Canada, House of Commons Debates, “Resolution Respecting Constitution Act”, 32nd Parl, 1st Sess (22 April 1981)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 9398-9420.
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RESOLUTlON 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 pro-
pose, 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 Conserva-
tive 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 Consti-
tution, and our intention has always been to write in the
Constitution that our society had to acknowledge the suprema-
cy 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 Canadi-
ans—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 for-
mula 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 com-
plaints, 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
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 Vic-
toria 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 discrimina-
tion between the prairie provinces and the Atlantic prov-
That was stated to me very well by the hon. member for
Provencher (Mr. Epp) in committee on November 12, when he
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 York-
ton-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
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 Atlan-
tic Canada and the two provinces in central Canada.
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 Demo-
cratic 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 Canadi-
an 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.
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 noth-
ing 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 amend-
ments 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 legisla-
tures representing 50 per cent of the population. However, it is
the Constitution Act, 1981 which contains the amending for-
mula. In other words, an amending formula would only come
into effect if between now and July, 1983 it is approved by
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 Consti-
tution would have been patriated without an amending for-
mula, 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 legisla-
tive 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 for-
mula, there will be no amending formula. Therefore, we would
be back to where we were in 1931, and no one is interested in
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 constitu-
tional 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 exam-
ple, 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.
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 lan-
guage 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.
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 mech-
anism? 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 repre-
sent 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
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 grand-
standing. 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 constitu-
tional 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 opposi-
tion 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 prov-
inces, 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
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 mem-
bers of the opposition that without opting out there would have
been no Canada Pension Plan, Quebec Pension Plan or medi-
care. 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
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 state-
ment 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 constitution-
al 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 constitu-
tional 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.
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 thejudiciary was not to be involved inthe 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 lcad 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 New-
foundland. 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.
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 legisla-
tion 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 hand-
icapped. 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 termi-
nate on this subject.
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
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 Canadi-
ans 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 constitu-
tional 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 Con-
stitution is a critical step in Canada’s coming of age. Patria-
tion 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
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
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 Houserepresent 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
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 perma-
nent 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 treat-
ment 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 back-
ground, 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
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 Parlia-
ment 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 every-
Where in Canada wherever numbers warrant. I regard these
provisions as the fulfilment ofthe promise of 1867. I am proud
of our official languages, and so is our party. We have to
provide for their full expression.
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 cultur-
al affairs for so long.
Personally, Mr. Speaker, I sincerely regret the decision of
the Ontario government not to recognize officially what actu-
ally 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.
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 federahprovincial 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 recogni-
tion 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 multicul-
tural 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 grandpar-
ents. 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 grandchil-
dren will have as Canadians. I am delighted that the charter of
rights reflects the diversity of all those who cherish their
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
Let me remind the House that while many Chinese Canadi-
ans 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 wcll as
in our rhetoric, the multicultural and indeed multiracial char-
acter 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 govern-
ment 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 differ-
ently. 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 conven-
ient 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 Parlia-
ment 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
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 Canadi-
an 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 prov-
ince 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
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 communi-
ties. 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
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!
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—
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. Ethler): Order, please. No mem-
bers 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 yester-
day 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
Today when you recognized the hon. member for Broad-
view-Grecnwood (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-Duffcrin-Simcoe (Mr.
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
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 unpleasant-
ness. 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
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 Parlia-
mentary 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 Welling-
ton-Dufferin-Simcoe (Mr. Beatty) that he would be the next
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 Temis-
camingue (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 opposi-
tion, 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
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 to-
gether; 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 wcek. 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 break-
ing into ten unconnected fragments of a country. It is common
sense and good will which binds Canadians together; yct the
govcrnment’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 dictator-
ship? 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
The Prime Minister and his confederates in the New Demo-
cratic 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 unneces-
sary, 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 jugger-
naut. 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
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 col-
leagues. In each instance they were fiercely resisted by the
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 Canadi-
ans, the resolution and the methods being used by the govern-
ment 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 govern-
ment 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 interven-
tions 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
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, immedi-
ately 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 acknowl-
edge 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
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 consti-
tutional committce, 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
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 amend-
ing 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
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 argu-
ment 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 amend-
ing 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 Progres-
sive 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 men-
tioned 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
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 amend-
ing formula would not be adequate for making the changes
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 Broad-
view-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 Minis-
ter 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 confed-
eration, 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 constitutional-
ized 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 constitu-
tional 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
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
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 consti-
tutional 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 advoca-
cy advertising campaigns to promote one man’s policies. Per-
haps 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
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 memoran-
dum 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 complain-
ing 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 prov-
inces 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
Some hon. Members: Hear, hear!
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 certain-
ly 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, telecom-
munications, and so on. How is it that in spite of this geo-
graphic 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 sec-
tion 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
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 contri-
bution 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 patria-
tion 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:
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.
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
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
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 politi-
cal 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 confu-
sion. It is politically profitable for the Official Opposition to
spread all sorts of falsehoods, gossip and even hatred, particu-
larly 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 profit-
able 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 deci-
sions 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
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 ironi-
cal, 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
The mini-leader has himself delivered a lifeless and uncon-
vincing 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 some-
what 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 amend-
ment 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 dis-
cussions, 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
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
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 Progres-
sive Conservative and NDP members who, from the outset of
the debates, have demonstrated their objectivity and broad-
mindedness and who have tackled this issue as intelligent
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 interven-
tions and gave us their unrelenting support since the begin-
ning. I want Canadians to know that we have had the support
of several Progressive Conservatives and of most NDP mem-
bers 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 contribu-
tion 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—
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
That was the understanding I had, and that is what I
indicated to Your Honour. That was my understanding; we
The problem is not actually with respect to the ratio be-
tween 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
However, I must insist at this point in time, after having
informed the Deputy Speaker yesterday that we will be follow-
ing 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
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.
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
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 provi-
sions 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 Constitu-
tion 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 Constitu-
tion? Third, how should we patriate?
Fourth, what types of rights and freedoms should be protect-
ed? 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 resolu-
tions binding together New Brunswick, Nova Scotia, Ontario
and Quebec were passed by the delegates of those four prov-
inces 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 some-
what special situation. Here we have Canada, a sovereign state
which claims to have reached maturity and achieved indepen-
dence, 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 govern-
ment 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.
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 consti-
tution 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 Parlia-
ment 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
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 Canadi-
an 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 reword-
ed 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 Ameri-
can 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 amend-
ing 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 Canadi-
ans 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. Speak-
er, 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
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 prov-
inces, 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 prov-
inces. 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 repre-
senting 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 pro-
posal rcquired 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 amend-
ment which had not been approved by its own legislative
In spite of all this, Mr. Speaker, no agreement was reached.
We have not been able to agree on patriation of our Constitu-
tion 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 deci-
sion-making is a collective procedure. Do we require unani-
mous 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 pro-
posed 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 legisla-
tive 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 constitu-
ents that many people have been saying: “Good, the House of
Commons is going to vote on the patriation of the Constitu-
tion.” 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
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 govern-
ment 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 lan-
guage educational rights, judicial guarantee, rights to non-dis-
crimination and another element that the Canadian govern-
ment 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 Canadi-
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 constitution-
al 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 entrench-
ing 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 strong-
ly. 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
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. Speak-
er! 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
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 constitu-
tional 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.
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 loyal-
ty 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
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 institu-
tions will be delayed and possibly even thwarted by this stormy
At a time when Canada needs a great store of good will on
which to build our future, this Constitution will cause ill-feel-
ings towards the federation of Canada.
Felix Frankfurter very wisely observed that “In a democrat-
ic 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 repre-
sentative 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 domi-
nance of a distant government over the regions of the country.
It must be passed with enthusiasm as a first step to a great
We have the choice today to make the constitutional pro-
posals 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
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
Our omnibus amendment to the constitutional proposals is
based upon respect for our federation. Our amendment con-
tains proposals to protect the federal nature of Canada and to
strengthen thc charter of rights and freedoms. We urge sup-
port of our amendments based on reason and through consen-
sus of our population.
Rather than the divisive amending formula currently put
forward in the constitutional proposals, we define the consen-
sus necessary to bring home and change the Constitution as
being the partnership of the federal Parliament and the legisla-
tures of two-thirds of the provinces representing 50 per cent of
We propose an opting-out formula that is limited to protect-
ing 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 fundamen-
tal 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, includ-
ing 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 govern-
ment 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 proper-
ties 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 amend-
ment 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 Parlia-
ment to legislate in respect of abortion and capital punish-
ment. 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
To improve the constitutional proposals, my party has pro-
posed 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 consider-
ation, 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 unrea-
sonable position will result in the balkanization and greater
regionalization of our country.
The Prime Minister has repeatedly based his case for unilat-
eral action on the constitutional convention that the British
Parliament must act upon a request from the Canadian Parlia-
ment 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 agree-
ment 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 relation-
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 Constitu-
tion 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 insur-
ance was transferred from the provinces to the federal Parlia-
ment. Again, consultation and consent was unanimous.
May I call it six o’clock, Mr. Speaker?