expropriate property. Why has the government acquiesced? We have the clear example of why the government has acquiesced in a piece of legislation that is before us today, namely, Bill C-48, in which the government proposes to expropriate, without compensation, 25 per cent of the properties that have been developed by companies in northern Canada under the laws that existed at the time. It amounts to retroactive expropriation without compensation. That is why the government has not moved to put that proposal in the charter of rights as it stands today. l urge the inclusion of the right to own property in any charter of rights put before this House for a vote.

In our omnibus amendment and pursuant to the charter of rights, we proposed a section affirming that “notwithstanding anything in the charter, the rights and freedoms Set out are guaranteed equally to male and female persons.” This amendment should be readily accepted by all sides of the House. This injustice was corrected through an amendment in the other place by Conservative senators who clearly felt it urgent to correct this injustice prior to the constitutional proposals being rushed out of either chamber.

ln a new section which we propose, questions of conscience should not be bound by this imposed charter of rights and, therefore, nothing in it should affect the authority of Parliament to legislate in respect of abortion and capital punishment. These moral issues should be left to the legislators of the day to represent the views of their constituents and to reflect changing moral values in society.

We are asking this Parliament to add a new clause to Section 54 to recognize the monarch. The only means of amending the Queen’s position within the Constitution would be through a proclamation issued by the Governor General and authorized by resolutions of the Senate and the House of Commons.

To improve the constitutional proposals, my party has proposed amendments which more clearly reflect the views of Canadians. lt is obvious that we would have preferred the Prime Minister to continue to improve the proposal through ongoing discussions with the premiers or through a consideration, early in the process, of the amendments we put forward at the committee stage. This would have been more reflective of a confederation. lt is clear that the Prime Minister, in his headlong rush to pass the Constitution, is not interested in bargaining, either with us or with the provinces. This unreasonable position will result in the balkanization and greater regionalization of our country.

The Prime Minister has repeatedly based his case for unilateral action on the constitutional convention that the British Parliament must act upon a request from the Canadian Parliament to amend the BNA Act. This is an important convention. When we look at the whole question of unilateral action, we must consider the legal side and the political side. l am going to deal first with the legal aspect.

Apart from that first convention, there is another equally important convention. In those areas of constitutional change which affect federal-provincial relationships, the consent of the provinces and the federal government is required. The basis for this has been clearly established through the years.

Two authorities, at least, tie the two conventions together. The first is the 1964 white paper on the amendment of the Constitution, the first principle of which was that action by the British Parliament should be taken only upon formal request by the Parliament of Canada.

The fourth principle set out in the white paper which is the second convention that I wish to refer to is that the Canadian Parliament will not request an amendment affecting federal-provincial relationships without prior consultation and agreement with the provinces. Clearly, realization of the second convention must precede the first.

Prime Minister Louis St. Laurent, speaking in 1949 of the need for an amending procedure in order to make amendments affecting federal-provincial relations, said:

lt will be much preferable to secure agreement on the method to make the future changes, and when we do secure that agreement we shall have to make one more pilgrimage to the Parliament at Westminster—

lf and when we can get agreement with the provinces we will have one last amendment made by the Parliament at Westminster—

lt is true that there have been amendments made to the Constitution without the formal consent of the provinces. What is relevant is the nature of the amendments for which consent was not sought and whether or not consent was sought and given on amendments affecting federal-provincial relationships.

Let us examine the latter category. I have a couple of examples. In 1930, when the jurisdiction over resources was given to western provinces, the agreement of those provinces was obtained. A year later, in 1931, the statute of Westminster was specifically amended in Section 7 to protect the provinces from potential unilateral action by the federal Parliament. At that time, the federal solicitor general of the day said:

We admitted the fact, suggested by the Prcmier of Ontario, that our Constitution was really an agreement made between the provinces after full consultation and discussion, and we consented that the provinces should be consulted before any amendment or imperial statute should be passed.

At the same time, the then premier of Ontario said that the confederation of the provinces of Canada was brought about by the action of the provinces; that our Constitution is really the crystallization into law by an imperial statute of an agreement made by the provinces after full consultation and discussion, and that the province of Ontario held strongly to the view that the agreement should not be altered without the consent of the parties to it.

My final example occurs in 1940 when unemployment insurance was transferred from the provinces to the federal Parliament. Again, consultation and consent was unanimous.

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