Document Information

Date: 1981-11-30
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 13462-13529.
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GOVERNMENT ORDERS

[English]

THE CONSTITUTION

RESOLUTION RESPECTING CONSTITUTION ACT, 1981

The House resumed, from Friday, November 27, consideration of the amended motion of Mr. Chrétien:

[…]

13492

Hon. Jake Epp (Provencher): Madam Speaker, I rise to participate in this debate once again. Subject to the House order that was agreed to unanimously on Friday, on behalf of the Conservative Party I intend to move an amendment. I shall read it first so that members of the House can be aware of its contents and possibly the reasons for the argument being made. Maybe that is a twist or an initiative that has not been too common in this House, but I will do it that way today. I move:

That the proposed Constitution Act 1981 be amended by striking out Clause 40 and substituting the following:

40. In the event that a province dissents from an amendment conferring legislative jurisdiction on Parliament, the Government of Canada shall provide reasonable compensation to the government of that province, taking into account the per capita costs to exercise that jurisdiction in the provinces which have approved the amendment.

Members of the House will recall the comments the Prime Minister (Mr. Trudeau) made in this House on Friday. I have reread his remarks this morning. He indicated that he would be receiving a telex from Premier Bennett, the chairman of the premiers, indicating that they had two points of view in mind. First, they did not want the accord to be broken; second, they did not want any further amendments. It is important that we consider this telex in the context in which it was made.

Notwithstanding the Prime Minister’s comments on Friday, I cannot believe that he or any of the premiers of the signatory provinces are willing to forgo an opportunity to improve the resolution to the point where the province of Quebec might be able to sign the accord. Every member of this party is concerned that the accord remain. We do not want to break the accord. Nor is it our intention today in moving this amendment, which we earlier told all parties we would move, in any way to jeopardize or weaken the accord.

It is important that all of us recognize that members of the Canadian Parliament are part of the process of constitutional change. It must be clearly understood that it is not only the premiers-although it is their decision and their decision only whether they want any legislative action in their legislatures regarding the Constitution-but also members of this House who must understand that Parliament is not simply a bystander waiting to rubberstamp that which has been agreed to.

This is not the time to address the question of federal-provincial conferences and what effect they have in terms of the parliamentary process in Canada. That is for another day. I am sure that the premiers fully recognize that the Parliament of Canada has a responsibility and, despite the Prime Minister’s remarks on Friday, this party at least intends to fulfil its responsibilities in this House.

Some hon. Members: Hear, hear!

Mr. Epp: It is also important to recognize that the Accord signed on November 5 left the door open for the Prime Minister and this Parliament to make accommodations to Quebec which would put forward an olive branch, if you like, or the possibility of the people of Quebec feeling that they were part of the accord and the resolution that will go to Westminster later. That is the spirit in which we present the amendment today.

Whether the present government of Quebec has any intention of signing the accord is a point that I will not attempt to argue today but it is our responsibility to present to the people of Quebec a resolution that is generally acceptable to them because it addresses the traditional concerns of Quebecers and governments past.

I shall go on to argue that our concern is not solely with the province of Quebec but rather with the provinces of Canada, especially those that need equalization, because the amending formula must serve all of Canada for many years to come. I am stressing that it is an amendment not directed solely and only to Quebec, although obviously it addresses the question that surrounds that province’s ability to join the accord; this amendment is one that is universally applicable to all provinces.

The amendment that I propose will reintroduce to the Constitution’s amending formula a reasonable financial compensation to provinces opting out of a situation where powers or rights held since confederation are transferred to the central government in Ottawa.

Two points must be made at the outset. First, constitutional amendments to which reasonable financial compensation will apply are strictly limited to the contents of Section 37 of the resolution before us. It is important that Canadians under­ stand that we are not proposing financial compensation to any province wanting to be an obstacle to any future constitutional change. It applies only to the case of proprietary rights of a province or other rights of a legislature, rights I must repeat and emphasize granted to the provinces by the Fathers of Confederation, and to powers held by the provinces where reasonable financial compensation could apply.

I believe it is also important to underline that this would be the only situation where a province could opt out and receive compensation. It would only be where those powers have been, in fact, transferred and where those powers have obviously been held by the provinces earlier. Opting out and financial compensation could never lead, in my mind, to less standardization or greater decentralization than we have in Canada today, and I intend to explain that. We would have a situation

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where, instead of 10 different standards, there might be two or three or four. Additionally, provinces which had not opted in to a transfer of jurisdiction could, at any later date, decide to opt in. They could do that at any time. However, once any province agreed to transfer its jurisdiction, it could then not opt out again. In other words, once in, one could not get out.

Therefore, I would suggest that it could eventually lead, concerning issues I will point out, to greater standardization. For example, if a province refused to transfer power and the people of that province began to be upset that they did not share the same standards or arrangements as two-thirds of the rest of Canada, they would obviously apply pressure to their government to opt in, to have the same benefits and the same conditions. For example, we have already seen the ability of popular opinion to pressure premiers, the provinces and the Prime Minister. Never has that been more evident than, for example, with Section 28 and Section 34 last week. Therefore, public pressure has changed the mind of the Prime Minister on an issue which has been very central to his administration and to the position in which he sees himself in historical terms.

On the other hand, if the people of the province were convinced that the province could look after the area with which they were dealing far better than the federal government, who could say that they were wrong? Why should they then not leave the matter within provincial jurisdiction? Opting out and financial compensation provide a protection for the unique character of every province, a uniqueness which was recognized by the founding Fathers of Confederation, not only because of the special character of the province of Quebec, I suggest to Your Honour, but also because of the special characters of the provinces of Nova Scotia, New Brunswick and Ontario; and also, I suggest, the special conditions prevailing in the provinces which entered confederation after the original four.

In my earlier remarks, I said that our amendment did not apply only to Quebec. In fact, this party has always been concerned that there be a so-called special status for any province. However, it is important that we look at what protection this amendment would, in fact, give to the province of Quebec. As my leader said in his remarks a few days ago, I, for one, am not a resident of that province, so some members in the House might ask why I am qualified to speak on this issue. I say to them that I believe it is important that hon. members from different provinces relate to the issues which are of importance in other provinces.

Therefore, I do not believe I have to be a Quebecer to understand the significance, for instance, of an article in Saturday’s La Presse where the Quebec Liberal leader, Mr. Claude Ryan, revealed that in his view it was not the intention of the Prime Minister to approach power sharing with the provinces in a genuine spirit. In reading that article, Quebecers must surely have had renewed doubts about the real intentions of the federal government in this whole constitutional exercise. Those are not my words but the sentiments expressed in that article by Mr. Claude Ryan.

Therefore, faced with the prospect of centralization of power in Ottawa, the protection of reasonable financial compensation, I believe, is very important to this debate and to the future of this country. The question can be asked as we address it. Does Quebec or did Quebec have a veto? If I correctly understand the Premier of Quebec, that issue will now be taken by that government to the courts. However, speaking as only one member of this House, if Quebec did have a veto, I seriously question whether that was not seriously jeopardized by the signing of the accord of April I 6 last. That is a personal opinion.

However, regardless of whether or not that province had a veto, I believed that full protection is another issue. When Quebec signed the accord of April 16, I know it did so on the understanding that full compensation would be given if, in fact, powers were transferred from the provinces to the central government or the federal government here in Ottawa. It was a provision of that April accord to which all the signatories gave assent at that time. They knew that financial compensation for any province not opting in to constitutional amendments taking away their jurisdiction was an intrinsic element of an amending formula which recognized the equality of the provinces for the first time.

We on this side of the House, or, at least, we in this party, have argued for the equality of the provinces. We cannot have a federation if different provinces are created with different standards by which they can apply their strength and power to the amending formula. Additionally, the Premier of Ontario recognized the equality of all provinces in the November conference when he volunteered to give up Ontario’s veto. We all recall that action as an attempt by that premier to get an accord which would conclude the process.

Today, I believe that since we have the April accord and the November accord, no province can now object to financial compensation on substantive grounds because, in one way or another, they have all agreed with the concept of the equality of all provinces. If all provinces are equal, it follows that constitutional protection of their traditional jurisdiction must therefore also apply to all provinces.

Since November 5, and again when he came into the House immediately after the accord was signed, the Prime Minister has said he is willing to have ongoing talks with the province of Quebec in an attempt to find agreement on the constitutional accord. The Premiers of the provinces, in their closing public statements of November 5, gave the Prime Minister consider­ able latitude in pursuing discussions with that province. It is imperative that the Prime Minister use that freedom to act before the resolution becomes part of the Constitution.

Hon. members of the House may or may not remember that in order to change the amending formula, unanimous consent of the provinces and the federal government will be required. Unanimous consent is a standard much more strict than that which was imposed on us by the Supreme Court in its September decision. It is a standard which the Prime Minister himself has formerly called the “tyranny of unanimity”.

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Therefore, I want to emphasize to hon. members in the House that if some constitutional arrangement for reasonable financial compensation is ever to be worked out, it must be done now before the resolution is passed here, because in the future, when the unanimity rule will apply, I believe it will not take place. At that stage, consent of only one province would be needed to change the amending formula. Using the Prime Minister’s own arguments, I believe we would then have a “no” from at least one of the provinces. If the government really wants to bring into the accord the only province which is still outside, or, at least, put forward the olive branch to the people of that province who are still outside, I suggest that it should do it now. In the future it may be too late because any province-Manitoba, Prince Edward Island, Ontario—could, in fact, block that attempt. I believe this is the time for Ottawa to prove its good faith to the people of Quebec.

I also want to explain this proposal to the critics of the proposal. One critic, who was quick off the mark, and who has criticized it consistently, has been the leader of the New Democratic Party. This amendment has somehow been interpreted as involving some kind of incentive for provinces where­ by they would be able to opt out of constitutional amendments more easily if they were compensated.

It has also been said that financial compensation would be an incentive to allow rich provinces to prevent constitutional amendments by opting out. What seems clear to me is that rich provinces do not need any incentive because they are already rich. Financial compensation is no incentive to a province which is capable of being self-sufficient from its own revenue base. It can already afford to finance its own unique programs with or without financial compensation. It is only an incentive for provinces which are short of revenue and need equalization.

I believe the leader of the New Democratic Party knows that, if financial compensation were denied to poor provinces, we would be saying in effect “It’s too bad you’re poor but we won’t do anything about that; you’ll just have to give up that jurisdiction to Ottawa if you can’t afford to retain it”. I suggest to the leader of the New Democratic Party that he re-examine the statements he has made.

He has also raised, as have the Prime Minister and his supporters, the concept of a checkerboard Canada. May I remind them that financial compensation is envisaged only for constitutional amendments which would centralize power in federal hands by transferring jurisdiction from the provinces. For instance, they use the argument of medicare. Let us look at that argument. They say that if the transfer of medicare had taken place, it would have been prevented were financial compensation offered to provinces not opting in. In the first place, medicare is a program in a field of provincial jurisdiction, both now and when it was introduced. On the one hand, health care in Canada is a checkerboard because ten provincial governments retain jurisdiction for it to this day. As my colleague has said, they all run it differently and you cannot have a checkerboard greater than that. But on the other hand, the fact of a checkerboard, as they call it, did not prevent the development of, in the Prime Minister’s language, a “national will” as far as health care is concerned. The reality of medicare today is that 11 governments in Canada accept it because they agree with it. There is no checkerboard, yet health care is the responsibility of ten different provincial governments.

Before leaving the example of medicare, I want to make another point. In one sense medicare, to use that argument, is a completely false issue in the context of financial compensation, because it came about historically through the use of the federal spending power, not through constitutional amendment. It is important that everyone understand that distinction. People should not have a fear that suddenly social policies or social programs will disappear from the scene because these were affected by spending power rather than constitutional change.

Medicare was not made possible through a constitutional amendment; it was brought about through the use of the federal spending power. And what was the principle, at least in part, of the use of the spending power? Not all provinces could afford medicare, so Ottawa used its financial resources to assist them. That is the same principle behind financial compensation, nothing else. Not all provinces can afford to exercise certain of their constitutional responsibilities at the same level as others-without assistance from the central government. That does not mean that the division of powers is wrong; it simply means that not all provinces have a self-sufficient fiscal capacity.

Financial compensation is a mechanism enabling them to retain a historical jurisdiction when that is in the best interests of the people of a province without incurring a financial penalty for doing so, without having to buy the right to go on exercising that jurisdiction, without subjecting those citizens to some kind of double taxation. We do not propose an incentive for rich provinces; I repeat, they are already rich, they do not need any incentive.

Before leaving medicare, I want to put a hypothetical situation to the Leader of the New Democratic Party. Medicare was not introduced through constitutional amendment. Suppose it had been. Suppose that rather than using the federal spending power in health care Ottawa had simply asked that health care be transferred to federal hands.

Let us take that hypothetical case. An NDP government was in power in Saskatchewan at the time. It was in Saskatchewan that medicare was born. I ask the Leader of the New Democratic Party whether it would have come, or come as soon, if Saskatchewan had not had jurisdiction over health. And I ask him further whether Saskatchewan could have exercised its jurisdiction if, through the absence of fiscal compensation, it had been forced to accept a constitutional transfer first. Would medicare have come about in that province when it did? The situation is hypothetical. There are no definitive answers. But I suggest to the Leader of the New Democratic Party that the argument has to be made.

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If the Leader of the New Democratic Party wants to argue that social programs would be prevented if Ottawa does not have constitutional jurisdiction over them, I believe he is denying the history of medicare. It began under a provincial government and spread across the land, aided by the federal spending power. If through fiscal compensation, provinces wishing to do so can exercise their jurisdiction without financial penalty, the same situation can occur again. In the meantime, Ottawa retains its spending power and can use it to encourage provinces to provide programs in their jurisdiction which are national in character. I believe that is the flexibility of federalism, and I believe that is the reason Canada works as a nation.

I said earlier that the provinces and the regions are unique in many ways, but we should not in our amendments here attempt to bring about a oneness or a sameness, especially in these areas with which we are dealing today. I believe it is important to show that provinces and regions can be unique in many ways because our amendment has been interpreted largely as an overture to Quebec.

I say to members of the House that this overture is not only to the province of Quebec. It is not that we want some special status for that province or for any other province-and I do not wish to dwell on the question of special status for Quebec. That is not my point. While it is perfectly obvious that Quebec is unique in many ways, it is most unique in areas of culture and language, and the resolution provides for that situation. Nevertheless, it is universally accepted that the Constitution should make provision for the free expression of Quebec’s unique character.

What should be equally obvious, then, is that other provinces are unique as well, albeit in different ways. The genius of Canadian federalism is that it allows all regions and provinces to express their individuality or to have their special requirements met without preventing the free expression of other provinces and without preventing the development of a national will. Financial compensation captures that genius of federal­ ism and expresses it in a technical way.

My colleague says it is possibly the Canadian way. What we are trying to remove is the fear of a province saying no. By saying no it would have the problem then of a population which would say: “Transfer your power, because if you do not transfer your power, we will not have the same rights and the same social policies that Canadians in other provinces enjoy”.

If the House agrees with this amendment to provide financial compensation to all provinces, I believe it makes sense to expand it beyond the area of educational and cultural matters. As I have said, medicare and other pioneering social programs might never have been implemented had jurisdiction been held in Ottawa. I am convinced that is the case because I have seen the suspicions, fears and difficulties that exist in federal-provincial relations on both sides of the table. Nor does it make any sense to limit financial compensation to Quebec. While we are motivated out of a sense of justice for that province and its people, we do not want to stop short of justice for every province and for all citizens of Canada.

I remind this House that when we in this party speak of justice for the provinces, we have in mind justice for the people of Canada, who are sometimes better served by Ottawa and at other times better served by their provinces and legislatures.

This issue has been dealt with at length in committee. In regard to the argument of a checkerboard, while it was made strenuously by members, including the hon. member for Lincoln (Mr. Mackasey), on sober second thought, as we reflect on it and as we look at the new amending formula today, it is important for us to recognize that what this amendment would do is in fact not create special status, it would not create the checkerboard effect that some people fear, but rather would provide the equality for all provinces which we seek.

Some hon. Members: Hear, hear!

Mr. Edward Broadbent (Oshawa): Mr. Speaker, all parties in the House and the nine provincial governments have agreed there is a great deal in the constitutional resolution which will benefit all Canadians. However, we all know it contains certain flaws, many of them rather important. So far in response to this reality we have improved some of those flaws by producing positive changes affecting the equality of women and equality for the aboriginal peoples of Canada. However, in these final days of this historic debate more needs to be done; more care needs to be given to what we are about to finish.

At the time of the accord all three federal leaders expressed concern about the absence of Quebec’s signature. All were serious and all three said greater efforts were required. The government responded, I candidly say, by offering financial compensation for constitutional changes in the educational and cultural domains. Although this was offered all provinces, what I want to stress is that no one in this country is under any illusion that the real reason was to come to grips with Quebec’s legitimate and historic concerns. More, as I have said, needs to be done in this direction.

Some Canadians have held the view that, no matter what is included in the constitutional resolution, the province of Quebec would not agree. The most legitimate reason for this assumption is that the Parti Quebecois, constituting a government committed to sovereignty-association, would find it virtually impossible to patriate a constitution that remains federal in nature. I candidly say that my own disposition has been of this kind. I have said, and I repeat now, that I would be surprised, pleasantly so, to find any proposal which the present government of Quebec would accept.

Nonetheless, I have repeated two further points since the day of the accord with the provinces. We in this Parliament and we in the provinces of Canada outside Quebec must keep trying to persuade the government of Quebec, on the one hand, with reasonable offers; but in the final analysis the goal must be to have a proposal that gains the support, to use an old phrase, of the hearts and minds of contemporary Quebecers, and that is compatible with federalism—compatible with maintaining Canada—even if it is rejected by the present

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government of the province of Quebec. Our goal in this Parliament in these last days of debate must be to convince Quebecers who believe in a federal Canada that what we desire is a genuinely renewed federalism.

Some hon. Members: Hear, hear!

Mr. Broadbent: Today on behalf of my colleagues I want to make such a proposal on the amending formula, and I hope it is one the government will consider very seriously before reaching a final decision. I also hope it is one which will obtain the support of the official opposition. It must meet, for me and my colleagues, three important tests: it must be compatible with federalism; it must be adequate in meeting the legitimate concerns of Quebec; yet it must be flexible enough to enable every province and the federal government to innovate in the future to provide a more just society. We must have a renewed federalism that can continually provide for a more equitable Canada.

Before turning to my specific proposal I would like now to discuss the amendment just proposed by the Progressive Conservative Party of Canada. In a speech on Friday, November 20—and this was referred to in the speech we have just heard-the Leader of the Official Opposition (Mr. Clark) said quite clearly that Parliament should attempt to bridge the gap that exists where we have, and I quote:

—on one side…the Canadian government and the nine provinces where francophones arc a minority; on the other side by accident or by design…the one province where francophones are the majority.

The Leader of the Opposition then suggested that the way to bridge the gap is to include in the constitutional amending formula the general opting out formula agreed to by the government of Quebec and seven other provinces last April, about which he correctly noted the following, and again I quote the Leader of the Official Opposition:

Quebec did not give up its veto right for nothing. It was offered in exchange for a reasonable guarantee of fiscal compensation for provinces who chose to opt out, that is, who decide not to go along with the constitutional amendment. It is common knowledge that this guarantee of full fiscal compensation was the only reason why Quebec signed the accord. It was also common knowledge that if the guarantee were withdrawn, Quebec would reject the accord so that taking this compensation out of the accord was tantamount to forcing Quebec to withdraw.

I agree with all of those words uttered by the Leader of the Official Opposition. The Leader of the Official Opposition, I add, however, was perfectly correct in this assertion. He was quite right to point this important historic reality out to the rest of us. Some of us were well aware of it.

However, what the Leader of the Opposition should have added was that the overwhelming reason and justification for this proposal was not that the majority of the provinces wanted the opting out right, but because of the need to respond positively to the province of Quebec, they wanted to provide for fiscal compensation if, as a result of seven English-speaking provinces and the Government of Canada agreeing to transfer provincial jurisdiction to Ottawa, Quebec wanted to opt out. That, I say to hon. members of this House, is the reality which the Leader of the Opposition failed to mention in his speech in the House just a week ago.

It is clear to the New Democratic Party that if we accept opting out with fiscal compensation to all provinces we have a potential threat in limiting the ability of the Government of Canada in either maintaining current national programs of equality or initiating new ones such as, for example, a guaran­ teed annual income which falls within provincial jurisdiction.

As a general proposition, the Government of Canada cannot justify its involvement in a national program in which its responsibilities to the citizens would vary from province to province, even though it taxes every citizen in Canada. In addition, if all provinces could opt out with financial compensation, what incentives would there be for the rich provinces to respond positively to new national programs such as a guaranteed annual income program?

I agree with the hon. member who spoke a few moments ago that the spending power of the federal government ultimately forced medicare to come in in the province of Ontario. Because of the spending power of the government and the overlapping jurisdictional authority at that time, that situation enabled the government to do it. I say to the hon. member who has just spoken that I am not talking about programs in which the federal spending power alone is applicable; I am talking about programs in which there would have to be a transfer of jurisdictional authority from the provinces to the Government of Canada. That is crucial to the argument.

As a Canadian and one who comes from a wealthy province, I say that the rich provinces would inevitably opt out and the poorer majority in our country would suffer. Even more inevitable-this is crucial to the history of federalism in the years beyond the turn of the century-because of the likelihood of the rich provinces opting out, they would effectively kill further national innovation which could be profoundly important for a high level of equal existence and experience for Canadians from coast to coast.

In short, if we accept the Conservative amendment, in my judgment the result would be either a checkerboard Canada or the status quo, and I say that in all sincerity.

Rather than jeopardize the possibility of further innovation which could provide for a more equal Canada, I appeal to hon. members to consider an alternative which honestly and openly takes into account something which we have all known for years, and that is that the unique constitutional arrangements which have existed for Quebec since confederation should and can be extended without damaging our cherished federal union. Indeed, I suggest that the change I propose on behalf of my colleagues will deepen the possibility of unity precisely because it is grounded on the notion of the equal right of our two great cultures to flourish, innovate and invigorate one another in a constitutional structure in which the majority culture guarantees protection to the minority, whose rights to flourish are morally equal to those of the majority.

I want to remind the House that all federal parties and virtually all the provincial premiers said at the time of the referendum that at this hour in our history we must under-

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stand that Quebec is unique. By this I mean-and I believe most others, in discussing the situation, meant-that Quebec’s uniqueness differs in kind from that of the uniqueness of other regions of Canada. It is certainly the case that the prairies differ from British Columbia, that Ontario differs from Newfoundland and, indeed, that Newfoundland is quite different from the other Atlantic provinces.

Before discussing Quebec in particular, I would like to say that not only are the differences as I have described them in terms of our human experience, either as politicians or as Canadians travelling in English-speaking provinces, but I am pleased to note that they have been portrayed by such distinguished Canadian writers as Margaret Laurence, Miss Atwood, Mordecai Richler and others who are now on the world stage of English literature. They have portrayed the diversity of English Canada, that there is no such thing as a monolithic English Canada and that we are finally beginning to well understand—as many people in Quebec, I am pleased to say, are beginning to understand—that this is so.

[Translation]

As we all know, on this last point, Quebec’s situation is unique and different from that of any other province. This fact is recognized not only by intellectuals and in the Pepin-Robarts report, but also by most Canadians from every region. It has also been recognized by former leaders of all parties. I am thinking about Robert Stanfield and Lester B. Pearson. The latter made a statement which has now become a cliche and which simply meant that Quebec was not a province like the others.

Quebec is the main centre of French culture in Canada, excluding the large number of francophones in New Bruns­ wick, Ontario, Manitoba and elsewhere. This difference this rich culture inspire us, and they are assets which we all share and cherish. No one should therefore be surprised to find that, surrounded by anglophone provinces and over 200 million Americans, Quebecers are more aware of their collective existence, of their differences and of the need to protect their cultural existence than other Canadians. For these reasons, Quebecers want to be protected by our Constitution. If we fail to understand this reality, we fail to understand Quebec and to understand Canada. If we fail to meet this need, we shall be doing a disservice to Quebec and to Canada. I therefore move the following amendment to the amending formula.

[English]

I move, seconded by the hon. member for Hamilton Mountain (Mr. Deans):

That the proposed Constitution Act of 1981 be amended by:

Amending the motion of Mr. Epp of November 30 amending the motion of Mr. Chretien that an address be presented to Her Majesty requesting that a measure be tabled before the Parliament of the United Kingdom by striking out, in the first line, “a province” and substituting “the province of Quebec”.

Some hon. Members: Hear, hear!

[Translation]

Mr. Broadbent: This constitutional change will have positive results for Canada as a whole. Historically, Quebec has always had a veto to oppose any change proposed by the rest of Canada. Many Canadians have objected to this veto, and rightly so. Our amendment would take away this veto. Briefly put, it would allow seven provinces or more to transfer areas of provincial jurisdiction to Ottawa with or without the agreement of Quebec. Provinces with an English majority would be able to innovate in constitutional matters. However, our amendment would allow Quebec to keep its traditional powers without incurring any financial loss. This amendment does not give new powers to Quebec and it would not entail any additional expenditures for the other Canadians. It would simply allow Quebecers to retain what they already have and wish to retain. It represents a positive option for Quebecers. Such an amendment would provide security to Quebecers within Canada and lead to the type of renewed federalism which was promised at the time of the referendum. There would be fewer occasions for conflict and the Canadian duality would be recognized, all this within the context of federalism. There can be no losers. Everyone would gain. Therefore, Mr. Speaker, I ask the government, the official opposition and the government of Quebec to support this proposal.

Hon. Serge Joyal (Minister of State): Mr. Speaker, a number of speakers have pointed out the historical significance of this debate as the last “Canadian” step towards giving our country the status of a fully independent state, both in fact and in law. This step, in fact, marks the close of a long series of events which started in 1791 with the election of democratic legislatures. One of the patently false claims being circulated most widely today is that the long march towards independence has taken place and will end without Quebec. And some people are very upset because at this final stage we are witnessing a sometimes bitter struggle between two Quebecers, as if this were happening for the first time.

History gives us an entirely different view. In fact, from Louis-Hippolyte Lafontaine to Pierre Elliott Trudeau, illustrious Quebecers have always been in the forefront of Canada’s long and lengthy struggle towards independence. It is also true, unfortunately, that from Louis-Joseph Papineau up to Rene Levesque, there have always been Quebecers who opposed this process and who defended the status quo with fierce determination. I think it is appropriate to recall these events today, in order to put the present debate in its proper historical context.

It was Louis-Hyppolyte [sic] Lafontaine who, in the 1840’s, took on the task of repairing the political damage caused by Louis­ Joseph Papineau, leader of the 1837-38 rebellion, and who, through his alliance with Robert Baldwin, succeeded in rein-

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stating the use of French in the legislature and in obtaining responsible government. Nevertheless, he was constantly and fiercely attacked by Papineau upon his return from exile and by his followers, then led by Nielson and Viger. Joseph Cauchon said the following about Papineau in 1848, and I quote:

Some men arc bent on destruction but have never built on the ruins they left behind.

In 1867, there would have been no confederation or Canadian federalism, and Canadian federalism would not have been as decentralized as it is without George Etienne Cartier. Once more, it was Papineau and his followers, this time led by Antoine-Aime Dorion, who were opposed to the federation plan and violently attacked Cartier. However, it was George Etienne Cartier who initiated the codification of civil law in Quebec and established the province’s exclusive jurisdiction in that field.

At the beginning of this century, Wilfrid Laurier decided to take a stand against London’s imperialist designs and to affirm Canada’s political autonomy in the shipping issue. The ship­ ping bill tabled in 1910 involved, for the first time in our history, a definition of Canada’s status as a country not fully independent of the empire nor totally integrated in the latter. To Laurier, it was an opportunity for Canada to act responsibly, while setting itself apart from the Empire. To the Ontario Tories, Laurier’s gesture constituted a serious act of disloyalty to England. To the Quebec Conservatives and Henri Bourassa’s nationalists, the gesture reeked of colonialism. Canada’s autonomy became one of the major issues in the 191 l election. Laurier was defeated by a curious alliance of imperialist Tories and Quebec nationalists. In an article published in Le Devoir on December 29, 1911, Omer Heroux confirmed once again that extremes tend to meet, and I quote:

Laurier’s shipping bill was defeated because it satisfied no one, neither the nationalists nor the imperialists. Both parties were agreed that the hybrid policy should not be allowed to proceed. It was logical and unavoidable.

After Laurier’s defeat, it was also logical and unavoidable that the views of the imperialists rather than those of the nationalists should triumph.

As for Laurier, at the beginning of 1912 he declared, somewhat frustrated, and I quote:

As a penance, I have to read Le Devoir every day.

And he added:

As I was saying just now, we have been attacked by all the extremists; those who were most acrimonious, most violent and most unfair in their attacks were those who call themselves nationalists in this country. Our policies exasperated them; our moderation put them in a frenzy and the word conciliation had them foaming at the mouth. To hear them talk, no good could come out of Ottawa; the Liberals, from whom they were separated, were worthless; the Conservatives were even worse.

Ernest Lapointe, Mackenzie King’s right-hand man, was a dominant figure in Canada between the two wars. Over the protests of London, in 1923 he was the first Canadian representative to sign, alone, an international treaty with the United States. At a federal-provincial conference in November, 1927, Lapointe, as Minister of Justice for Canada, proposed that our country should have the right to settle its own affairs, both internationally and nationally, and should have the authority to amend its own Constitution. Under the Statute of Westminster passed in 1931-Lapointe was one of the provincial negotiators-Canada’s external and internal independence was recognized. Unfortunately, at the time, who was supported by the Quebec nationalists, London retained the authority to amend Canada’s Constitution.

In 1949, Louis St. Laurent, the then Prime Minister of Canada, succeeded in passing bills by which the Supreme Court of Canada became the court of last resort for all Canadian cases, with three out of nine seats being reserved for representatives of Quebec, and in giving the Parliament of Canada the power to amend its own Constitution without going to London. This time it was Maurice Duplessis, again supported by Quebec nationalists, who protested these expressions of emancipation. And in 1952, Louis St. Laurent decided it was time a Canadian was appointed governor general.

In 1964, thanks to a commitment made by Lester B. Pear­ son at the insistence of his Quebec colleagues, especially Maurice Lamontagne, the bill to adopt a Canadian flag was passed by Parliament. Since 1925, attempts had been made to give Canada a distinctive emblem. Because of the political situation at the time, the Progressive Conservatives were opposed to this bill. However, today no one, except perhaps the Quebec separatists, would question the pride felt by the vast majority of Canadians with respect to our flag. As for Canada’s national anthem, adopted by Parliament in June 1980, the music was written a hundred years before by the Quebec composer Calixa Lavallee, to words by Justice Alphonse-Basile Routhier. The English version dates back to 1908. Another Quebecer, Pierre Elliott Trudeau, proposed its adoption.

In giving this short overview of the steps that have led to the complete emancipation of our country, I wanted to make it clear that Quebecers have always played a major role. As leaders of the Liberal Party, as ministers of the Crown and as members of the House and the Senate, Quebec Liberals have always felt that they had to continue the work undertaken by Lafontaine and bring it to fruition. At times this was done at the cost of a lost election and sometimes of attacks and insults of all kinds but always, and today is no exception, they shared the belief that the fight had to go on. At each stage those Quebecers felt certain of reflecting and expressing the concerns of their fellow French-Canadians in that process of shaping the country.

Unfortunately, they always met along the way other Quebecers who were afraid of change and in favour of the status

[Page 13499]

quo for the sake of some outmoded survival of times past or because of inferiority complex. In that context, the current bitter fight is better understood. What is involved historically is a conflict between two groups of Quebecers with basically different views of what is in store for their fellow citizens rather than a personality conflict. I for one am proud that Quebecers at every high point in their history chose the road indicated by Lafontaine rather than Papineau, which would have led directly to annexation by the United States.

Today, we are on the eve of the most significant step in our constitutional history since Confederation, not only because we will soon attain full constitutional independence, but above all because we are going to ensure that provinces in the future will have the absolute right to play an essential role in this country’s constitutional development, that Canadians will enjoy basic rights that are protected against the whims of governments, and finally that Canada will become a country commit­ ted forever to equal status and rights for the French and English languages.

Many of our predecessors attempted to reach that goal. Lapointe, St. Laurent, Favreau and even this Prime Minister (Mr. Trudeau), in Victoria and more recently in Ottawa in 1980, met with failure and had to postpone that last and fundamental step.

As always they met along the way the supporters of the status quo, knowing or unknowing successors of Papineau.

Our history was made despite their nationalism based on resistance and mere survival. Under that philosophy, language was once the keeper of the faith and now the keeper of the people. This new kind of clericalism is nothing but a trap. It might lead us to miss the Canada of the year 2,000, just as the old one kept us for more than 100 years in a marginal rural society apart from the development of the industrial society.

The Quebec challenge is not to ensure that the French language and culture will prevail in Quebec. That goal has already been reached. According to official figures, 86.2 per cent of young Quebecers are now in the French education system; the number of students in English schools declined from 250,000 before 1975 to the current 168,000, a 33 per cent drop over six years. Even with the “Canada clause”, the invasion of Quebec by English-speaking Canadians from other provinces is not to be feared anymore. Indeed, the opposite will happen. Quebec’s new cultural challenge focuses on the improvement of the quality of our language and culture. This is a challenge for each and every one of us to meet. Our proximity to the United States makes it difficult to reach that aim, but then it would be wrong to suggest that separation from the rest of Canada would make it easier.

Another major imperative for Quebecers is prosperity and a balanced economic growth. Several scenarios, especially that drawn up by Julien, Lamonde and Latouche in their book entitled Quebec 2001. une societe refroidie, predict a growing crisis of the economic structure in Quebec. It would be deceitful to suggest that Quebec would more easily overcome that economic crisis by seceding rather than remaining within Canada, with the huge transfer payments which that relationship implies and which from now on, following the passage of this resolution, will be made to Quebec as a matter of right formally guaranteed in the new constitution. I am afraid that if we devote our best efforts to control that structural economic crisis, we will not succeed in overcoming it completely. During the two next decades, jobs will be principally created in Western Canada.

An increasing number of francophone Quebecers will probably decide to take part in a second large rush to the West. Moreover, the migratory movement has already begun. From 1976 to 1980, the annual net average of immigration from Quebec to other provinces was 33,300 people. From 1980 to 1985, the average is expected to be 32,000 according to the task force on the development of the labour force. By extrapolating this figure to the year 2000, it can be estimated that about 640,000 Quebecers, in net terms, will emigrate in the next two decades.

In that context, care must be taken to avoid the errors of the first great rush in the second half of the 1800s when 900,000 of our own people left Quebec permanently. Another challenge must be met: that of improving considerably the linguistic and cultural environment of francophone minorities outside Quebec in order to ensure the full development of those communities. Unfortunately, that challenge has never been the priority of the Quebec government. On the other hand, since 1963 and particularly during the ’70s, the Canadian government met that challenge, thanks primarily to the courage and perseverance of the present Prime Minister of Canada. The official languages act, specific federal subsidies to the provinces and francophone groups, the extension of French radio and television networks from coast to coast in Canada are among the steps taken by the Canadian government to improve the lot of francophone minorities.

The resolution now before us is another very important step in the same direction. Of course it does not go far enough but still the fact is that it enshrines in the constitution the full linguistic rights of the Acadians of New Brunswick and the right of other French-speaking people outside Quebec to be educated in their own tongue at the primary and secondary levels throughout Canada. There will undoubtedly be a lot of work left but I am convinced that with patience and courage we will succeed. In that context, I do not understand those who are against this resolution because it does not go far enough, yet at the same time reject the significant progress it guaran­ tees. Probably without realizing this, they too are in favour of the status quo.

Finally, there is another right which will be formally guaranteed by the constitution, namely the right of the provinces henceforth to participate fully in the constitutional evolution of

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the country. The Supreme Court of Canada ruled recently that even though there is a convention which requires a consensus of the provinces with respect to any constitutional change which affects them, the federal Parliament is strictly entitled to make such changes unilaterally. In my opinion, that is an anomaly which is inconsistent with a genuine federalism because a mere convention which offers no legal recourse is not a sufficient guarantee for the protection of provincial rights and powers.

It is precisely that unacceptable anomaly which will be corrected by the resolution and the amending formula. This formula is not the best, of course, but at least it does guarantee Quebec’s cultural sovereignty. Personally, like others on this side of the House, I would have preferred the Victoria formula under which Quebec had the right of veto. It is unfortunate that Mr. Rene Levesque did not advocate that formula when it was time, unlike the Canadian government and those of Ontario and New Brunswick. In short, it is extremely sad indeed that the government of Quebec has not made any real effort to improve this resolution so as to be able to give its consent without making overstatements of delivering unacceptable ultimatums. And yet, upon reflection we should have realized at the outset that such agreement was impossible. The PQ government could not drop the first clause of its platform which is sovereignty. As was stated in their white paper, they do not believe in renewed federalism. I quote:

In the opinion of the government of Quebec, the pitiful history of numerous as well as useless attempts at revising the constitution proves just how delusive it will be henceforth to think about renewing federalism in a way which might be satisfactory at the same time for both Quebec and the rest of Canada.

Not only do the PQ supporters not believe in renewed federalism, but they certainly do not want to have anything to do with it. In that respect I recall a statement made to the Canadian Press last November 25 by Mr. Sylvain Simard who was recently elected Vice President of the Parti Quebecois thanks to the support of Mr. Levesque. I read that statement in The Citizen of November 26 but, unfortunately, I did not find it in Le Devoir. Therefore I will quote it in English:

[English]

What I myself feared was that Levesque’s mission (to Ottawa) would result in a certain success, an agreement.

The (1980) referendum forced him to play the game (of federalism), but for us it was an extremely dangerous game because an agreement would have paralysed us for years.

That is the vice-chairman of the Parti Quebecois. If one wants to discuss an agreement with the present representative of the Quebec government, then it is better to have that in mind.

[Translation]

That is the naked truth. The PQ government never really wanted to enter into an agreement. Mr. Levesque would not accept to scuttle his party to meet the Canadian challenge. And in his effort to convince Quebecers to favour independence, he uses every means at his disposal, even deceitful propaganda against the Government of Canada which he claims is responsible for all kinds of evil, treason and encroachment. In this respect, the recently published PQ pamphlet entitled “C’est souverainement le temps” provides a good illustration of this dishonesty which few of the so-called impartial observers in Quebec have the guts to point out.

The PQ pamphlet states, and I quote:

The very same year, 1927, Ottawa grabled an area of Quebec jurisdiction, that of old age pensions.

To say that Ottawa grabled that area is wrong. The fact is that the Quebec government established its own retirement scheme in 1965. Moreover, when the Government of Canada proposed its old age security program in 1950, it did so through a constitutional amendment agreed upon by all the provinces. Mr. Duplessis, the then Quebec Premier, made the following statement in English during the federal-provincial conference which had been called for that purpose:

[English]

We are willing, indeed pleased, to co-operate with Ottawa. If any modification of the constitution is appropriate in the circumstances, well, we would be willing to consider in a most friendly way the possibilities of modifying the constitution in the matter of old age pensions.

[Translation]

As one can see, the federal government did not act by force, as the Parti Quebecois now maintains. Elsewhere in its publication to PQ states, and I quote:

In 1941, Ottawa invaded a social field which belonged exclusively to the provinces: unemployment insurance.

What that document fails to point out, however, is that at that time also, the Constitution was amended with the agreement of all provinces including Quebec. So how can they speak of encroachment when the Constitution was amended, with unanimous consent, in order that all Canadians could benefit from this great social measure? Might I also recall that the solicitors for Quebec themselves, when arguing their case before the Supreme Court last April, stated that Quebec had always freely agreed in the past to constitutional amendments.

But these contradictions do not bother the Parti Quebecois. The PQ pamphlet contains the most far-fetched and deceitful statements to try and make people distrust the federal government, while it has given our country, always in the interests of Quebecers, one of the most generous social security systems in the world, within the purview of the Constitution. Yet, the PQ party maintains that Ottawa is taking over, encroaching, grabbing, envading. It is with this type of propaganda that the Parti Quebecois government is launching its campaign for an independent Quebec which could, apparently, come close to civil disobedience. It is getting ready to repeat the unfortunate experience of Papineau, in which most Quebecers were never involved but which nevertheless lead temporarily to a deadend.

I have listened attentively to the amendment moved by the hon. member for Provencher (Mr. Epp) and the sub-amendment introduced by the hon. member for Oshawa and leader of

[Page 13501]

the New Democratic Party (Mr. Broadbent). Both proposals are sincere attempts at arriving at some sort of arrangement or compromise acceptable to the province of Quebec. The Canadian government is not in principle opposed to fiscal compensation. Hon. members will indeed recall that the constitutional resolution tabled last November 18 by the Minister of Justice (Mr. Chretien) provided for fiscal compensation in the fields related to education and cultural affairs. But the Right Hon. Prime Minister explained last Friday in the House the position taken by the premiers who signed the accord on November 5. We therefore cannot ignore their views in this regard. I would also point out that there is a flaw in each of the proposals introduced by the hon. member for Provencher and the hon. member for Oshawa.

The first proposal, by the hon. member for Provencher, is for full fiscal compensation. However, the hon. member for Oshawa would like to see this restricted to Quebec. In fact, both ignore the basic objection that it is desirable to ensure and guarantee that constitutional amendments aimed at establishing Canada-wide programs consider the specific option open to some of the richer provinces, namely to opt out of these programs.

The hon. member for Oshawa answers that he would rather keep full compensation, with all the drawbacks it entails, restricted to Quebec. However, and I am expressing the position of the government of Canada, at the next stage in our constitutional reform, the government will always be willing to consider proposals for meeting this objective, which would also enable us to meet the objective pursued by the hon. members for Provencher and Oshawa. However, I should like to point out to both hon. members that at this stage, where we have a commitment from nine provincial first ministers to discuss further amendments in the near future as soon as the Constitution has been patriated and the amending formula established, we can draw satisfaction from the fact that the objective or concept of fiscal compensation has been accepted in the present constitutional resolution, and that the Canadian government undertakes, if such is the desire of the other provinces, to discuss the matter at the next federal-provincial conference and to seek a formula that takes into account the objectives pursued by the hon. member for Oshawa as well as of the objections we have already expressed in this regard, namely that the automatic withdrawal of any province would jeopardize the establishment of programs that should normally be accessible to all Canadians.

Today, Mr. Speaker, I can say once more that I am convinced the vast majority of Quebecers will not be blinded by the false promises of the Pequistes who, in fact, have no respect for the people of Quebec. They do not know the people. It is true Quebecers will not let their leaders forget their distinctiveness, but neither will they tolerate the neglect of other equally important aspects of their individual and collective existence which they share with their North-American neighbours. Quebecers want to preserve their special status, but they do not want to be isolated in the process. And especially, they do not want to be governed solely on the basis of their differences. That is exactly what the Pequistes refuse to understand and what we, Liberal members for Quebec, always try to realize. In this respect, at least, we can claim to be closer to the people than the Parti Quebecois, even if the PQ accuses us of betraying Quebec.

It is of course unfortunate that during the last negotiations there were no true representatives from Quebec on the provincial level. But this in no way means that the last step on the road to this country’s emancipation will be taken without Quebec. We, Liberal members from Quebec, following the Right Hon. Prime Minister of Canada and the hon. Minister of Justice, have been full-fledged participants. We are convinced that in supporting this resolution, we are following in the footsteps of our predecessors. We also believe we are expressing the wishes of a great many Quebecers and respecting both their personality and the strong ties that bind them to a greater country. I for one am grateful to the Prime Minister and the Minister of Justice for having associated me to this historic task, and I am proud as a Quebecer to have been one of its participants.

Mr. Broadbent: Mr. Speaker, will the hon. minister accept a question?

The Acting Speaker (Mr. Ethier): Agreed. The hon. member for Oshawa.

Mr. Broadbent: Mr. Speaker, I listened closely as the hon. minister placed in their historical context the two traditional attitudes that have prevailed in Quebec. But finally, in that exercise he chose to launch into an attack against the Parti Quebecois. In this debate this afternoon, neither the Progressive Conservative member nor myself have dealt with that situation. Generally, I feel we are in agreement with you on this.

My question is therefore the following, concerning federal­ ism. Does the minister think that Mr. Ryan, as a Quebecer, as a federalist, is on his side on this issue, or on ours?

Mr. Joyal: Mr. Speaker, I am quite pleased that the hon. member for Oshawa refers to the position taken by Mr. Ryan on this.

I would remind him that in a telex he sent to the Right Hon. Prime Minister on Monday November 9, Mr. Ryan suggested three ways of settling the dispute which developed at the time the constitutional conference of November 5 was adjourned.

His first proposal was that financial compensation be grant­ ed with respect to education cultural affairs. He also suggested that, where other fields of provincial jurisdiction were concerned, we begin discussions immediately or make such discussions the very first item on the agenda of the following

[Page 13502]

constitutional conference. I am referring to the telex of November 9. He suggested two other solutions for the other two points, namely the Canada Clause with regard to Section 23 and a reassessment of the mobility clause.

When the Right Hon. Prime Minister spoke before the Quebec section of the Liberal Party of Canada in Quebec City two weeks ago, following the representations contained in a Jetter to him from my hon. colleagues of the Quebec caucus, he proposed acceptance of Mr. Ryan’s first suggestion which is now included in the constitutional resolution tabled by the Hon. Minister of Justice on November 18. Afterwards, the Hon. Minister of Justice had to consult with the premiers who had already signed the accord to obtain their consent. In the meantime, Mr. Ryan had further discussions with his officials and advisors, and he asked that the financial compensation provision be reviewed with a view to extend it to communications, and also to social affairs among other things.

Meanwhile, during the discussions that followed on reinstating in Sections 28 and 24 the provisions related to native rights, the premiers indicated to the Minister of Justice that this was the accord which they were willing to accept in order to meet at this point the representations submitted by the province of Quebec, the official opposition in Quebec and this side of the House. The Prime Minister has therefore partially met the request for full financial compensation. What I have stated today is that the government does not object to extending this compensation in principle, but that for the moment, it is bound by the telex and the agreement expressed by Mr. Bill Bennett who, as chairman of the first minister’s conference, who clearly told the government: We hope that the House and the Canadian Parliament will complete the debate on the Accord as quickly as possible, and that patriation can be effected without delay, and that we can meet again to resume our discussions on this matter.

This of course is in response to the objections or the wish for compensation expressed by Mr. Ryan later on and takes into consideration the objections raised by the hon. member for Oshawa himself ten days ago in this House when he said: “As concerns social programs, an opting-out clause with full financial compensation could cause considerable difficulties in implementing new programs designed for all Canadians”. It would therefore probably be possible to have discussions and to develop a formula which would meet both Mr. Ryan’s suggestions and that the hon. member for Oshawa and ourselves have been saying during this debate. I therefore believe that the wise thing to do today, tomorrow and Wednesday afternoon would be, of course, first of all, to go on with this debate because opinions are not cast in cement in this regard, as the hon. member for Oshawa has admitted. As far as we are concerned, on the government side, we are willing to discuss this matter during a forthcoming constitutional conference where we would try to define it better, but we do not want to prevent this resolution from being agreed to as soon as possible so that we may continue meeting Mr. Ryan’s objectives which are those of the Quebec Liberal Party, the objectives of the hon. member for Oshawa and the most sincere objectives of the hon. member for Provencher.

I therefore believe that it is in such a climate that the debate must continue during the next few hours and not in a context of outbidding where everyone would try to add a bit more to the resolution to make it more attractive to the Parti Quebecois government since the hon. member and myself both know that, in this regard unfortunately, we have to consider the statements made by the duly elected representatives of the Parti Quebecois at their conventions and at public political gatherings.

So I feel it is our duty to look after francophones in Canada. I am delighted to see that the hon. member for Oshawa is doing his utmost in this respect, and that is exactly the trap the PQ would like us to fall into, namely, to refuse from now on to meet the particular needs of Quebecers. And as I illustrated this afternoon, our predecessors have always done everything possible to meet the specific needs of Quebecers. I will not repeat either what Cartier, St. Laurent and Pearson proposed, or what we ourselves are proposing now in this regard.

When the next stage comes, the hon. member for Oshawa, whose party has made many constructive suggestions through­ out this Constitutional debate, will be able to continue taking part in these discussions. And I emphasize that one of the fundamental aspects which has been changed, compared with previous Constitutional conferences, is that the Government of Canada will no longer take part in them, as it used to, without the support of a resolution passed by the House, without having involved the Parliamentary committees of both the Senate and House of Commons; and from now on, when we take part in Constitutional conferences, under new precedents which proved very useful over the past few months, we will be able to accept the participation of hon. members from all the parties in the House. And I think that in this way, we will be able to respond positively to a request which the hon. member has made and which Mr. Claude Ryan, the Leader of the Quebec Liberal Party, has supported.

[English]

Mr. Epp: Mr. Speaker, in order that the debate may go forward in an orderly manner, I wonder if the minister would accept a question.

Mr. Joyal: Agreed.

Mr. Epp: I want to thank the minister and members of the House for their courtesy. I was pleased to hear the minister indicate that the principle of full compensation had the sup­ port of the government. In view of the statement he has now made that there is to be a final vote at three o’clock on Wednesday and that the matter of the time of the House is now resolved—in other words, the debate will end at that

[Page 13503]

time—and in view of the telex received from Premier Bennett and the good will that prevailed on November 5 between the Prime Minister and the provinces, which I interpreted as giving the Prime Minister the ability, the freedom, to continue discussions with Quebec and that that would not jeopardize the accord, and in view of his endorsation of full compensation, does the minister now feel that discussing it and trying to come to some agreement would jeopardize the accord?

Mr. Joyal: Mr. Speaker, I thank the hon. member for Provencher for his question, which will give me an opportunity to clarify one aspect of the answer I gave to the hon. member for Oshawa.

The point I want to make is that the government is not opposed to the principle of full compensation because the government has already accepted the implementation of that principle in relation to education and cultural matters. I think the hon. member will clearly understand that.

What I said clearly to the hon. member for Oshawa was that at this stage all members and parties in this House have unanimously agreed to conclude this debate not later than Wednesday at three o’clock.

The chairman of the premiers’ conference very clearly stated in a telex to the Prime Minister last Friday that at this stage the premiers of the provinces are not in a position to reopen the discussions in relation to that very aspect. The position that I expressed today in the House is that we agree there might be progress, change and suggestions to be considered which could probably be entrenched in the Constitution at a later stage. However, at this point it would be much preferable to conclude the debate by continuing to discuss the implications of full compensation in the manner which has already been raised by the hon. member for Oshawa and the hon. member for Provencher. We know that within a year, according to Section 36, we are committed to a constitutional conference concerning at least one item, the aboriginal rights issue. We will be in a position at that time to discuss that aspect again. If there is a need and a consensus reached to entrench that matter in the Constitution, we will then have the kind of amending formula and constitutional process to achieve that result. I am quite sure that if we keep the good will existing between the Prime Minister of Canada and the premiers of the provinces which was just mentioned by the hon. member, we will be in a position to make progress.

If we cannot comply with the suggestion made by Premier Bennett at this stage, and we try to improve it without being in a position to obtain unanimous agreement in the last hours of debate, a kind of pressure might be created which would be counterproductive. Good will should be kept. I think the hon. member understands that the best way of continuing to make progress, as demonstrated in the past weeks and days, is essentially to debate the issue as hon. members have done. However, we should make sure that that objective will still be in the minds of the premiers and the Prime Minister of Canada at the next constitutional conference so that they will be in a position to reopen discussion on that very subject. I think it is pretty satisfactory in terms of the consensus in arriving at that point.

The Acting Speaker (Mr. Ethier): Order, please. Other hon. members are seeking the floor, perhaps for the purpose of asking a question. However, I must remind the House that the time allotted to the hon. member has expired. Of course, anything can be done with unanimous consent. Is there unanimous consent?

Some hon. Members: No.

The Acting Speaker (Mr. Ethier): There is not unanimous consent.

Mr. Kilgour: Mr. Speaker, I was not rising to say “no”. If someone wishes to ask a question, I would be happy to have the hon. member do that.

The Acting Speaker (Mr. Ethier): In that case, does the hon. member for Yorkton-Melville (Mr. Nystrom) seek the floor for the purpose of asking a question? Order, please. Permission has been granted. The hon. member for Yorkton­ Melville is seeking the floor to ask a question of the hon. Minister of State. Is that agreed?

Some hon. Members: Agreed.

Mr. Nystrom: Mr. Speaker, I want to commend the Minister of State (Mr. Joyal) for saying that, in principle, he supports some kind of arrangement concerning compensation. I think that he has made a very important statement. Because of the importance of the issue, I wonder whether he might consider using what the government has done in Section 23 and in Section 59 as a precedent. In other words, we are putting Section 23, concerning the language of education, in the Constitution, and we are giving Quebec the right to opt in once it passes through the National Assembly.

I wonder, because of the importance of the issue, whether the minister would consider doing the same thing concerning fair and reasonable compensation; that is, that the federal Parliament include a passage in the resolution on compensation under Section 38(1)(a) of the amending formula that has the support of the House of Commons and the Senate. In other words, it would be our half of the amending formula. There­ fore, when one would go to stage two of the constitutional conference, the House of Commons and the Senate would already have said yes to some arrangement on compensation which would then not force anything on the other provinces and would not open the accord. This would clearly say to the other provinces that we in this House have agreed with some principle of compensation, that we have already passed it, it is there and concrete, and it has gone through the British Parliament at Westminster. I wonder whether the minister would consider that we are at least half way on this very important issue, since he agrees to it in principle.

[Page 13504]

Mr. Joyal: I would like to thank the hon. member for his question. I think one aspect of his suggestion could be adopted. However, as I have already replied to the hon. member for Provencher and the hon. Leader of the New Democratic Party, I think that those aspects can be debated. At least, it would meet with the agreement of the premiers of the provinces who signed the accord on November 5.

I think the hon. member will recognize that if we consider changing anything at this stage, it will create a pressure. In the context of the good faith which we must keep and the statement made by Premier Bennett, at this stage we should continue to discuss the amendments and subamendments, attempting to find out all the implications of their adoption, but we should keep things as they are now. In this House there have been unanimous amendments to the resolution as it affects the issues of aboriginal rights and women’s rights. I think that we are satisfied with the resolution at this stage concerning compensation, education and cultural matters. I think that all Canadians, especially Quebecers, understand that there is the possibility of further discussions. However, I think that changing anything concerning the objectives we have already reached would really jeopardize further progress at the next constitutional conference.

Mr. Broadbent: A point of order, Mr. Speaker. I think there is agreement, through informal consultation, for me to ask one more question if the minister will agree to answer it. I just wanted to have it clearly understood-

Mr. Chretien: It is not a question.

The Acting Speaker (Mr. Ethier): Again, that will have to be done with unanimous consent because the minister has used up all the time allotted to him.

Some hon. Members: Agreed.

Mr. Broadbent: Mr. Speaker, I have a question for the minister, to make the matter perfectly clear. He is saying that the government is prepared to look to at least two options and conceivably others. One is the general opting out formula which has been proposed by the Conservative Party, and the other is the proposal we have made today concerning the possibility of an opting out formula which would recognize the unique place of the province of Quebec in confederation. Is that the clear understanding that the minister attempted to convey?

Mr. Joyal: Mr. Speaker, I think that any kind of suggestion which could be made in the House in relation to general compensation is something which would be helpful at one stage or the other in order to attempt to arrive at some kind of a conclusion to those proposals. I am quite sure that the proposal, the subamendment put forward by the hon. member for Oshawa, is a valid one. However, it is necessary to study and debate its ramifications, as well as the one put forward by the hon. member for Provencher. What I want very clearly to state is that the government is not opposed to the principle of compensation because compensations are already entrenched in the present resolution.

However, the principle of full compensation is another matter. It concerns matters which encompass all of the juris­ diction involving Sections 91 and 92 of the British North America Act. It then raises many questions, as hon. members know very well. Therefore, on that ground I would think that further debate could take place.

Mr. Nielsen: You let him off the hook, Ed.

Mr. Broadbent: I wanted to put him on it.

Mr. David Kilgour (Edmonton-Strathcona): Mr. Speaker, I am delighted to rise to speak in favour of our party’s amendment. The case has already been made by the hon. member for Provencher (Mr. Epp), and I do not intend to repeat it. I would ask the minister if he would not be prepared to concede that the matter is so important to the people of Quebec that it is reopening the matter with the premiers. If a telex can be sent on Friday, surely we could send another telex to the respective premiers today asking them whether they would consider reopening this matter, which we all agree is important, in order that the people of the minister’s province might feel more sympathetic toward this proposal. I remind the minister, as he is aware, that a recent poll showed that something like 27 per cent of francophone Quebecers feel that the accord is a “bonne chose”, which I think is a distressingly low figure.

The hon. member for Oshawa (Mr. Broadbent) has moved that compensation should be allowed only to the province of Quebec. I would ask why, if it is sound for one province, it is not sound for the others. Is it that the Leader of the New Democratic Party strongly attacked our proposal last week without thinking? Is it because those in his caucus who are more sensitive to Quebec have persuaded him that the matter is so important in la vieille province that he should make further concessions on the matter? I would hope that the hon. member for Oshawa and his party would vote for the amendment as well.

During the next few moments I would like to tell hon. members why I will vote for the resolution. There are many reasons, and I will discuss some of them. I will also discuss why this resolution causes me, as someone who thinks national unity is the most important factor in updating our Constitution and federal institutions, immense concern.

First I will discuss why seemingly my constituents want me to vote for this resolution. The caucus and the leader of this party have taken a very active role in getting the resolution to where it is now. We attempted to mobilize public opinion against the original package of the Prime Minister (Mr. Trudeau) because of its substance and its unilateralism. We struggled for a full and a fair debate of the proposal in this House. We fought for a full, open public hearing before television so that many Canadians could be heard and many more Canadians could see the process. We were adamant that

[Page 13505]

the Supreme Court of Canada decide if the question was legal and constitutional before it was sent off to London. We dragged the government-I do not think it is incorrect to say wheezing and groaning-into doing so. After the decision, in which a majority of the Supreme Court judges said that the matter was legal but unconstitutional, we fought hard to have a meeting of first ministers for further negotiations.

Since the ten-party Accord of November 5, we have, with others in this House, fought to get aboriginal title and equal status for both the sexes put back into our Charter of Rights and Freedoms. Our successes, in whole or in part, have in effect made us a full party to this document. In a sense, whether it is for better or for worse, we are married to it.

In my view, it has in a very real sense been my party’s finest hour. How can we now vote against it because of various imperfections? There is much in the resolution which any Member of Parliament of good will would want to support. Patriation of our Constitution is probably not 54 years but 114 years overdue. If only our Fathers of Confederation had produced an acceptable to all amending formula in 1867, we would not have the deadlock over the amending formula which has not allowed us to patriate the Constitution for all these decades.

Umbilical cords for nations as well as for babies are best cut at birth. But then, hindsight is always 20/20, and we have much to thank these early statesmen for, most of all for the creation of the most fortunate nation on earth.

The concept of an entrenched Charter of Rights and Freedoms enjoys wide support in all parts of Canada, certainly among the majority of my constituents, according to a poll that I conducted. However, as a lawyer and as someone who hangs John Diefenbaker’s Bill of Rights in his office, I have, like many others, been saddened by the way that our courts have judicially extracted most of the vitality of that Bill of Rights on the premise that it is just another federal statute applicable only in the federal spirit. To my knowledge, it has been applied to override part of another measure only in the Drybones case in 20 years. Paradoxically, the courts will no longer be able to ignore an entrenched Charter of Rights and Freedoms because the Charter of Rights and Freedoms in the most basic sense stands above the courts, albeit subject to their interpretation.

Which member of Parliament wants to vote against entrenching such things as freedom of religion and peaceful assembly? Which one of us is opposed to mobility rights for our fellow citizens? Our respective constituents surely favour legal rights, including the right to life and liberty, protection from unreasonable search and seizure, arbitrary detention, the right to reasonable bail and a host of other matters. The same, of course, applies to equality rights, the barring of discrimination based on race, colour and religion, etc.

[Translation]

As a member of the Joint Committee on Official Languages, I fully agree, of course, with the clauses of the bill which will grant equal rights to both official languages as far as their use in parliamentary institutions and the Government of Canada is concerned. In that respect, I congratulate the people and government of New Brunswick for having voluntarily accepted both official languages in the institutions of New Brunswick. I also congratulate the premiers of the nine provinces for their good faith in providing rights for education in the minority language.

[English]

I salute the nine premiers and the Prime Minister for accepting our amendment on the equality of the two sexes for constitutional purposes and for entrenching existing aboriginal rights.

Obviously some members of both groups are unhappy about the extent of these amendments but some progress has been made in this House unanimously.

On the good side of the resolution as well, the new amending formula of the November 5 accord removes one of the abhor­ rent features of the earlier Liberal-NDP formula which would have weighted the votes of Canadians for constitutional referenda on the basis of provinces of residence. First-class Canadians would be residents of the two central provinces. All other Canadians would have been second class.

Mr. Nielsen: Some third class.

Mr. Kilgour: I am told that there are some third-class citizens in the territories.

The new formula is light years better than the earlier one. This party tried to amend the formula to give the Northwest Territories a fighting chance for provincehood in the future. We regret that the Liberals lacked the courage to support us in that proposal.

Time is passing by very quickly so I will briefly sketch some of my profound concerns with this resolution. First, the mobility rights of the resolution, as I read it, bar affirmative action programs for socially or economically disadvantaged people if they live in high employment provinces. If that is so, how can any member in this House from a high employment province look any handicapped, disabled or other socially disadvantaged constituent in the eye if we vote for that, especially in the International Year of the Disabled?

Second, another part of the proposal would bar any evidence in criminal trials if it would “bring the administration of justice into disrepute”. Along with the Canadian Police Association and the Canadian Association of Crown Counsel, I worry that this, well intended as it is, will in due time lead to the adoption in Canada of the U.S. tainted evidence rule. This has contributed in no small way to what the U.S. Chief Justice Burger has recently called the “reign of terror” in American cities. Obviously I am not saying that our crime rate will jump about six times to that of the United States the minute we pass this resolution, but what I am concerned about is that if our experience here begins to imitate theirs as a result of this measure—and I accept the fact that it was my party which introduced that amendment and I regret it did—the guilt or innocence of some people in criminal trials may become an

[Page 13506]

almost irrelevant factor. There have been simply too many bizarre acquittals in the United States under the tainted evidence rule to think otherwise.

Third, I find there are provisions in the charter which could result in the abortion section, Section 251 of the Criminal Code, being struck down as being unconstitutional. That would mean abortion on demand. Unlike the Prime Minister, who indicated last week that if that happens this Parliament would simply re-enact Section 251, I fear that a majority of Liberals opposite lack the political will to bring such a measure back into this House.

Fourth, and perhaps the most important, I am concerned about the absence of one member of the Canadian family in this Accord and, coupled with the concerns that have been voiced by the Premier of Quebec and the leader of the opposition there, I am concerned this absence could create unity problems for the country in the future.

I mentioned at the outset the fact that only 27 per cent of francophone Quebecers seem to think this matter is “a good thing” disturbs me profoundly, as I think it must disturb any Canadian. Does this resolution really respect the duality which the Pepin-Robarts Task Force on National Unity said was essential for the country to remain together in the future? Some say it does but, if so, why does Mr. Claude Ryan seem only a little less concerned than Premier Levesque about imposing a version of the Canada clause on Quebec unilaterally, and that in an area that is of utmost concern and sensitivity to the Quebecer historically?

From the standpoint of the anglophone Quebecers, more­ over, if the “where the numbers warrant” test is imposed on Quebec, how many English schools will close under that test? The minister of education has indicated it will be up to one third. Others including one of the members opposite, have pointed out that under the wording of the proposal now, if an anglophone sends his children to a French school in Quebec, his grandchildren will lose the right to attend English-language schools. That is a fine price to pay for trying to learn the majority language of one’s province.

[Translation)

On the other hand, the Liberal members from Quebec-this is quite ironic-do not seem to be willing to guarantee the rights of francophones in the Charter which they helped to draw up. Any Canadian versed in the history of Canada knows that at its origin the country was born under the agreement of both founding groups sharing equal basic rights. When we deny or forget that historic fact, the entire country is in jeopardy. As one of the ministers opposite said!

Quebec cannot exist without Canada, Canada cannot exist without Quebec.

To send to London a resolution which would not show that Canadian duality would violate the confederative agreement of 1867. This is the reason why we moved that amendment and I strongly hope that we will introduce another one tomorrow dealing with section 23.

And finally, Mr. Speaker, on behalf of a country born out of an arrangement and some good will, for the sake of Sir Wilfrid Laurier, George Etienne Cartier, Louis St-Laurent and several others, I ask the Liberal members to support the amendment now under consideration and also the amendment to be moved tomorrow which will not impose unilaterally Section 23 on Quebec but will give it the right to opt out. It is useless, Mr. Speaker, to dodge, to shut our eyes and accept a promise of renewal which forgets an essential part of our national life.

[English]

Hon. Mark MacGuigan (Secretary of State for External Affairs): Mr. Speaker, more than one hundred years ago we Canadians set out on a great undertaking. At first hesitatingly, subsequently hopefully, we Canadians began the process of binding a continent together to create a country. Now we are about to complete the work of 1867.

In this, the last week of our new constitutional debate in Canada, our emotions are a mixture of satisfaction at what we have attained in the amended resolution before us and of regret at what we have not been able to accomplish.

It would be easy for those of us on this side to give way entirely to sentiments of disappointment. We have had to accept an amending formula which we regard as seriously flawed. Yet it must surely be clear by now that we place a much higher priority on the attainment of a Charter of Rights and Freedoms than we do on any amending formula, whatever its merit. In fact, it was this very difference in priorities that enabled us to reach agreement with the dissenting seven. Like the seven, we protected our highest value in the settlement; unlike them, we assigned first place to the rights of Canadians. We fought, not for power for ourselves, but for the people. And we won.

[Translation]

However, even in the Canadian Charter of Rights and Freedoms we have been unable to protect the Canadian people as much as we should have liked. Full protection will be possible only if and when a future Quebec government, deter­ mined to fight for rather than against Canada, agrees to the provisions on education. In addition, it will be possible only if also the other provinces do not override periodically the rights guaranteed in the Charter. Total protection depends on the continued good will of provincial governments and the continuing vigilance of Canadians.

[English]

But complete actualization of potential protections may not be needed at every moment of constitutional life. Professor Walter Tarnopolsky, perhaps the country’s leading civil liber­ ties specialist and the director of the new Institute of Human Rights at the University of Ottawa, developed the notion of the override in the Canadian Bar Review in 1975. He said:

I believe a notwithstanding clause … may be the only restraint we need place on the legislature…One must be realistic and understand that the most one can expect from a written bill of rights and judicial review is control of administrative and police action…Whether the courts do hold legislative or administrative action inoperative or invalid, is not always as important as the fact that they

[Page 13507]

can do so, and as the fact that in rendering their decisions they can amplify the terse terms of the Bill of Rights and infuse them with principles to which society aspires and will compel, even indirectly, the public servants to adhere to. Even in the United States, the Supreme Court has invalidated very few Acts of Congress, but its judgments are guidance of what will be tolerated.

If Professor Tarnopolsky is right in estimating that it is not acts of Parliament or of the legislatures that will from time to time need to be declared invalid, but rather administrative actions under their authority, then perhaps the people have not lost very much through the introduction of the legislative override mechanism. In any event, they can bring into play all their skills in political lobbying. Even if worst comes to worst and an infringing law is enacted, it has a maximum life of five years, thus allowing special interest groups further opportunities of defeating it at five-year intervals.

Our satisfaction on this side is increased by the knowledge that the achievement is owing to our own efforts. It was the principled idealism and the stubborn determination of this Prime Minister (Mr. Trudeau), this government, this caucus and this party that brought about the accord. Can anyone doubt that, without this contribution, there would have been no initiative, no momentum, no result? We would have been at the beginning rather than at the culmination.

[Translation]

That conclusion is most obvious when one compares the almost totally negative attitude of the dissident provinces at the federal-provincial conference of September, 1980, and their new determination to achieve an agreement in October, 1981. For our part, we were willing to find a compromise at the very first conference. Indeed that was why we called the conference. However at that time there was complete intransigence on the part of the dissenting eight. It was only 13 months later, after a continuing display of unflagging determination to carry the project to completion on our part, that an accord became possible, when they realized that they could in no way better its progress. Our strength achieved what weak­ ness could never have won.

[English]

And now, the constitutional resolution goes from here to the Parliament of the United Kingdom for final disposition. I have said publicly many times that the British government would use every possible means to put our resolution through their Parliament, not because they had committed themselves to do so—although they had—but because it was their obligation to do it under the rules of the Commonwealth and of internation­ al law. Those who compared the constitutional convention to consult which the Supreme Court of Canada found to exist within Canada with the constitutional convention under which the United Kingdom was obliged to enact constitutional amendments requested by the Parliament of Canada through joint address failed to grasp the elementary distinction be­ tween non-law and law. The Supreme Court of Canada found that the constitutional convention of consultation within Canada was not legally binding, whatever else it might be. The constitutional convention of the United Kingdom, however, is legally binding because it is a requirement of Commonwealth and international law.

First, with respect to the Commonwealth, let us note the principles laid down at the Imperial Conferences of 1926 and 1930 and enshrined in the Statute of Westminster. These principles are simple. All states and parliaments voluntarily associated within the Commonwealth are fully equal in status and in no way subordinate to one another. They relate to one another as equals and address one another as equals, sovereign state to sovereign state and sovereign parliament to sovereign parliament. As such, they may not interfere in one another’s internal or external affairs.

By constitutional convention, however, the Parliament of the United Kingdom enacts amendments to the Canadian Constitution as requested by the Parliament of Canada. In this respect, the Parliament of the United Kingdom stands in the same relationship to the Parliament of Canada as the Queen to her ministers. The Queen, of course, never exercises her powers without the advice of her ministers, nor refuses to exercise her powers when her ministers advise her to exercise them.

So it is with Westminster’s power of amendment of the British North America Act. This power remains vested in the United Kingdom Parliament under the Statute of Westminster. It must be exercised upon request and as requested. That is the relationship to which Canada consented in 1931. That is the duty which Britain then accepted.

As early as 1937, in his classical work on “The Law and the Commonwealth”, R. T. E. Latham wrote that “…Commonwealth conventions may prove to be or to have become indistinguishable from rules of municipal or international law”. The tentative conclusion of 1937 has become the reality of today. Sovereignty, equality and non-interference are cardinal principles of international law. These principles apply between Commonwealth states. They clearly require the Parliament of the United Kingdom to act only in accordance with the wishes of the Parliament of Canada in the amendment of the British North America Act.

In international law, the same result is a fortiori. There is no question that Canada is a fully sovereign and independent state, nor that the federal government alone is competent to speak for Canada in all matters concerning foreign relations and to enter into treaties on behalf of Canada. Both under the British North America Act and the Law of Nations, the provinces of Canada have no status beyond the boundaries of Canada. This has been unchallenged constitutional law since the Labour Conventions case in 1937 and is embodied in the Department of External Affairs Act.

It follows from the sovereign status of states in international law that other states owe them a duty of non-intervention in their internal or external affairs. This duty of non-intervention is a master principle of international law. Deviations from sovereignty as established by international law can occur only by treaty, and the central nature of treaty law is the double criterion of consent and symmetry. If, as the Kershaw report

[Page 13508]

claims, the relationship between the two countries is of a quasi-treaty character, it would have to be brought about by the expressed and unequivocal consent of Canadian federal authorities, who alone have competence in the matter, and matched symmetrically by consent of the United Kingdom through its government or Parliament.

There is, of course, nothing in international law, in Commonwealth custom, in the records of the Imperial Conferences, in the Statute of Westminster nor in any expressed or implied treaty relationship to support the contention that Canada has gained anything but full independence, or has left Britain with a residual responsibility that would go to the very heart of our internal affairs. Canada has never consented to any such derogation from our responsibility and Britain has never claimed it. British governments and British parliamentarians, on the contrary, have affirmed for many years and at the highest level that Westminster is duty bound to act in accordance with the request of the Canadian Parliament in matters of constitutional amendment.

There might be something disquieting in this, despite the legalities, if we were asking Westminster to make our decisions for us. But, of course, we are not doing that. The joint address will ask the United Kingdom Parliament to implement the decision, not to make one. The political responsibility is ours, and ours alone. Only the legal form has to be fulfilled in Britain.

The attainment of full Canadian constitutional independence, when the final legal steps are taken in the United Kingdom, will perhaps mark a slight advance in our international recognition, a fuller legal expression of the sovereignty we have so often demonstrated in international deliberation and action. But I believe its consequences within Canada, on the other hand, will be enormous.

Not only have we added to our institutions a Charter of Rights and Freedoms along with a mechanism for future amendments to our Constitution, but what is to my mind even more important is that we have added to our self-awareness. What we are now saying to ourselves, in a form of sacred writ–our Constitution-is that we are bilingual country, a multicultural country, a democratic country, a country where God-given human rights take precedence over the man-made structures of the state. These are fundamental truths which are important for us to realize and express to ourselves and to the world. The act of formalizing them sets us on the road to fulfilling them. This is what I meant when I said at the beginning that we are about to complete the work of 1867.

Canadians are not, as a rule, a demonstrative people. But at our innermost heart I believe there lies a great love for this country we share together, a deep pride in what we have made of this part of the new world, and an unshakable determination to preserve our free and sovereign union.

Canadians have manifested this in many ways during this year-long debate; in their answers to pollsters of their strong support for the charter; in their attempts, in groups and as individuals, to improve the charter; in the groups of women, for instance, who brought powerful premiers to their knees; and ultimately even in their impatience to see the process brought successfully to an end. In a real sense the charter is theirs. They wanted it, they amended it, and now they will have it to protect them. In the words of our national anthem:

[Translation]

It will protect our homes and our rights.

[English]

This is the legacy of the last year, the legacy of a great country where the francophone minority can now feel at home everywhere, where the new peoples from beyond the seas can see their cultures free to survive, and where all can find something new and richer in being Canadian. It is a legacy we are proud to leave to the future.

PROCEEDINGS ON ADJOURNMENT MOTION

[English]

SUBJECT MATTER OF QUESTIONS TO BE DEBATED

The Acting Speaker (Mr. Ethier): Order, please. It is my duty, pursuant to Standing Order 40, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Central Nova (Mr. MacKay)—Administration of Justice—Review of mandatory supervision policy. (b) Operation of system; the hon. member for Vancouver Centre (Miss Carney)—The Budget—Impact on construction of rental housing. (b) Request that provisions be amended. (c) Announcement of study results; the hon. member for Ottawa-Vanier (Mr. Gauthier)—the Constitution-Francophones outside Quebec—Protection of rights.

GOVERNMENT ORDERS

[English]

THE CONSTITUTION

RESOLUTION RESPECTING CONSTITUTION ACT, 1981

The House resumed consideration of the amended motion of Mr. Chretien respecting the Constitution of Canada, the amendment thereto of Mr. Epp (p. 13492) and the subamendment of Mr. Broadbent (p. 13497).

Mr. Gordon Towers (Red Deer): Mr. Speaker, this is the first time I have prevailed upon the House to have an opportunity to make some comments on behalf of the many people I represent, in conjunction with some of my own thoughts. First I would like to give a great deal of credit to the hon. member

[Page 13509]

for Provencher (Mr. Epp) of our party for the work he has done on this Constitution. He has done an excellent job and has served us well.

It is indeed unfortunate that the ongoing debate on the Constitution has produced such acrimonious feelings and sentiments across Canada between provinces, between the provinces and the federal government and between groups and individuals. It has pitted region against region of our fair land. I regret that the Prime Minister (Mr. Trudeau) has pressed with undue haste to put together what I consider a slap-dash resolution which, to me, is second-rate. The time frame being forced on us in Parliament allows little time for sober second thought.

A murky constitutional resolution was further clouded by a fuzzy Supreme Court ruling. Certain questions have to be asked. When does something which has become a convention become legal? At what point in time does the common law of convention pass over into the brass-bound arena of legality? Is it possible that a measure could be accepted through convention and at the same time be illegal? Is it possible for a measure to be legal and at the same time unconventional?

I do not think the Supreme Court did the nation any favours with its vague ruling, but it did sit the Prime Minister down. It gave him a slap in the face and allowed the premiers of the provinces to be heard. It gave them some breathing room.

What of Quebec’s claim that it still has a veto power? ls there validity to that argument? The Minister of Justice (Mr. Chretien) says no, and he and the Premier of Quebec engage in a contest of personal name-calling. There are too many “ifs” and too many grey areas for the government to ask Parliament to rush its judgment.

The good is often the enemy of the best. The constitutional resolution might be good for some, but for others it is not just that good, and for some it is just plain bad. That is not the Canadian way. I am not happy with any measure which allows for special status for any provinces or any segment of our society. The Constitution shou)d be the single most important document in our statutes. If there is an urgent and pressing need for a Constitution or a debate on a Constitution at this time, I must question whether there are not more pressing items on the stove with which Parliament should be dealing. The Constitution should be placed on the back burner until more important economic matters have been dealt with and resolved.

As a nation we have been in business for 114 years. We have managed to survive that long without any written, formal Constitution. For the past 55 years the federal government and the provinces have held periodic talks on the matter of patriation and an amending formula. While nothing tangible happened, none can deny that some progress was made, slowly but surely, like a glacier moving across the landscape.

Canada has been moving toward full nationhood-a free and independent nation. Most of our external symbols of nationhood are in place. Canadians were given a distinctive Canadian flag and, I might add, not without some bitterness and resentment. Some still refer to it as the Liberal rag. It is unfortunate, but it is true. The Liberals brought this upon themselves by their approach to the issue. It just did not need to be that way. It was very much mishandled.

In 1945 the House of Commons voted, 182 to 2, in favour of having a distinctive flag. In 1946 the Red Ensign was put forward as a substitute for the Union Jack until a new flag was approved, and this happened about 20 years later. “O Cana­ da” was adopted as our official national anthem. This too was a slow process.

It has been alleged that a nation which does not have its own constitution, its own autonomous institutions and its own national flag is not free. In 1955 the then minister of justice, Mr. Garson, described the present situation when the question of a bill of rights was debated in the House of Commons. He said:

We are in a position in which we have to secure from the Parliament of the United Kingdom amendments to our Constitution with respect to all of these matters of joint concern to Canada and the provinces.

This state of constitutional subordination was relished more by Canadian politicians than by the British Parliament. It was, and is, a convenient protection against embarrassing demands for constitutional reform. None in this House will disagree that it is time to end the procedure whereby amendments to the Canadian Constitution, the British North America Act, must be referred for approval to the British Parliament. That is one giant step toward full Canadian nationhood. Nobody argues about that, but when we reach this stage, we must then proceed with caution. We must make haste slowly.

It is inconceivable that Canadians should be expected to accept a full grown and full blown Canadian Constitution overnight. Constitutions are not made; they grow. They grow through years—nay, centuries—of customs and usage through convention and practices.

The United Kingdom has no formal, written constitution; it has survived for almost a thousand years without one. Yet if one were to ask a Briton if he or she had a constitution, the answer would be yes. He or she would point to the Magna Carta, habeas corpus and a galaxy of other statutes and safeguards etched in law, custom and usage.

If we had had a constitution during the so-called October crisis, I wonder whether Canadians would have been any better off. Would their civil rights have been better protected and guaranteed had a formal document been in place? I think not.

There are large numbers of our people who are very concerned about the direction in which we in Canada are going. My colleague for Edmonton Strathcona (Mr. Kilgour) mentioned the trend toward the Americanization of Canadian law. I want to read part of a letter from concerned Canadians. Incidentally, this letter is signed by seven ex-RCMP personnel and a retired B.C. provincial court judge. I would like to put it on the record. I quote:

[Page 13510]

With the federal government announcement that national security is being removed as a responsibility of the RCMP, Canada is another step closer to becoming the Afghanistan of North America. And if the Prime Minister of Canada is sleeping peacefully these nights, Canadians are not. Canadians are aware that their freedom is being eroded by Ottawa mandates, legislation and political convictions. They are also aware that such convictions are not necessarily the convictions of the up-until-now “silent” majority. Canadians have always taken pride in the knowledge that their personal rights, social and political liberties were being maintained and protected by one of the world’s finest body of men engaged in police work.

Today, that pride is being systematically destroyed. First, the Kent Commission tabled its recommendations to control the media. Then, the McDonald Commission brought forward a report obviously designed to embarrass, humiliate, and bring to an end, the effectiveness of the Royal Canadian Mounted Police Security Force.

Control the media, control the security-and you control the country. Simple as that.

I bring this to the attention of hon. members because Canadians are very concerned as to what is happening to their security. I am sure that all members received a brief on the Canadian Constitution from the Canadian Police Association. I quote:

The Canadian Police Association wants it clearly understood that we are not opposed to Canada having its own Constitution, whether by patriation or otherwise, or to a Charter of Rights and Freedoms with such fundamental legal principles as can be capsulized in constitutional language, as long as Parliament and the legislature can at least share with the courts the function of evolving Canada’s criminal law and procedure in future years.

We do, however, strongly object to the dangerous wording of the Charter of Rights and Freedoms as presently proposed which, in our opinion, would dramatically affect our criminal justice system and abdicate Parliament’s authority and responsibility as the primary guardian of the rights of Canadian citizens.

In supporting the position taken by the Canadian Association of Chiefs of Police and the Canadian Association of Crown Counsels, the Canadian Police Association, on behalf of over 50,00Q members, hereby expresses its grave concern regarding certain provisions of the Canadian Charter of Rights and Freedoms which forms a part of the proposed Canadian Constitution and relate directly to legal and/or law enforcement issues—

The wording now before Parliament invites the courts in Canada to adopt the United States exclusionary rule, which has never been the law of Canada, England or the rest of the Commonwealth.

Let me impress that there has never been as good a force in the world as the British rule of law and British justice. The quote continues:

The rationale of the United States approach is that courts can supervise and discipline police by the after-the-fact sanction of excluding evidence and thereby protect the civil liberties of individuals. The Anglo-Canadian experience is that the function of the courts is to search for truth by having all relevant evidence and the best way to supervise and discipline police and thereby protect the civil liberties of Canadians is by before-the-fact direction to police and by subsequent prosecution and/or disciplinary hearings for police to act illegally or improperly.

I feel the Liberal government has let the RCMP down very badly because of its mishandling of the police under the McDonald commission inquiry. We live in an imperfect society. We are being asked to sanction an imperfect document. Stephen Leacock once wrote that the only place one is likely to find perfection is in a socialist commonwealth of angels. He is probably right.

I cannot accept an imperfect resolution which is bound to create more problems and more division than it will solve. There will be court case after court case. It will be a gold mine for lawyers. It will create a tremendous workload for the courts. Many of the issues will be taken out of Parliament and placed in the courtroom.

The litany of imperfections is lengthy. Any one is reason enough to oppose this measure. Taken together, the sum total of evidence against it is overwhelming. I cannot in conscience support this measure in its present form. I cannot in conscience abstain from voting against it. I must in conscience speak out against what I believe is wrong and imperfect. Somerset Maugham once wrote:

Conscience is the guardian in the individual of the rules which the community has evolved for its own preservation.

One thing for sure, I have not had to wrestle my conscience to the ground. I have been guided by the advice of scores of constituents who have contacted me. Their advice and support have confirmed my own findings, strengthened my resolve and spurred on my conviction.

Regrettably, language and institutionalized bilingualism has been a divisive factor on the road to nationhood. Almost 30 years ago Mason Wade wrote:

Destiny, not of character, but of fate, has made the French-Canadians a tragic people in the highest sense of the word. So long as they continue to speak the French language-the most precise, vivid and rapid language in western civilization-they may be our partners and we theirs, but we can never be a single people.

Does this mean we must despair of making Canada a truly united country? Not at all. We must first recognize that we have a great deal in common and that we have made enormous progress toward mutual understanding. The good will that existed before the present tenure of the Prime Minister was much superior to that which exists today. The hatreds of former times were almost dead and they must not be revived.

Several of the causes of friction which have been at the bottom of the crises of the past must not be allowed to reappear. One may say, moreover, that to the degree that Canadians become more Canadian, are more proud of their country, admit no other allegiance than they owe to their country, they are becoming more tolerant and more open to mutual understanding. This mounting pride seeks expression.

I cannot see a Canada where there is not equality applied equally in all of the ten provinces. I cannot see a Canada where there is one set of rules for nine of the provinces and another set for the tenth province. I cannot envisage a Canada where a person is excluded from promotion or advancement because of his or her mother tongue.

I cannot tolerate a federal public service, police force or Department of National Defence where language becomes paramount over merit. The merit principle has served our country well and it will continue in the future if given an opportunity.

I believe that the journey towards a bilingual country should be a voluntary walk, not a forced march. At the present time I want to bring to the attention of this House a problem that exists for English-speaking people in the province of Quebec. I want to quote from two articles in the November 27 Montreal Gazette. I quote:

[Page 13511]

Buoyed by the success of native and women’s groups in getting their rights restored to the constitutional package Quebec’s Protestant school boards have begun pressing Parliament to guarantee English education in this province.

Telegrams have been fired off to Prime Minister Pierre Trudeau and Justice Minister Jean Chretien…

The constitutional proposals now being debated by Parliament guarantees schools where numbers warrant to francophones outside Quebec with eligibility simply defined as those whose mother tongue is French, or those whose parents were educated in French anywhere in Canada.

However, another clause-the one the boards want repealed-says a similar guarantee of English schooling based on mother tongue will not apply in Quebec unless the Quebec government agrees to it. If Quebec does not agree, the so-called Canada clause, guaranteeing English schooling for children whose parents were educated in English anywhere in Canada, would be imposed on this province. That’s not good enough for the school boards.

“The fear about the Canada clause is that it will be detrimental to pupils whose mother tongue is English but whose parents in good faith and in the spirit of co-operation have sent their children to French schools or French immersion courses,” said Paterson.

“The Canada clause could have a detrimental effect on those pupils’ chance to later send their own children to English schools.”

Thousands of children, Mr. Speaker, are apparently caught in this situation. There is no protection for them in the constitution, and certainly there is no provision for the jurisdiction of the courts.

I should like to quote Ian MacDonald on the same issue. He says:

A lot of people may be wondering what the Constitution actually says in this famous “Canada clause” they’ve been hearing so much about…

“Citizens of Canada who have received their primary school instruction in Canada in English or French and reside in the province where the language in which they received that instruction is the language of the English or French linguistic minority of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.”…

It means that if you were educated in Canada in French or English, you have the right to send your kids to school in that language. In practice, the Canada clause will apply mainly in Quebec, overriding Article 73 of the Charter of the French Language, Bill 101, which limits access to English schools to “a child whose father or mother received his or her elementary instruction in English in Quebec.”

In the rest of the country the Canada clause will also apply, but the more important criterion for minority language education rights is a simple question of “first language learned and still understood.”

That is Section 23(1), Mr. Speaker. I would like to quote it for the record at this time. It reads:

23. (I) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

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

Mr. MacDonald’s column went on to read:

That is Section 23(1)(a) of the federal resolution, otherwise known as the “mother tongue clause.” The feds finally decided to go with two standards for two different reasons.

First, they could not apply only the Canada clause in other provinces, since there were no French schools in some of them at the time when many francophone parents were going to school.

Therefore, if it could not be demonstrated that the parents had themselves attended primary school in French, they could hardly claim the right for their children. A big technical hitch: ergo, no Canada clause in the rest of Canada. The mother tongue clause would do the trick.

But not in Quebec. An English mother tongue clause in this province would mean that naturalized Canadians of English-speaking origin would have access to English schools. In effect, this means New Canadians from Commonwealth countries, like India, Pakistan and Zimbabwe. Political dynamite.

No Canadian should be denied equality of opportunity because he is unilingual in either of the official languages. If there is to be equality, there must be true equality, Mr. Speaker. We cannot have bilingualism and Bill JOI side by side in this country. There is no room for restrictive covenants which discriminate against segments of our population.

To me, a Charter of Rights and Freedoms is window-dressing. It is something for the Prime Minister to run up on a flag pole as a retirement legacy. I am suspicious of any charter, especially of one proposed by the Prime Minister, this man who trampled on the basic rights of so many Canadians during the October crisis, a time of an alleged apprehended insurrection. Mr. Speaker, does this not ring a bell?

On too many occasions in this country the liberties of individuals and groups have been cast aside for the alleged common good. The treatment of the Japanese during World War II is a scar we will shamefully carry forever. The treatment of Jehovah’s Witnesses in Quebec is a blight on religious freedom and liberty. The War Measures Act was an insult to liberty and an affront to justice. All this was done by a man who now brings in a Charter of Rights and Freedoms. Can he be trusted? Has he repented? The spirit of John Diefenbaker cries out, “This is a greater conversion than the one on the road to Damascus”.

There is no reference in the proposed Charter of Rights and Freedoms to the right to own property. I recognize, Mr. Speaker, that this is under provincial jurisdiction and that we are fairly safe in the Province of Alberta. In fact, I know we are safe there. But what about the Province of Saskatchewan, that socialist province where the government is taking over control of more and more land, land upon which food is produced? It does not bother me so much that governments are setting up Crown corporations, but it really bothers me when the state takes over control of the land upon which we produce our food.

The Charter of Rights and Freedoms is intended to protect people from government. How can people be protected? How can people be assured and guaranteed their rights if there are no provisions for overriding legislation? Further to that, God was reluctantly paid the minimum wage by the Prime Minister in the charter.

Further to that, Mr. Speaker, what are the rights of the unborn? I happen to believe that life begins at the moment of conception. Unborn babies must be recognized as members of the human family. How many members of government could guarantee they would be here today if abortion on demand had been in effect in Canada in the last 70 years? After 55 years of slow progress on the Constitution in Canada, why must we slip up in a flurry of undue haste? Why do we not think about the

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responsibility that humanity has, which is to be prepared to accept our responsibility for the defenceless unborn child? This is one of the basic human rights and it is omitted from the charter.

I know that the Prime Minister has given his affirmation; he has made a statement on that. It is a verbal statement. I once heard a politician say that the statement was not worth the paper it was written on. That is how I feel about the Prime Minister’s statement. I ask, why the great hurry?

I recommend to hon. members that they read some of the statements which were made by members from both sides of the House during the debate on the Diefenbaker Bill of Rights in 1960.

Certain of our rights-indeed all of our most important rights-were not given to us by government. Government cannot give anything to us until it has taken something away. Many of these rights were hard fought for and hard won. They are inalienable rights. These rights have deep roots in history, in custom and usage, in convention and in common law. They were ours originally. Then, of course, every time government does something for you, you lose a part of your very being.

We are fortunate to live in a parliamentary democracy where the individual is supreme. We are fortunate because of the rich legacy of laws and statutes we have adopted from the mother countries of Great Britain and France.

On the road to nationhood, we have experienced growing pains. We have made mistakes. But when women and men of goodwill reason together, common sense, logic, compassion and understanding prevail.

No one in the House will oppose the move to patriate the British North America Act and bring it home to Canada. No one will oppose the reality of being able to amend our own laws in Canada without reference to any outside legislature or parliament.

Canadians everywhere will decry the inordinate rush to rough justice for many Canadians. Many will question the need to blindly adopt a resolution which was hastily agreed to.

If there is need for a Charter of Rights and Freedoms, I want to see it made in Canada. I do not want to see a patchwork, incomplete and unacceptable charter thrown together in Canada and enshrined in Britain.

It is time for sober, second thought. It is time for a cooling off period. It is time for the government to hear the views of those who will be affected. It is time for the government to heed the cries of those Canadians who will suffer because government moved to enshrine their rights. If we do this, Mr. Speaker, there is no reason for unravelling the accord that has been arrived at by the provinces. They have done a good job and I give them credit for that. We can patriate the Constitution, yes; we can patriate the Constitution with the amending formula, yes. It is not my intention to undo the accord in any way, shape or form by anything that I have said, but I do think the time has arrived when we as members of this House of Commons must take a second look and approach this problem with common sense.

Some hon. Members: Hear, hear!

Mr. David Smith (Parliamentary Secretary to President of the Privy Council): Mr. Speaker, like most members of the House who have had an opportunity to speak in this debate, I consider it a great honour to do so. This is a historic debate and undoubtedly is the most significant debate on the most significant matter the House has ever dealt with.

Some of the famous debates concerned the building of the CPR under Sir John A. Macdonald, the navy bill under Borden, conscription, pipeline, the flag debate-all of these have gone down in Canadian history as part of our heritage and our tradition. But this constitutional debate is the greatest of them all, and that is why it is a pleasure to have the opportunity to participate in it.

I have not had a speech ready to give at a moment’s notice, Mr. Speaker, because we were in a period of flux until recently. Earlier today when I had to decide what I would say when I spoke today, I thought I might talk about some of my feelings and about how I regard where we are at this point in the debate.

My attitude is a very positive one. I have a feeling of pride because I think the House is going to do a very good thing in two days’ time. I think it is important that we recap for a moment the elements of what we are about to do in patriating the Constitution.

Until the beginning of this year many Canadians did not know that the Constitution of Canada did not reside in Canada but was still an act of the British Parliament. Canadians now know that for a variety of reasons we have not been able to bring that Constitution home for 114 years. As the result of this debate, many Canadians are now aware that we started making a conscious effort to bring the Constitution home in 1927 under Mackenzie King. In 1931, the Statute of Westminster was passed and the other dominions, as they were then called, cut the umbilical cord, but for several reasons Canada was not able to do that.

I was surprised to hear the hon. member for Red Deer (Mr. Towers) say that he felt we must make haste slowly. If any nation has ever made haste slowly on the subject of the Constitution, it is Canada. The question of patriating the Constitution is not in contention. Just a couple of months ago people were saying, “Leave it; it has been fine for years and there is no need to worry about patriating it.” I think it is clear that the consensus in the country now supports patriating the Constitution.

We have a very good amending formula which I think is reasonable and fair, Mr. Speaker. In all honesty, it is not all that I personally had hoped for. I liked the provision for a referendum when there seemed to be no other way to get agreement. I have never been afraid of going to the people, particularly with the built-in safeguards that were in the referendum procedure which would have required a majority of the people in each of the four regions to vote in support of a constitutional amendment. We compromised on that because

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there was a real desire to reach an agreement with the provinces. That agreement was reached, and there was an accord.

I admit I am somewhat surprised not just by the attitude of the hon. member for Red Deer but by many members of the official opposition who, for months when the government was prepared to go ahead without the consent and agreement of most of the provinces, kept urging the government to try to reach an accord at all costs. Now that the accord has been reached, they are prepared to break it for a variety of amendments which they have put forward.

The NDP were at least prepared to go ahead, regardless of whether a majority of the provinces agreed. I think it is now consistent with that position for them to move amendments to the accord, but I find it difficult to understand the position of the official opposition in this regard.

Notwithstanding my remarks about the opposition and their attitude to the Accord, I think it is fair to say that when the debate on the Constitution began there was a fair bit of acrimony when the subject of the amending formula came up. I do not think that acrimony exists now. There may be some people who disagree but we do not have the dissension we once experienced in the House.

We now have a charter, Mr. Speaker, and I think it is a good charter. I have always been committed to the concept of a charter although I realize that not everyone in the House has been. Earlier today I read some of the speeches hon. members opposite made when the item first came up for debate. Many members, particularly in the Conservative Party, were opposed to the basic concept of a charter before there was even any debate on what it might contain.

We know the position of former Premier Lyon and, quite frankly, I think it hurt him in the recent provincial election although that would be difficult to measure. A lot of people do not fully understand the ramifications of the charter or the ramifications of bringing the Constitution back home.

When it comes to a question of wanting the problem solved or not wanting it solved, I think most people want it solved. When it comes to the question of helping or hindering, I think most people want to see the premiers of this country helping. To the extent that former Premier Lyon was a hindrance, I think the people of Manitoba spoke and clearly indicated their sentiments on that.

Personally, I have never been in doubt about the charter. I have to admit that I have been greatly influenced by the experience of chairing the Special Committee on the Disabled and the Handicapped which went across the country and listened to hundreds of handicapped and disabled people speak about their feelings and why they wanted a charter. Many of them said; “Don’t leave us at the mercy of the provinces. We want this charter and we want it in force right across the country.” Well, Mr. Speaker, it is in force right across the country. I know that some disabled people objected to the override clause but we strove for the best deal with the provinces, and I think that rather than the disabled people of this country being at the mercy of the provinces now, the provinces are at the mercy of the charter. The provinces cannot pass that override provision in a piece of general legislation every few years. They must put it in every act that they want it to apply to and they have to re-enact it every five years or else it automatically lapses.

The political reality of a formula such as that is that it will rarely, if ever, be used. And I do not think it is likely to be used with respect to the disabled and handicapped people of this country.

At the outset of the debate on the Constitution I know that people did not see the need for a charter. I think that mood has changed. The remarks of the hon. member for Red Deer are not typical of the feelings of most Canadians, in my view, although there are still some who feel that way.

About a week ago I spoke to a group of lawyers at a luncheon in Toronto. Afterwards there was a question and answer period and one man asked if I could tell him how his life would be any different after the charter is in place. I had to admit that his life probably would not be any different. I also tried to point out to him that he was white, he was able bodied, he was Anglo-Saxon, he was a lawyer, he had a good income—

Mrs. Appolloni: He was a man.

Mr. Smith: As the hon. member for York South (Mrs. Appolloni) has pointed out, he was a man.

I think it is fair to say that if most of us look at the many advantages we all have, that the odds on any of us having to fling ourselves at the courts and plead for the intercession which the Charter would provide for us are perhaps not that high. However, there are many people in this country who do not fall into the categories to which I have just referred. When I pointed this out to the gentleman at the luncheon, he said, “You are right. I had not really thought about it from that perspective before”. He had to admit that he had really only been thinking of himself. I think it is very important for all of us to analyze our thoughts and emotions on this subject. We should not only think about how it will affect us personally. We should think also about how it will affect many people who do fall into these disadvantaged groups.

I was disappointed when I heard the hon. member for Red Deer (Mr. Towers) say that he could not support the charter. He said that he was automatically suspicious of anything which had been proposed by the Prime Minister. Quite frankly, I am really shocked by that attitude. It would seem to me that everyone in the House ought to be sufficiently mature to be able to analyse a piece of legislation, a resolution, or whatever is before the House, and judge it on its merits and not on whose name is attached to it.

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Some hon. Members: Hear, hear!

Mr. Smith: I think, though, that we have come a long way in the House since last fall. I remember that after the first minister’s conference in September of 1980, there was a breakdown. The ten premiers, after they had eaten breakfast, went to see the Prime Minister. They had 11 demands which, quite frankly, had the Prime Minister agreed to them all, would have emasculated the ability of the federal government to run this country. It would have been virtually treasonous to have accepted those demands. The Prime Minister was prepared to accept a few but not to give away the fort and all the supplies that were in it.

If we try to analyse what happened there, and why matters broke down to the extent that they did, we will find, I think, that there were surely some personality clashes which may have contributed. But I think that the Prime Minister really put his finger on it when he spoke in the House earlier this year. He referred to the incident which happened m 1966. F r the first time, the then Premier Johnston of Quebec, in responding to a move by Prime Minister Pearson to patriate the Constitution, said, “Yes, you can have Quebec’s agreement, but we have a price tag”. What happened then was that many premiers sort of fell into the rut of saying “Yes, we will go along with it, but this is our price”. It was at that point that the Prime Minister started hammering through the message that we, as a party and as a government, were not prepared to trade off rights for fish and oil. He kept hammering away at that point and, thank goodness, it got through. I think the people of this country really agree with that point. What it really boiled down to was leadership and determination.

I can remember that during the early stages of this debate I would frequently hear, while I was travelling around the country, the word “obsession”. Some people felt it was an obsession. What are the characteristics of leadership? I think it is fair to say that had John A. Macdonald waited for universal agreement to build the CPR, it would certainly never have been built. It would have never got to Vancouver and Canada would not be in the shape it is in today. Sometimes there comes a situation where someone must break the log jam, must show determination, and must just take the bull by the horns and say, “We will do the right thing and we will press on”. That is exactly what has happened. In my view­ point, that is the final analysis of the true test of leadership and what it is all about.

In the years to come, I wonder what our recollection will be when we think of the constitutional debate of 1980 and 1981? My first recollection will be of the night we voted to set up the committee. There was a near riot here on the floor of the House. Mr. Speaker was being defied by some hon. members who, in my opinion, were acting quite disgracefully. Some of them were standing up and shaking their fists, at Mr. Speaker.

Mr. Taylor: It was closure.

Mr. Smith: It was an unfortunate thing. My sister, who has lived in California since 1949, just happened to be here. This was the only time she had ever sat in the House of Commons. It was that day.

Mr. Baker (Nepean-Carleton): I met her that night.

Mr. Smith: That is right. The hon. member for Nepean­Carleton (Mr. Baker) did meet her. He was very charmed by her because she is a lovely lady, and she was quite charmed by him. In any event, she was sitting up there in the gallery. She sat there in complete disbelief until about 2:30 in the morning when the whole thing ended.

However, it is quite fair to say that that mood and atmosphere has evaporated. It is gone. I think that when the vote is taken on Wednesday night, there will not be any recrimination, there will not be bitterness or acrimony. That mood has disappeared, and I think that fact is good cause for all of us to be very proud.

Second, when I think of what I will look back on, I will probably recall my first reaction to that night. I wondered whether we would ever be able to heal the divisiveness and whether there was any light at the end of the tunnel. I remember a speech which was given by Senator David Croll. Senator Croll talked about being on the right side of history, and how, at the time history was taking place, it was not always clear to everyone which, in fact, was the right side of history. He reminded us of the debate on citizenship in this country which took place in the 1940s. Of course, Senator Croll has been in public life since the 1920s. Thank goodness, he is still active in public life. However, he reminded us of the citizenship debate. No one has a more waspy background than I do, and I am quite proud of it. However, I am also proud to be a Canadian. I remember that at the time when we had the debate on citizenship people were saying that it was a treasonous and terrible thing to give up being British subjects for Canadian passports and Canadian citizenship. At the time, there was a really hot debate. But when one looks back on it now, it is inconceivable to think that anyone would have been against Canadian citizenship. However, they were at the time.

There was a similar situation during the flag debate. I was fortunate enough to be working here as an assistant at the time. I sat and listened to most of the flag debate from the galleries. Some of the very divisive statements made at the time might have caused one to think that perhaps we could never heal some of the divisions in the House. However, there was a right side of history at the time. Surely, one cannot be against the Canadian flag.

I believe that when we look back in years to come, there will be a right side of history on this one. I just remember how correct Senator Croll was. He said, “In years to come, you will look back and find it inconceivable that anyone could have been against bringing the Constitution home.” He was more of a prophet than some people may have thought, because I think that most people in this country are already in this mood.

The final recollection to which I might refer relates to the fact that the disabled are included in Section I 5. When the first draft came out, they were not included. I remember my first reaction to that. I do not think the fact that they were excluded was indicative of anyone being mean spirited or

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indifferent. People were simply not aware of the need for their inclusion.

Mr. Baker (Nepean-Carleton): I think you are right.

Mr. Smith: I remember speaking on it in caucus time after time, to the point where I almost felt that I was becoming a pest. One would see the odd person rolling his eyes back as if to say, “Here goes Smith again on the disabled”. However, I remember the feeling I had when the Minister of Justice stood up in caucus and announced that the disabled would be included. If I never do anything in public life again, that will have been worth it.

Mr. Baker (Nepean-Carleton): I agree.

Some hon. Members: Hear, hear!

Mr. Smith: There are some other memories. I could talk about spending some time in Great Britain. In March, I spent three weeks there talking to about 40 Members of Parliament about the Constitution, the caucuses and the arguments.

However, I see that my time is up. I would just like to say that it is all great history. All of us should be proud to have been part of this chapter of nation-building. When the curtain drops on Wednesday night and the role of this House is finally complete, I am sure we will all stand up and give a great cheer to have been part of it.

The Acting Speaker (Mr. Ethier): It being six o’clock, I do now leave the chair until eight o’clock p.m.

At 6 p.m. the House took recess.

AFTER RECESS

The House resumed at 8 p.m.

Mr. Ron Stewart (Simcoe South): Mr. Speaker, I want to say at the outset that I am in favour of patriating the British North America Act and an amending formula which is the most acceptable to all Canadian provinces and all Canadian people. I might add that have not changed my mind one iota since my constitutional speech on the first proposal.

Once again, I am concerned with the hurry up attitude of the government opposite. The Constitution is too important. Our rights are too sacred to be rushed along in a whirlwind of hasty meetings and telexes, hasty amendments and House agreements. I say, stop the merry-go-round and slow down. What is the hurry?

I do not want to see Canadians saddled with an imperfect Charter of Rights and Freedoms. I do not want to see Canadians saddled with many of the clauses which will not stand the close scrutiny of Laurier’s sober second thought. Rome was not built in a day. Constitutions are not made overnight, or late at night in kitchen conferences at the Conference Centre amid bottles of whisky. Constitutions are not made in hasty, badly thought out compromises. On Wednesday we will be asked to vote on this hasty document, an Accord of flaws, an unworkable maze.

I for one do not want to see a Canadian Charter of Rights and Freedoms in stone and enshrined in Great Britain. I want to see it made in Canada by Canadians, and I want a charter as perfect as men and women can devise. But the axe falls Wednesday at three o’clock.

Personally, I want to see our rights carefully considered, not traded off for expediency and efficiency to meet some fictitious timetable, a timetable to salve one man’s manic ego whose documented desire is redistribution of wealth in this Canada of ours and enshrined bilingualism.

I fear as much this charter proposed by the Right Hon. Prime Minister (Mr. Trudeau), the author of “Federalism and the French Canadians”, the implementer of the draconian War Measures Act, the closure artist, the order in council buck passer, the prosecutor of the Official Secrets Act, the manipulator of the uranium cartel, the man from whose cabinet the Hon. James Richardson retired warning us all of the Prime Minister’s motives regarding the Constitution. I fear a Charter of Rights and Freedoms from someone who has ignored rights.

We may be opening up a Pandora’s box by proceeding with undue haste and a lack of caution. What is wrong with a cooling off period and the appointing of a constituent assembly? We could then go about our business while the Constitution is being debated again. We could look after the economy. We could strike an all-party committee and invite the Governor of the Bank of Canada to sit in on the hearings, and we could do something about interest rates, the mortgage rates and the deplorable lack of housing. What is wrong with a second thought given to the resolution by Canadians from all walks of life? There are too many ifs and buts in this resolution. There are too many loopholes, many more than the ones which the Minister of Finance (Mr. MacEachen) is supposedly addressing in the budget. There are too many escape clauses and too many clauses which divide us. There are too many areas for disagreement.

Will the Yukon and the Northwest Territories be forever doomed to territorial status because of this imperfect resolution? It certainly looks that way.

Will our system go the way of the United States in dealing with criminals? I hope not, but I fear so.

Already there are revolving doors at main entrances to most police stations. As quickly as police round up lawbreakers, they are released and back on the streets in record time. The police in this country are helpless to carry out the mandates to which they are pledged. Violent crime is on the upswing in most communities in Canada.

Are we moving toward a society where there is more concern for the rights of the criminal than for the rights of the innocent? I hope not. I do not want to see a society where the civil liberties of the lawbreaker override the basic rights of the law-abiding citizen.

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I am sure that all Progressive Conservative members have received in writing the concerns of the Ontario Attorney General in this regard. I am sure that all parliamentarians have received the objections of the Ontario Police Association to the exclusionary rule. Are we adopting the U.S. Miranda convention? I certainly hope not.

Former Senator Eugene Forsey, now retired, is one of the most respected constitutional experts in this country. Permit me to read what he wrote:

If we draft in haste, we may have to repent at leisure, and a very prolonged leisure. We could be stuck with a blotched Constitution for a generation or more. Our children and our children’s children might have to suffer the consequences or our carelessness, our fecklessness.

I agree with this thesis a hundred per cent.

Is there no way that this imperfect document may be hoisted so that it may be made more perfect, as perfect as the input of all interested and involved Canadians will allow; a constituent assembly taking at least as long as the original document took which was ended by closure? Is there any sane reason for this inordinate haste to rush to judgment, to Great Britain? Is there any logical reason for the imposition of informal closure by the government House Leader? Are there any compelling reasons, and if there are, I fail to see them. Will this resolution make Canada a better place to live in? Will it create harmony and unity? Will it heal wounds rather than create new ones? Will it make better partners of the two founding races in confederation? Will it strike down insidious invasions against language freedom, such as Bill 101 in Quebec? Will it guaran­ tee the same language rights to the English-speaking minority in Quebec as it does to the French-speaking minorities in the other nine provinces?

The Houses of Parliament here have some 1,800 employees. About 50 per cent of management consists of anglophones and about 50 per cent of francophones, the remaining two-thirds being francophones. Is this employment by merit or by language? Does this sound right; does it sound fair? Will the charter curtail or promulgate these things?

Under Sections 23 and 58, will the provision to allow provinces to opt into language rights enhance and advance the government’s linguistic goals for this nation? I fear not, and I also fear institutionalized bilingualism. I fear the Canada clause and I fear for the English language in view of this government’s policies.

I ask you, what will this nation face if Quebec ever secedes? I am afraid there will be acrimony, and acrimony of the most bitter kind.

Under Section 28 the notwithstanding clause is really an override. The much vaunted Charter of Rights and Freedoms is really not entrenched or enshrined in the Constitution. It is subject to change at the future discretion of federal and provincial legislators. I happen to disagree with this approach. The draftsmen are attempting to ensure that the custodians of our rights will not be appointed judiciary, but the elected representatives in the federal and provincial arenas.

I happen to be one of those who feel and believe strongly that basic human rights are not negotiable and not amendable. These rights were not given to us by the state. They are inalienable rights which stem from centuries of civil and common law, from confrontations with the monarchs and the barons, and from bloody battles in the defence of liberty and freedom. These are inalienable rights, as has been stated so many times; the right to life, liberty and the ownership of property. The state is not giving us any rights we do not already possess. To attempt to formalize these rights in a charter is carrying coals to Newcastle. Anything that is not written down I can do. It is those things that are done backwards that I fear.

The right to freedom of religion does not require any legislation which may permit a “notwithstanding” clause. The right to freedom of speech does not require any legislation which may permit a “notwithstanding” clause. The right to freedom of assembly does not require any legislation which may permit a “notwithstanding” clause. The right to own property does not require any legislation which may permit a “notwithstanding” clause.

By the way, under Section 2, where is the right to possess and enjoy the ownership of private property in the Charter of Rights and Freedoms? You will not find it, and do not give me the bally-hoo about provincial rights.

May only the state own property? The right to own property is a sacred right in this country and in a few others. Its omission from the charter is indefensible in my opinion. Historically we have always had that inalienable right to property. Even Machiavelli, who was championed by the right hon. gentleman across the way, stated:

When neither their property nor their honour is touched, the majority of men live content.

Let me quote from Charles Evans Hughes in a speech at Elmira, New York, in 1907. He said this:

We are under a constitution, but the constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the constitution.

Pope Leo XIII stated in 1891:

Every man has by nature the right to possess property as his own.

It is ludicrous in my view to propose such a tentative charter. It is an affront to simple justice, equality, liberty and freedom to propose a charter which might be subject to change at the whim or caprice of some legislative body. Freedom of speech, religion, assembly and the right to own property are basic human rights. They are less than secure or safe if they are subjected to a “notwithstanding” clause.

These fundamental freedoms should mean the same throughout each and every province in this country. We have always assumed that our rights are universal and portable. We have never considered for a single moment that they might vary or be subjected to different interpretations depending on what province we are in.

If rights must be entrenched, so be it, but let them be entrenched without qualification or override. In my lifetime I

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have seen too many abuses of the rights of some, ostensibly to protect the rights of others.

I think perhaps it was John Stuart Mill who said literally that every man has the right to go to hell in the manner of his own choosing so long as he does not bother his neighbour. I would prefer to take my chances with the courts interpreting my rights. I do not subscribe to the doctrine of legislative supremacy in all cases. If you prefer to go the route of legislative supremacy, maybe you should talk to the Japanese-Canadians whose rights were overridden during World War II, or talk to the Jehovah’s Witnesses in Quebec.

I do not favour any lossely worded protection of basic rights which will permit the passage of discriminatory legislation. It has been written by others that the “notwithstanding” clause is a “watering down,” a “gutting” and a “disembowelling” of the Charter of Rights and Freedoms. The “notwithstanding” clause weakens the charter, it does not strengthen it. Freedom of religion means just that-no “ifs”, “ands” or “buts”. The same goes for our other fundamental rights and freedoms.

Will we be better off with a Charter of Rights and Freedoms? Will we be more united? Will this proposed charter divide us? Those are interesting questions.

The United States has an entrenched charter, but its charter was wrestled, fought for an bled for. It was a declaration of independence from another country. That is a vast, vast difference.

On the other side of the Atlantic the United Kingdom does not have an entrenched charter of rights. In fact, the U.K. does not have a formal constitution. The U.S.S.R. has one of the broadest and most humanitarian charters for the protection of civil liberties that exists anywhere in the world. Need I say any more? So much for entrenchment.

We have existed for 114 years without an entrenched chart­ er of rights and freedoms, and I think that, with a couple of obvious exceptions, we have done remarkably well. Most Canadians want an end to this debate, but I do not believe they wish an imperfect charter as the price. I do not believe they want an imperfect Constitution. I would again like to quote from Senator Forsey who said:

—if we get an entrenched charter of individual and minority linguistic rights, putting them out of the power of Parliament or the provincial legislatures to touch…Such a charter would give the courts wholly new, and vitally important, powers over a vast new field of subjects; and the history of the United Stales shows how courts can interpret an entrenched bill of rights to block social progress. So the drafting of such a bill, or charter, will be both delicate and crucial.

For example; a constitutional guarantee for parents to have their children educated in their mother-tongue (French, English, or native) would not protect the freedom of choice which the United Nations has declared essential. An English-speaking Canadian who wanted to have his children educated partly in French, or a French-speaking Canadian who wanted to have his children educated partly in English, or an Indian or Inuit who wanted to have his children educated partly in French or English, would have no constitutional protection whatever.

I do not believe that the people of Canada wish to trade parliamentary law for constitutional law. I feel somehow this evening that my remarks here are redundant. The dye has already been cast. We are all aware of it on this side of the House.

The government is determined to proceed hastily with this inferior product while we suffer the consequences later. It may be news to the government but Canadians do not rate the Constitution very highly in the pecking order. As Canadians perceive it, I am told that it ranks about fifth. It rates below the economic issues.

I am sure that most Canadians condemn the headlong haste of this government to patriate the Constitution. No one will disagree with the laudatory principle of patriation of the British North America Act to Canada so that our national infrastructure may be amended in Canada by Canadians, which is not the situation now. Patriating the British North America Act and adopting an amending formula are long overdue measures, but as the old Chinese proverb says, “Every journey of a thousand years requires a first step.”

Many of my colleagues and I are prepared to take that first step but many of us are reluctant to voice our approval for something which is incomplete, inferior and a product of poor draftsmanship.

Give us the ways and means to unite this country. Give us the opportunity to unite as Canadians while casting partisan politics aside for the common goal, and give us the hope that we may have a basic resolution which can be examined and improved from time to time. Wednesday at 3 p.m. is not long enough. Let us not attempt to hobble future generations of Canadian legislators, the judiciary and ordinary Canadians with what is expedient and at the time politically proper.

We must do what is right. I must do what I consider right and not just what is popular. It is to be hoped that all our constituents will understand what we are doing. We will always need a salve in this country to soothe the regions and provinces, but now more than ever.

Let us slowly embark on that journey of a thousand years, but we should make haste slowly. Next Wednesday at three o’clock is a moment of great personal and national decision. Donne said, “Ask not for whom the bell tolls, it tolls for thee.”

Hon. Bryce Mackasey (Lincoln): Mr. Speaker, when I came to the House of Commons in 1962, many years ago, I think that my views on the issue of unity, bilingualism and multiculturalism had already been fairly well formulated.

I might just say, without going into detail, that my formative years were spent in a community called Sillery, halfway between Quebec and Quebec Bridge. As I recall, it was a community which was made upword principally of French-speaking Canadians—we used the word “Canadien” in those days, not Quebecois. There was a large number of Irish Canadians and Scots living there. It was a community which was the exception rather than the rule. I had the privilege of learning French, not in school but from French-speaking Canadians, for whom I had a great affinity even as a youngster. We did many things in common. We played ball, hockey,

[Page 13518]

ran to vespers in the evening, went to mass which started at 10.30 in the morning and finished at 1.30 or 2 in the afternoon on Sunday. We learned to respect each other. We learned to respect each other’s language, culture and traditions. Now and then we traded insults, which is normal, and had small arguments which disappeared overnight.

When I came to the House of Commons in 1962 I was appalled at the lack of sensitivity here. Documents were tabled in the French language weeks after the English version, and even those translations were poor. There were unilingual guards at the front door, which was an embarrassment to all members from Quebec who had French-speaking constituents visiting their Parliament.

Due to the foresight of Mr. Diefenbaker, who named the first French-speaking Governor General, and the wisdom and sensitivity of Mr. Pearson, who set up the Laurendeau-Dunton Commission, slowly but surely the understanding of the House in that respect evolved. When the Official Languages Act came before Parliament in 1969, it was endorsed by virtually all members of the House.

I had rather simplistic views on the Constitution in 1962. I saw a country in which both official languages would be recognized from one ocean to the other; where French-speaking Canadians could send their children to the school of their choice, as I could in Quebec. It was a right, not a privilege. I visualized a multicultural country in which all Canadians were equal. I linked that with the change in the Constitution. I even recall being encouraged by Mr. Pearson in the 1960s, as an English-speaking Quebecer in a predominantly French-speaking caucus, to present the views of English-speaking Quebecers forcefully in that caucus. However, an hour or two later I would find myself arguing the views of French-speaking Canadians along with French-speaking members in the nation­ al caucus.

Those were tough days, days when the President of the CNR said he could not find enough French-speaking Canadians to name to the board of directors of the CNR. It was not prejudice, but insensitivity, intolerance and misunderstanding. I have seen great progress made since. That is why I am a great admirer of the present Prime Minister (Mr. Trudeau), because imperfect as this Constitution and the Charter of Rights and Freedoms are, the Officials Languages Act is still enshrined in the Constitution. It is beyond the grasp of petty politicians who may in the future, if politically expedient, wish to modify or change the Official Languages Act.

For the first time, French-speaking Canadians outside Quebec will be able to demand that their children be educated in their mother tongue, by virtue of Section 23. The provision is less than ideal—it is limited by the phrase, “where numbers warrant”—but at least it is a step in the right direction. It shows which way we want this country to grow. I am pleased that the two criteria in Section 23 go a long way to implementing the concept of freedom of choice. I am a little unhappy that Section 23 is limited as far as that application is concerned to the English-speaking people of my former province of Quebec. I am sorry that Section 58 had to be introduced in that resolution which limits to some degree freedom of choice. If members opposite feel as strongly about Section 58 as the member who sat down, he or his party tomorrow can make an amendment to remove Section 58 from the charter if they feel like it. I do not think they will.

I am conscious, since I have been in Lincoln, of the privileged position I really had as a youngster in Quebec. I am sorry that the Constitution does not include the provision of Section 133 in every province across the country. I am truly sorry about that. I applaud Mr. Hatfield and his progressive approach to that issue. I am pleased, in other words, that we have gone a long way, through the Constitution, to rectify old injustices.

The hon. gentleman who just sat down recalled the intolerance of Quebec, and he mentioned the Jehovah’s Witnesses and linked that situation somehow with the Prime Minister (Mr. Trudeau). I suspect that his knowledge of Quebec history is very sketchy and very superficial because if he knew any­ thing-and he is not here at the moment-he would know that it was Pierre Elliott Trudeau and Frank Scott who took the case of the Jehovah’s Witnesses all the way up to the Supreme Court against Mr. Duplessis and wiped out that infamous padlock law. That same Pierre Elliott Trudeau is the Prime Minister of this country.

I do not know how I will vote on Section 58. It bothers me, concerns me and worries me. I know how important language is to French-speaking Canadians. Their battle for survival is well documented. Thomas D’Arcy McGee, who was one of the Fathers of Confederation representing the riding I represented when I left here in 1976 to go to Quebec to seek election, said as far back as 1857:

The Canadien hold dearer than life itself, their social life, their historical rank, their religion, their nationality…Their language is their point of honour as well as their lever of power. So long as they keep it, they are unconquered. When it ceases to be spoken by their children, a greater loss than Montcalm’s will be felt.

I share that view. I expressed it in the Quebec National Assembly the day I left. I admire French-speaking Canadians for fighting so vehemently for their language.

There is another reason hon. members opposite should welcome Section 23 as it applies to French-speaking Canadians living outside Quebec. They should be pleased at the extension of Section 133 to New Brunswick because there are many forms of separation and many ways by which separatism can occur, and perhaps the most dangerous, because it is the most subtle, is the kind of separation that would inevitably result if somehow in the future Quebec were to evolve into a unilingual French province and the rest of Canada were to become totally English. In no time we would cease communicating. In no time we would separate into two nation states. In no time such separation would be inevitable. On October 23, 1976, in a speech I gave the night before I announced my resignation in this House, I said:

[Page 13519]

But there is another road to separatism that is more dangerous because it is not so apparent. If over the next decade Canada were to become a country made up of two groups, two communities, two ghettos, if you like-one speaking only French and the other speaking only English-then in a relatively short period of time, both groups would be assimilated, culturally, economically or both, by the United States of America. It is the bilingual character of Canada that more than anything protects it against American cultural assimilation; it is the economic strength of the whole country that has preserved us so far from total economic subservience.

That is one reason, Mr. Speaker, if you do not buy any other, that we should welcome the growth in numbers of the Acadian people and hope that the cautious steps taken in the Constitution may somehow result in a decade or two in a substantial growth in the numbers of French Canadians out­ side Quebec.

What about the English speaking community of Quebec? It has been privileged; I say that without hesitation. Where Ontario and Manitoba skirted the will of the Fathers of Confederation Quebec honoured it to the letter of the law, and more. We have our own school system because of Section 93 of the Constitution. French-speaking Canadians in Ontario will not have that ever after the constitutional changes. We have our hospitals, our schools, our universities and our infrastructure but, as the Minister of State (Mr. Joyal) said today, enrolment in the English-speaking school system is down by 33 per cent in five years. It is down because English has been prescribed by Dr. Laurin in a neat little box: no addition to its natural source of numbers; the lower birth rate; thousands of people have moved out of Quebec for economic reasons; a close, tight definition of what is an English-speaking Canadian; and the fact that English-speaking people from outside Canada cannot enter the English school system in Quebec at the moment, something we are rectifying with the Canada clause. All these things have limited any injection into that little group of people, which slowly but surely is diminishing in number. Unfortunately, Section 58 postpones rectifying this for another indefinite period, until some more enlightened provincial government comes along and opts into the mother tongue feature. It is too bad we did not have the generosity of spirit to do it now. I say that sincerely. I have to say it; it bothers me, and it hurts me.

I could understand it if the numbers were the other way. I could understand it if the English-speaking Quebecer represented a threat to the language and culture of French Quebec. The real threat comes from the field of communications, as the Minister of Communications (Mr. Fox) said at the weekend. It comes from Archie Bunker on the boob tube. It does not come from the presence of a few hundred thousand kids in school. That is the line the Parti Quebecois has developed and fostered through the decade in order to garnish all the mavericks, nationalists and misfits possible to join forces with those who legitimately think independence is best.

I say to my former citizen friends in Quebec that they have to recognize that the charter is not quite what they had hoped it would be, but it goes a long way toward perfection. We retain our confessional schools. The charter contains at least a clause which says that if you were educated in English in any of the other provinces and you are coming to Quebec, your children would be able to go to an English school. It contains a clause of which in a few years, happily, another government will see fit to take advantage, namely, restoration of freedom of choice for Canadian citizens. This is in addition to all the other benefits in the charter which flow to Canadians, what­ ever their language and whatever their persuasion.

I say, however, to hon. members opposite, as a friend and as one who feels this deeply, that if they bring in an amendment tomorrow and play petty politics with one million English­ speaking Quebecers-an amendment, for instance, which says we will wipe out Section 23 entirely in order to appease the Quebec government because we must bring the Quebec government in somehow-the English community will not forget the Tories or the New Democratic Party, and I will see to that, because that would be rank discrimination. That would be denying the English-speaking people of Quebec not only freedom of choice but also the Canada clause to which Mr. Levesque agreed some years ago in St. Andrews.

I have sat here and listened. I have read the letter from the Leader of the Opposition (Mr. Clark) to Mr. Levesque. I heard little bits of a speech last night in Montreal. I hear that a nice little amendment will be coming tomorrow. I hope it is not an amendment which suggests for a moment that Section 23 be postponed until some future time, in the vain hope that somehow the Parti Quebecois can be seduced into supporting the Conservative Party in the next election. Not only will they lose the Parti Quebecois, which they never had, but they will lose the English-speaking community which under normal circumstances supports that party in surprising numbers.

Mr. Blenkarn: Tell me when.

Mr. Mackasey: When? Mr. Diefenbaker always picked up eight or ten seats. He had the support of the normal English­ speaking Quebecer who traditionally supports the Tories, as he should have under our system. Periodically that English-speaking Quebecer supported the Liberals and this Prime Minister because they felt that somebody in this House was speaking out for their rights. Until the hon. member mentioned English­ speaking Quebecers tonight, and the member who spoke before supper did so too, nobody in the House got up to say one word on their behalf. It was as if they did not exist. However, there are one million such people in Quebec, more than the population of Saskatchewan or Manitoba-I may have forgotten my figures-who are Canadians. They look to this Parliament as federalists for their rights. They look to the charter. They look to the hon. member for Saint-Henri-Westmount (Mr. Johnston) or to the Prime Minister or to the Quebec caucus to protect their rights.

I do not speak in anger. I speak gently and softly. However, I was appalled when I heard the Leader of the New Democratic Party refer to new Canadians the other day as immigrants and again over a radio or television show on Sunday. It is almost as though there has to be a pawn in the chess game between the federal government and the separatists. Somehow

[Page 13520]

that pawn in the chess game is one million English-speaking Quebecers. I hope that is not the case.

I will probably support this resolution reluctantly, not nearly as freely as I would have if Section 58 had not found its way into the resolution two weeks ago. I accept the explanation of the President of the Treasury Board made in the House a week ago Monday. I accept the Prime Minister’s reminders periodically that perfection can be the enemy of the good. I just hope that, in their anxiety to appease the PQ government, the party opposite does not break faith with one million English-speaking Canadians.

Some hon. Members: Hear, hear!

Mr. Lorne Nystrom (Yorkton-Melville): Mr. Speaker, I wish to say a few words tonight about the very historic resolution before the House. On the afternoon of November 3 when that very historic accord was announced, two feelings hit me all of a sudden. One was that I thought the Canadian people, on one hand, probably heaved a sigh of relief that the accord had been reached, but, on the other hand, there was not any celebration. In addition to the free-standing sexual equality clause not being there, the aboriginal people of this country had been left out and the province of Quebec was not a signatory to the accord.

I had another feeling as well, that the Canadian people wanted an end to conflict within our country. They had the feeling that all of a sudden there had been a settlement with nine of the provinces. However, to really end the conflict in the country, something more had to be done. We had to settle with the aboriginal people of this land and the people of Quebec.

When I look at a Constitution, I feel that it should be a reflection of the reality in a country. In other words, it should be a mirror of the country. When we look at Canada, we see a country that is very complex and extremely diverse. It is not a federation like the others.

There are some federal states where most of the states are quite monolithic and it is relatively simple to devise a system. There is good regional balance. In our country we have competing realities. What is real in one area may not be in another. We have many communities which are very different. There is a lot of regionalism in this country, as well as the factor of duality. Somehow in a Canadian Constitution all of these differences which make us so unique, and I maintain make us so rich, have to be recognized and reflected.

I will deal first with regionalism. The provinces all differ one from the other. Saskatchewan differs from Alberta as Newfoundland differs from Prince Edward Island. We also have differences within the provinces. We have different regions. I think of the Peace River country in Alberta which extends into British Columbia, Cape Breton which is different from main­ land Nova Scotia, and the Italian community in the city of Toronto and the Chinese community in the city of Vancouver, which are also unique. I think of all these differences in terms of regionalism and ethnic origin in this country which makes Canada so rich. All of these say very clearly, as the leader of our party said this afternoon, that the nine English-speaking provinces are not monolithic. They are different.

In the accord reached on November 5 those differences are reflected in terms of flexibility within the Accord. The differences are reflected in terms of the amending formula which treats every province as constitutionally equal. It has in there as a safety-valve an opting-out provision in case provinces should decide to give some of their powers to the central government.

We have reflected in the accord the enshrinement of a multiculturalism reality which is important to many Canadians. We have enshrined in the resolution rights for many Canadians, men, women, the handicapped, the aged, and no discrimination on the basis of colour, ethnic origin and so on. We have greater powers being transferred to the provinces in terms of resources, which is important to a province like mine and to many other provinces.

We have equalization being enshrined in the resolution before us. That is important to many provinces, particularly to Quebec, the Atlantic provinces and Manitoba. These are many things that are positive. It is a very good beginning, a very big step forward in the search to find ourselves in this country.

In a way, the nine English-speaking provinces have found themselves. We have come to terms with ourselves. It took a long time to do that, but we have an accord now that goes a long way in that direction.

As I said before, this country is more than just communities and provinces, more than just the sum of all those parts put together. We are more than just regionalism or east and west and central Canada. We have the unique factor of duality in Canada. In fact, we have a double duality. We have the duality of the provinces and of the aboriginal people of this country who are at the base of our Confederation, the original people of this country who cannot be forgotten. We need a special accord, entente or arrangement, whichever word you want to use, with the aboriginal people of this country. We are off to a pretty fair start with Section 24. It goes the right way, but it is only a start. Our party realizes this. This is why we are moving a motion to involve the aboriginal people in the amending formula in terms of their consenting to constitution­ al change affecting them. We realize that to give them the same rights in terms of their needs as other Canadians have we must reach a settlement or negotiation that is slightly different with them than we have with the provinces per se.

[Translation]

Mr. Speaker, we also have another very important duality in this country of ours, Canada, the French Canadians of Quebec, a very distinct Quebec society that is very different from that of other provinces. For instance, two languages are spoken in Quebec, French and English. The history of Quebec is also very different as are the facts of life. There is a different civil code, a different religion in the province of Quebec. Right across the country, administrative and constitutional arrangements differ from those found in Quebec. The proposal made by the leader of my party, the hon. member for Oshawa (Mr.

[Page 13521]

Broadbent) is not only an extension of that dual reality in Canada but, as I see it, an extension that is necessary in our country. I want to congratulate our leader as well as the leader of the Progressive Conservative Party (Mr. Clark), who tried through other means to find a solution for the people of Quebec.

Duality is necessary. Some things in the resolution are most important to Quebec. I have already mentioned many of those that are important to all the other provinces of Canada, and the Prime Minister (Mr. Trudeau) has already agreed in the resolution, in Section 40, I believe, to compensation with regard to education and cultural matters. I want to congratulate the Prime Minister on accepting to do so for the province of Quebec. It is very important for the people of Quebec, but we have another idea and another proposal to put forward. To my mind, Mr. Speaker, duality is necessary. Let us keep in mind that there are only six million Quebecers in Canada, six million Quebecers in North America. It is of the utmost importance for the future of our country that the Constitution contain a provision ensuring the security of francophones.

[English]

I think, Mr. Speaker, as a Canadian who comes from an English-speaking province, that we should look very seriously at the specifics of the motion moved by the Leader of the DP. First of all, it deals with the issue of national unity. It says that “We as Canadians in the west or in Ontario or in Atlantic Canada very much want Quebec as part of our country”.

An hon. Member: Right on.

Some hon. Members: Hear, hear!

[Translation]

Mr. Nystrom: It is imperative that Canada include Quebec.

[English]

I think we have to do whatever we can to make the people of Quebec feel a part of this country and of this Constitution. People also want an end to conflict in this country. They realize that the conflict will continue until we reach a settlement with Quebec and with the aboriginal people of our land. We also realize that the Premier of Quebec said last April that he was willing to trade his veto, if indeed there was a veto, for an opting-out formula that would not penalize Quebec on existing powers only; not on additional powers but on existing powers only.

I want to take a look at whether or not we should accept the kind of deal that was offered by the Premier of Quebec. First of all, I want to argue that we very seldom use it. If I remember correctly, over the last 114 years of our history there have been only about two occasions when the provinces agreed to give some of their powers to Ottawa. By the way, the opting-out provision applies only if a constitutional amendment derogates or takes away from existing powers. That is all it is. We have had only two examples of that in the history of our country. One was for unemployment insurance; one was for pension legislation.

In the case of pensions, Quebec wanted to opt out. The government of Lester Pearson said that it will set up an administrative arrangement, “You can have the Quebec pension plan and we will have the Canada Pension Plan”. As a result, we have a national pension plan, and Quebec did not have veto power to stop the pension plan for all. My point is that it will happen very seldom, Mr. Speaker. It will not happen every ten or fifteen years but very seldom indeed.

The second point that I should like to make is that for it to happen at all, seven provinces have to agree to transfer some of their power or jurisdiction to Ottawa. If that happens—and Ottawa, of course, as to agree as well—then it must be for a pretty good cause, or a pretty just cause, and for a pretty important cause in terms of this country.

The other point I want to make is that not all opting out that would occur will involve compensation. There may be some opting out that will just involve some inexpensive arrangements in terms of transfer of jurisdiction from one area to the other. There may be some opting out where indeed the provinces by opting out would continue to keep a lot more money than by transferring their power to Ottawa. For example, if a province wanted to transfer its resources to Ottawa, it would lose a lot of revenue. By keeping the resources, it would keep the revenue but it would receive no compensation. It would not lose anything. There would be nothing to compensate it for. I make the point that it would happen very seldom indeed, Mr. Speaker.

The second area I want to look at is the cost of the compensation amendment of the Leader of the NDP. If you look at it, no cost to the taxpayer of this country is involved. If indeed Quebec opted out of some amendment that took away from its existing powers, it would not cost the other taxpayers of this country. Other provinces would not have to pay any­ thing to the Province of Quebec. There would not be any special tax whatsoever. On one hand, it would not cost us a penny. On the other hand, the citizens of the province of Quebec would not be double taxed because now under the amending formula Quebec could opt out. However, it could involve a lot of money. Quebecers would still pay into the national treasury for national programs and pay an extra tax into their own treasury in their own province for their own programs. l maintain if that ever happened, Mr. Speaker, any federal government would probably make an administrative arrangement anyway. I maintain that from the point of view of cost it is a very sensible idea indeed.

I want to look at the question of veto that I previously mentioned. The Premier of Quebec has offered to trade away his veto. I think for the other provinces in this country this is probably a very good idea. I shall remind the House that Quebec government have traditionally wanted a veto.

The Prime Minister until three weeks ago wanted Ontario and Quebec to have the right of veto. I have had mixed feelings about that. I thought that because Quebec is different it needed an assurance that its existing powers would not be

[Page 13522]

eroded. It needed an assurance that the French language would be protected. On the other hand, I am not sure it needed a veto to stop changes in freight rates, transportation systems, municipal affairs and things that really had nothing to do with what it needed as a collectivity to survive.

It is a point that was made on CTV’s “Question Period” by the Premier of Quebec yesterday when he said that Quebec has been rightly criticized over the years for wanting to veto or block any constitutional change. If it did have a veto, it could block national programs, for example, that are needed by this country. There could also be a roadblock in terms of blocking something that was not needed for Quebec but that was vital for other provinces in our confederation. In effect, it could hold up other provinces in terms of stopping the evolution of constitutional change in this country. For the other provinces to find this kind of a compromise is a good thing, and it is good that we can still have constitutional change. But if that change were to hurt the people of Quebec and derogate from the powers it now has, the status quo it now has, not something extra in the future, then the people of Quebec, through the National Assembly, could opt out without being penalized.

That is all we are asking for, Mr. Speaker. We are asking for the protection of the powers and the competence of the Province of Quebec that exists right now in the Constitution of Canada. We are not asking for anything more.

I should like to say one word about the Conservative amendment, Mr. Speaker. My leader has offered some of our concerns about it, and what it may mean to national programs in this country. I want to add that when the accord was signed by the nine premiers of the other provinces, all nine said that they wanted to agree to the amending formula that we have and, that they wanted the opting that we have but that they did not really require the compensation clause to remain. On the other hand, Quebec said that it required the compensation clause.

I understand the premiers have said to the Prime Minister, “You have a tremendous amount of flexibility and leeway to try and settle with the province of Quebec.” All this party is saying is that if by offering that clause, that will settle with the province of Quebec, then it is worthwhile for the unity of the country and it is worthwhile if it will end the conflict in the country that is sickening people and making them disgusted with all the fighting and turmoil that is present today.

I want to urge the Prime Minister of Canada and the ministers in charge to take a serious look at the amendment we propose. If they cannot agree to it this time, then, as I suggested this afternoon, perhaps it could be inserted in the resolution, in Section 38(1) of the amending formula which concerns the Senate and the House of Commons of Canada. If we could put this in the resolution we could deal with it here and then the Senate could deal with it. The national institutions would have dealt with it saying that they want a compensation amendment, then later in the process the provinces would have to respond. If they should respond, then I think we will have gone a long way toward meeting the concerns of the province of Quebec.

I just want to reflect on one or two other things about the whole process that all of us have gone through. In many ways, the process was typically Canadian. We have stumbled to a conclusion, or a quasi-conclusion. The process will not be complete, of course, until we deal with the Quebec issue and the issue of the aboriginal people, but we have come a long way.

If we learned anything from the process, it is that we should have involved more people from the beginning. We should have involved not just members of the government and the opposition parties in the House and in committee but we should also have involved members of the legislatures of the provinces. I remember speaking on this subject in October and suggesting to the government that we should have involved members of the government and members of the opposition of the ten provinces, that we should have involved the aboriginal peoples of this country, that we should have involved the Yukon and Northwest Territories and, finally, that we should not leave the Constitution primarily to 11 men to settle behind closed doors but we should have involved the women and women’s organizations of Canada.

Had we done this, we would have had a lot less agony, less divisiveness, less pain and conflict over the matter. I do not believe that a Constitution hammered out by 11 delegations getting together, making deal after deal, getting into all kinds of options where certain rights are traded for other rights, certain powers traded for other powers, is the correct process, but we were all part of that process, Mr. Speaker.

When we get to stage two of Constitution building in this country, I hope that we will involve more people, that will consult more people, that we will get the aboriginal people involved in a meaningful way to discuss what their rights should be, that we will make sure we know what the people of Quebec want to do and what kind of measures they want in the Constitution of Canada and that finally, once and for all, we will make Canada a truly federal country in terms of our national institutions.

A Charter of Rights and Freedoms is enshrined in the Constitution but the final arbitrator will be the legislatures and Parliament on the one hand or the Supreme Court of Canada on the other hand. But the Supreme Court is appoint­ ed by the Prime Minister of this country and judges are appointed by the federal government without any input what­ soever from the provinces. Yet, the Supreme court is the referee in federal-provincial conflicts.

In federations such as the United States, Switzerland and others, in cases where national institutions affect the jurisdiction of the provinces and the federal government, both the provinces and the federal government must have a say. Until we have that reflection of the regions in the centre, we are going to have strains in this confederation, we are going to have things that pull us apart instead of bringing us together. We are going to have greater and greater institutionalizing of something which I do not like. which is a federal-provincial

[Page 13523]

conference and all the power that it has gathered to itself. The premiers’ conferences and the cabinet ministers’ conferences are accruing greater and greater power because of a vacuum in our system. There are no places in our country where he regions can be reflected equally, where the voice of the region can be reflected and heard and felt in terms of power.

Because of the lack of this possibility, the provincial Premiers and cabinet ministers become the spokespersons for regionalism in Canada. I do not blame them any more than I blame members of the House. I blame the lack of a truly federal system that reflects, on the one hand, “rep by pop” but not on the hand, “rep by region or rep by province”. I think we need both if this country is to stay together.

My final comments are about this institution itself, Mr. Speaker. I think we need a really serious reform in Parliament. I think we have to make the member of Parliament a legislator with some real power and real clout over what is happening in the country. All too often parliamentarians are nothing more than a rubber stamp for the executive or cabinet in Canada. I think that is dead wrong. I think we should be strengthening the power of committees and giving Members of Parliament a lot more power and a say.

I will just use one example of this, Mr. Speaker. In the United States the President can only nominate Supreme Court justices but the Senate, which reflects the states, has to approve those nominations in the judiciary committee.

An hon. Member: Do you want our Senate to pick them?

Mr. Nystrom: We cannot have our Senate pick them because our Senate is appointed solely by the federal government. It does not reflect the regions, federalism or the political reality that is out there in the country. These things have to change, Mr. Speaker.

Another thing is that the Prime Minister appoints all ambassadors. Perhaps we should look forward to a time when the Prime Minister would nominate ambassadors, and the External Affairs Committee of the House of Commons, representing the people of the country, could either accept or reject the nominations.

Many of our central institutions, such as the Prime Minister’s office and the Privy Council office, have too much power. That is an immense distortion of the democratic system and it is repugnant to the idea of democracy. I am not reflecting on any individual here. We as Canadians have allowed this practice to develop over the years. I think the time has come to democratize this place. The time has come to give members of Parliament real power as legislators, not just rubber stamps for an executive. The time has come for us to make sure we federalize our institutions and, if we are to keep the Senate, to make sure it is federalized. Otherwise, let us abolish it. We have to federalize the Supreme Court of this country and many of the other federal institutions, and if we do that, I am sure that the country will remain strong and happy forever.

For a country to survive, its constitution must reflect the reality of the country. Our reality as a country is one of diversity, one of regionalism, one of provinces and one of duality with our aboriginal peoples and the people of the French language or the people of Quebec.

Some hon. Members: Hear, hear! [ Translation]

Mr. Gerald Lanie! (Parliamentary Secretary to Minister of Industry, Trade and Commerce): Mr. Speaker, in this historical debate which marks a turning point in the development of Canada’s political structure, I should like, of course, to con­ gratulate the Prime Minister (Mr. Trudeau) on his perseverance and determination in dealing with the const1tutlonal issue and especially on his understanding and willingness to compromise as demonstrated during these past weeks. Earlier, I heard the previous speaker, my colleague the hon. member for Yorkton-Melville (Mr. Nystrom) making all kinds of suggestions at this late stage in the debate. If he had his way, the debate would have to start all over again. According to him, veto rights should be given to every single Canadian.

I believe, with the Prime Minister, that we must reach a decision, and the decision must be made this week. I am glad to see the parties in this House have at least agreed to finally end this first stage in the constitutional debate. I should also like to thank my colleague, the Minister of Justice (Mr. Chretien), for the persistence and determination he has shown in dealing with this matter, which represents a major step in the process of constitutional reform. All the points raised by the previous speaker can probably be dealt with at a subsequent stage.

Mr. Speaker, personally, I am very proud to be present once more in this House at another exciting moment in Canadian history and to be associated with the present government when this House votes on the motion to Canadianize the British North America Act after 114 years, to provide for an amending formula we have been seeking throughout that period, and to incorporate a charter of rights and freedoms to protect all Canadians. Mr. Speaker, in the publicity campaign that has been going on for months in Quebec, we have been told that our constitutional resolution was aimed at divesting Quebecers of their rights. Scare tactics were used in a series of melodramatic commercials. Well, I must say that if the Charter of Rights and the amendments being considered in this resolution do anything, they take away rights from all government a d redistribute those rights among all Canadians so that they will be better protected. In fact, both levels of government have relinquished some rights for the benefit of the individual, Mr. Speaker.

This is not the first time since I came to this House that I have been here at an historical moment such as this. I was here, Mr. Speaker, during the flag debate. I was also outside this

[Page 13524]

building when the Maple Leaf was finally raised for the first time on the Peace Tower. I was in this House when members agreed unanimously that the Canadian flag had its place on your right, Mr. Speaker. I was also in this House when we adopted the music and then the lyrics of O Canada as our national anthem, and we spontaneously sang O Canada in this House, with fervour and emotion. Therefore, it is with even greater pride that today I am taking part in this historical debate on the constitutional resolution, which, I realize, is not perfect. The hon. member for Yorkton-Melville, in fact, all hon. members may find there are shortcomings and that some improvements and changes are desirable, but the fact remains that this resolution is the closest we can get to a Canadian consensus, and the closest to what our fellow citizens want to see at this time in their constitution, over which they will have full jurisdiction once the British Parliament has agreed to this last constitutional representation by the Parliament of Canada.

Of course, everyone here regrets that the Government of Quebec did not choose to continue its involvement in the patriation process, a process aimed at strengthening Canada’s political structure and nothing else, and we had hoped, on all sides of the House r am sure, to receive before the end of the debate any suggestions or alternatives or compromises that would be acceptable to all concerned. Jn fact, the resolution does include certain provisions that would be favourable to a compromise solution. We left room for compromise but Quebec has refused to change its position.

Mr. Speaker, for the moment I do not intend to analyse the motives of the Quebec government, the Levesque government, to isolate Quebec, even though I know what they are. And I emphasize that it is the Levesque government and not the Quebec people which has isolated the province since the last first minister’s conference while we have seen what J consider exceptional efforts on the part of the nine other premiers as well as the Right Hon. Prime Minister of Canada to seek­ and find-grounds of agreement and compromise solutions.

Mr. Speaker, in view of the national consensus which is becoming increasingly evident among the public, I believe, as I said earlier, that we cannot wait forever and that it would be irresponsible for us to wish to start the entire negotiation process all over again, especially in view of some of the provisions contained in the resolution, including that under which the Quebec government can make a voluntary commitment concerning the linguistic clause, just as Ontario might eventually do with respect to Section 133 of the British North America Act by institutionalizing bilingualism in the Legislative Assembly of Ontario as well as in the courts of that province, as most francophones in Canada, and not only those outside Quebec, would like.

Mr. Speaker, the feelings of an individual are often identified  with  his  character  or  with  conditions  which  have influenced his life. It is in this context that I would like to express what I feel today. During the Second World War, forty years ago, Mr. Speaker, I joined the Canadian air force at a time when it was not easy for a unilingual francophone to get along in a unilingual anglophone air force—and the Minister of National Defence (Mr. Lamontagne) can confirm this—and at a time when everyone will agree that our two major ethnic groups did not understand each other as well as they do today.

[English]

I want to say a few words in English at this time and to repeat that it was not easy, neither at a few thousand feet in the air nor on the ground, for a unilingual, French-speaking member of the Royal Canadian Air Force to manage under the system. There were many others like me who came and joined the forces and got to like this country. I do not want to rehash the various situations in which we found ourselves in those days.

However, just as a hint to those who were not there, to those who sometimes question some of our representations, let me give them an example. I was one of a group of about 25 francophones from Quebec who were stationed in Souris, Manitoba, and who had to go on strike to win the right to speak French in our airmen’s canteen. Do hon. members know the solution that was found to that problem? We were moved to Toronto to learn English. However, all that did not impress me. I rose to the challenge. r obtained my pilot’s wings with the rank of pilot officer out of a graduation course of approximately 25 men of the RAF, 25 men of the RNZAF from New Zealand, 25 men of the Royal Canadian Air Force, men from outside Quebec, and one unilingual francophone. I succeeded not only in gaining my wings in the air force, but I also got to like my country. I became more proud to be a Canadian, which I am trying to communicate, and which I have been trying to communicate to my children and my friends ever since.

[Translation]

Mr. Speaker, during these difficult war years when the dialogue was not what it is today, I discovered that my heart was bigger than myself, my family, my city or my province, and that it was as big as this vast country of Canada with all its differences and various elements. Throughout the years, Mr. Speaker, I have found that my feelings for this country have become even stronger, and this is probably why I finally chose to spend 20 years of my life in politics, in this House, where I have continued, with the confidence of my constituents, to defend the principles to which I had committed myself, the main one being my country.

Mr. Speaker, since I was elected to this House, I have always promoted that kind of Canadian nationalism, while remaining committed to my province and my area, of course. I have always been outgoing, and my colleagues will vouch for it, unlike some of my fellow Quebecers who feel isolated,

[Page 13525]

suspicious and envious, and who advocate the break-up of this Canada of ours. Once, Mr. Speaker, as can be confirmed by my colleagues here, including the hon. member from Nova Scotia, I proposed that compulsory training be provided for young Canadians so that they get to know each other better, learn both official languages, acquire some sense of discipline and visit their country. I felt this would help them get together, fraternize and understand one another. For a number of years I have also been very active in French-speaking parliamentary associations, both in Canada and abroad, and one of the differences between myself and my colleagues from the Quebec National Assembly is the thrust of my action in respect of language and culture.

I recognize the evident responsibility the Quebec government and the National Assembly have for the French language in Quebec, but I have always maintained that my own duty, as a Member of Parliament, was not to isolate Quebec but rather to foster, its development through the promotion of the French language and culture throughout Canada, and even North America. I consider myself as one of the many French Canadians from Quebec who share a special concern for French-speaking Canadians in the nine other provinces, and my goal, my ultimate desire is that one day, this country may be still better identified with its cultural duality. I understand that some French-speaking Canadians outside Quebec may be impatient. So were we at one time. I ask them to trust us, to let us go through this first stage, and we will certainly continue to support them.

Mr. Speaker, those who would now turn Quebec into a cultural ghetto are blind and self-centered. They are going against the best interests of Quebecers themselves, they ignore the progress made in the last few years, thanks-as the hon. member for Verdun said earlier-to Diefenbaker, Pearson, the Prime Minister, and thanks to Real Caouette when he was elected to this House in 1962, sitting in the corner of the New Democratic Party. He sat there every day and fought for the rights of all Canadians, with a heart that was open to every­ one. True, there have been many disappointments. We would have expected more from the Official Languages Act. Nonetheless, the French cultural presence in Canada is asserting itself. It is now going beyond the use of language, it is reaching the hearts, and the children of many of our fellow citizens are more interested in it.

Two years ago in September, while I was in British Columbia, I learned that the first French classes for franco­ phone students were being set up grouping ten students at the same level. Do you know, Mr. Speaker, what is the problem of the Minister of Education in British Columbia? He gets too many applications from anglophone parents who want their children to learn French. This means that mental attitudes are changing. We are told that the same thing is happening in cities such as Toronto or elsewhere, which is amazing since French schools are not available to anglophones unless they are willing to pay. But at present, in Quebec, Bill 101 prevents an anglophone educated in English to send his children to a French school if he wants to. What inconsistency, Mr. Speaker!

Mr. Speaker, it is with an open mind and wishing that the people of Quebec participate fully in the constitutional reform that I speak on behalf of Quebecers as do all the other members in the Quebec National Assembly, especially since many members of this House do not know Quebec as I do. As a member for Beauharnois-Salaberry, I support on behalf of my constituents the resolution now before the House with all its implications, deficient as it may be, because I consider that it is in the interests of Quebecers and all Canadians.

Mr. Speaker, everybody wants our Constitution to be patriated. The amending formula is practically the one passed by the group of eight that included Quebec, with a slight amendment allowing that province to opt out with financial compensation for cultural and educational programs. As for the Charter of Rights and Freedoms, its broader aims are hardly questionable, and the two main objections of the Quebec government concern education and manpower mobility. As for me, Mr. Speaker, I do not agree with the uncompromising attitude of the Levesque government on those two points. A very large number of my constituents agree with me, and I am now speaking on their behalf. I believe that every Canadian is entitled to receive his education in his mother tongue, whether it be English or French.

I am also in favour of the right for all Canadians to seek employment in any of our provinces. Of course, adjustments should be made, as was the case for Newfoundland, to protect a province which is faced with excessive unemployment. Nobody is against that. On both counts, the Levesque government was invited to suggest amendments to ease its fears and protect its jurisdiction. All we got in return were insults, propaganda, provocation and legal action before the Supreme Court. Well, Mr. Speaker, we are not going to waste any more time!

Personally, I feel that the linguistic clause of the resolution which is commonly referred to as the Canada Clause is the minimum acceptable. I cannot help but rejoice when I realize that finally the Canadian Constitution, and not legislation of this Parliament or provincial legislature which could be changed to please such and such a premier, will recognize and enshrine as a principle the right of all francophones living in the nine other provinces to attend French schools, and the right of all anglophones living in Quebec to attend English schools. I think this is the seed from which Canada will develop within the next two generations—I do not mean tomorrow, Mr. Speaker—into the bilingual country our forefathers had dreamed about, and to which the Charter of Rights and Freedoms will add our clear determination to foster a better understanding, dialogue and brotherhood. Because of the urgency of the matter, the decision cannot wait. We must

[Page 13526]

stop procrastinating. The time for aggravation and dissension in this country is over. Now is the time for action. We have an objective to reach, we will reach it this week, and I intend to be here to support the resolution before us.

[English]

Mr. Don Blenkarn (Mississauga South): Mr. Speaker, when I spoke on this matter last February we were in the heat of debate. It was still apparent that the Prime Minister (Mr. Trudeau) was going to try to force the Constitution unilaterally upon the country with only the support of two provinces, certainly not with the support of the people of Canada.

So it was as a result of debate and as a result of the pressures brought on Parliament by this party that eventually the whole matter was sent to the Supreme Court of Canada. The Supreme Court looked at this constitutional proposal over the summer. It did not come out with a quick decision, as was predicted. It looked at the proposal over the summer and finally said: “You really have to have a massive consensus of the provinces in order to make what you are doing here constitutional.” This resulted in a federal-provincial conference, finishing in early November, and now we have the accord before us.

I say to you that the broad consensus of the nine provinces now is an important consensus. For any Member of Parliament, having debated and opposed what was happening on the basis that it was not constitutional and not proper, to now oppose it is to oppose the will of the people of Canada. I say that with respect to my good colleagues here on this side of the House who on Wednesday might well decide to stand up and oppose this constitutional package that it is no longer a unilateral package and not what was proposed in October of 1980.

What was proposed in October of 1980 and what is now before this House are two entirely different proposals. What was proposed in 1980 was something the Prime Minister, in spite of everybody, decided to force down the throats of Canadians. What is before us today is the result of months of hearings before a constitutional committee, a committee which, as members will remember, the Prime Minister did not want televised and did not want to have the powers to have witnesses brought before it. It was a constitutional committee that heard the concerns of native Canadians, the handicapped and those people who were worried about discrimination on the grounds of sex.

The package before us today is an entirely different package because it has a consensus of nine of the ten provinces. I say it is only because of the efforts of this party, only because of the indefatigable efforts of the hon. member for Yellowhead (Mr. Clark) that this has been possible. This nation owes a great deal to the efforts of the Leader of the Official Opposition who deliberately, quietly and, with the assistance of the hon. member for Provencher (Mr. Epp), was able to impress upon the premiers of this country and the people of Canada, with the help of the Supreme Court and the leaders of the provinces, that they had to get together and form a consensus.

There is one problem left, and that is that the province of Quebec, long the fortress of the francophone majority of Canada, the only province where French is the language of the majority, is unhappy and has refused through its premier to go along with this consensus. That is going to cause us a great deal of difficulty.

Part of the difficulty it is going to cause is the result of the attitude of the Minister of Justice (Mr. Chretien). The other day Mr. Levesque suggested his province had a veto. Maybe it does and maybe it does not, but it does not do any good for Canada for the Minister of Justice, who is supposed to be negotiating on behalf of Canada, to laugh at the Premier of Quebec.

A great deal of the problems we have with the Province of Quebec in bringing this country together are a result of the internal workings of the Liberal party in the province of Quebec, represented by Liberal members in this House-74 of them-in opposition to the majority party in the National Assembly in Quebec City. It is about time that Liberal members in the House of Commons tried to bring about a consensus in the province of Quebec in order to bring Quebec into this accord. It is about time they did something to bring the country together, rather than bringing their fights, their political concerns and their squabbles in the province of Quebec on to the national scene and, in the process, destroying our confederation.

We have proposed in the amendment to Section 40 of this measure the suggestion that there should be an opportunity for complete opting out by any province with respect to a matter that involves finance, and that a province which so opted out would be compensated when opting out on a particular power to the same extent as the average cost of the program across the country.

Miss Jewett: Why not just Quebec?

Mr. Blenkarn: My friend from Vancouver asks, “Why not just Quebec?” The answer is that this is one country and what applies to one province must apply to all provinces.

Miss Jewett: Nonsense.

Mr. Blenkarn: What applies to one province must apply to all provinces, and she says “nonsense”. She says that because she would like to wind up having the two-nation theory in this country, but that is not the policy of this party. This is one nation and we do not have to be divided. Clearly what is applicable to the province of Quebec should be applicable to all provinces, otherwise it will not sell.

An hon. Member: What about Section 133?

Mr. Blenkarn: There is no particular problem with respect to opting out.

Mr. Nystrom: I rise on a point of order.

[Page 13527]

The Acting Speaker (Mr. Blaker): Order, please.

Mr. Blenkarn: We have had opting out in this country for a long time.

The Acting Speaker (Mr. Blaker): Order, please. I recognize the hon. member for Yorkton-Melville (Mr. Nystrom) on a point of order.

Mr. Nystrom: I wonder if the hon. member would answer a question.

Mr. Blenkarn: Certainly.

Mr. Nystrom: The hon. member for Mississauga South (Mr. Blenkarn) said something very interesting. He said that what applies in Quebec should apply in the rest of the country. Quebec is bound by Section 133 of the British North America Act which obligates it to provide services in French and in English in its legislature and courts. I wonder whether the hon. member for Mississauga South thinks Ontario should be bound by Section 133 and, if so, will he publicly call for his premier to bind Ontario so Quebec and Ontario are treated the same?

Mr. Blenkarn: The hon. member for Yorkton-Melville (Mr. Nystrom) raises a question in relation to a problem that has been in existence in this country for some time. Let me suggest to the hon. member that he raises it to divide the country, because that is the proposal of the NDP. It is a divisive party if ever there was a divisive party. Its members want to break up this country. They want to put French on one side and English on the other side and cause a war.

Some hon. Members: Oh, oh!

Mr. Blenkarn: That is their attitude. I recognize the legal requirement for both French and English, and that after the resolution is passed, this provision will apply only to New Brunswick, Quebec and Manitoba. Perhaps it should apply to every province in the country.

Miss Jewett: You just said they should all be treated alike.

Mr. Blenkarn: They would propose amendments to make the situation even worse.

Miss Jewett: You just said they should all be alike.

Mr. Blenkarn: The laughing lady would say “they are all alike, they are all alike”. Yes, they are all alike, but they would try to make this country more divided.

Some hon. Members: Oh, oh!

Mr. Blenkarn: Certainly she is that way; she wants to make problems.

Let us go further. They proposed an amendment that would provide that only Quebec should opt out. They proposed an amendment of that sort because they said that if we were really concerned about Quebec, we should provide such a clause only for the province of Quebec.

I say to you, Mr. Speaker, that it is important that the clause with respect to opting out be the same for all provinces. The present clause is the same for all provinces, and we suggest that it be widened. We suggest that if it were widened, there would be a very good possibility that the government of Quebec, or eventually the people of Quebec, would find no difficulty in joining the accord. As long as Section 40 is left the way it is, the government of Quebec will always have an excuse to stay out of the accord. If we do not change Section 40, we continue to exacerbate the problem.

This afternoon the minister of state said that he would be prepared to accept an opting-out clause that would allow all provinces equally to opt out of amendments and be compensated. If the NDP were really interested in making this constitutional package work, why would they not go along with that? If they were, they would support the member for Provencher and the Leader of the Official Opposition.

In my opinion, there is only one conceivable problem in this package and that is that there is no quid pro quo, if you like, for Quebec’s Joss of a veto. If there were clear compensation for opting out, there would be no way for any Quebec government to say it is not protected. In fact, no province which has agreed to the accord could object, because the effect of the amendment by the hon. member for Provencher is to extend provincial rights rather than to restrict them. Therefore, it is clear that no province which signed the accord would object to the broadening of Section 40. If the amendment by the member for Provencher were accepted, it would be virtually impossible for Quebec not to join in the accord, and the only objection would come from the federal government, a federal government which wants to carry on the war in the province of Quebec to the detriment of all Canada.

I say that the amendment by the hon. member for Provencher must be agreed to because all the provinces which signed the accord will accept it, and if those provinces accept it, Quebec will have no logical, or even illogical, reason to say to the people of Quebec that they have been hurt by the constitutional amendment. It will have no logical objection to the Constitution.

The only ones who might be hurt are those who insist that federal power should be expanded. Is that the view of the government? The minister of state has said that he has no objection to compensation on an opting-out basis. Surely we can pass that amendment and make it virtually impossible for the Premier of Quebec to give any valid reason not to go along with the accord.

I would like to deal now with the matters before us concern­ing the Charter of Rights and Freedoms. In my office in the House of Commons and in my constituency office I have a framed copy of John Diefenbaker’s Bill of Rights. In a way, that Bill of Rights allows a government to change or alter rights if it specifically passes a statute to exempt a particular

[Page 13528]

item from the Bill of Rights. That Bill of Rights is looked upon proudly by my constituents and others who come to my office as an important charter of their rights, even though in that Bill of Rights Parliament reserved the right to restrict rights by specific amendment in a particular section of the statute. The charter before us now allows the same restriction on rights. It provides for a government to override some basic rights on a five-year basis. That means that the political process-not the judges-will determine where rights really stand. It is perhaps more restrictive than the Diefenbaker Bill of Rights in terms of the ability of Parliament or legislatures to alter, control or vary rights.

It has been suggested that the “notwithstanding Section 33” is not a good one. I suggest that while I am not as happy as I might be with “notwithstanding” sections, there is essentially no difference between that “notwithstanding” section and clauses in the Diefenbaker Bill of Rights. Therefore, when people say that they will not support this charter of rights because of Section 33, they should read the Diefenbaker Bill of Rights.

I am proud of the Diefenbaker Bill of Rights. It has flowing language which appeals to people. Perhaps one of the difficulties with the proposal which is before us is that the language could be better, perhaps more poetic.

However, this Charter of Rights and Freedoms is what John Diefenbaker would have liked to have seen entrenched in our Constitution. He tried to get approval for something like this, but found he could not. After more than a year, we may well be able to entrench basic rights in our Constitution, rights which are much like the rights in the Diefenbaker Bill of Rights.

I am concerned that there is not enough protection in the charter now before us for the rights of the family. It concerns me that on Friday the House defeated an amendment which would have made it clear that only Parliament could legislate with respect to the question of abortion. I believe we made a mistake in that respect.

I do not think that the charter as it is prevents Parliament from legislating on the matter of abortion, but there is a matter which should have been made clear. I would have been happier had the right to life of the unborn been protected in the charter. Perhaps it will be the subject of an amendment some time in the future.

I am troubled that the right to protection of property is not in the charter. I would like to have seen the protection of the right to property so it cannot be taken away without due process of law.

We still have our Bill of Rights in the province from which I come. That Bill of Rights is in place, and the right to own property is protected by the Bill of Rights of that province. If we had worked a little longer, perhaps we might have been able to entrench the right to own property in this Constitution. I very much appreciate the position of the Prime Minister when he says that we have worked long on this matter and that we should now approve the Constitution and patriate it from England with an amending formula, but with that amending formula and in the upcoming discussions perhaps we can entrench the right to hold property and not have it taken away without due process of law. I think that is possible.

I think it is possible to make other changes that hon. members from time to time have requested. There have been valid suggestions, but it is about time somewhere in the course of things that we moved with what we have done so far, finished what we have worked on and left other things which must be worked on to the next round of discussions, to the next round of negotiations and to the next round of debate, because if we debate and debate and debate, we will never accomplish anything.

When we pass statutes in this place, many of us have ideas which would improve them, but we pass them nevertheless, not because we think they are perfect but because they are steps in the direction in which we want to go. In the course of human work nothing is absolutely perfect, so while under Section 33 rights might be curtailed, while there are no property rights and while the rights of the unborn are not protected, this Charter of Rights and Freedoms is a pretty good effort. It may not be perfect. It is not perfect, but neither are we perfect. We should move ahead at this time so that we will have an opportunity to improve as we go. However, let us now move ahead because it is time to move ahead. We have had full discussion. We have had long committee hearings. We now have the agreement of nine of the ten provinces. That in itself is-evidence of massive consensus. We have massive consensus on what we presently have, and while it might be that none of us are absolutely satisfied with what we have, we are all generally satisfied. it would be wrong for someone to vote against this matter because of dissatisfaction with one item or two items. Those who might think that to vote against this resolution is to vote against the Prime Minister-and if it were there just to do that, I would do it myself-are wrong. They are wrong because the package before us is no longer the emanation of the Prime Minister. He may have been the driving force behind putting this resolution before Parliament but, after all, the government always has the right to introduce legislation and bring it forward. However, what is before us today is entirely different from what the Prime Minister brought before us. On the question of amendment alone, hon. members on this side will remember a non-confidence motion we proposed, that the Constitution of Canada be patriated with the Vancouver amending formula. That is exactly what we have. We will now have patriation of the Constitution, the British North America Act, after 114 years with the Vancouver consensus as an amending formula.

Mr. McDermid: Think of all the time we would have saved if they had listened to us.

Mr. Blenkarn: My hon. friend says, “Think of all the time we would have saved if they had listened to us.” They did listen to us.

Mr. McDermid: It took them a year.

[Page 13529]

Mr. Blenkarn: If we analyse the content of the package before us, we find that to a large extent the package was crafted by members of my party sitting in the constitutional committee, making suggestions in debate and, through their premiers, negotiating with the Prime Minister at federal provincial conferences. We have had a great input into what is here. Indeed, all members of the House had an input. This is not a package hammered through by an arrogant Prime Minister, although his insistence has been important to Canada because, without his insistence, we perhaps would not have come this far.

An hon. Member: Right on.

Mr. Blenkarn: It is important that we as a nation establish finally our total sovereignty. No matter how we look at it and no matter how we speak out, it has always been a problem for all of us when speaking to people from other countries and when being asked how we amend our Constitution. We have had to say that we pass a statute and send it off to Great Britain, and they rubber-stamp it. Maybe they do and maybe they do not, but what kind of sovereignty is it for a nation not to be able to amend its own Constitution on its own?

The resolution before us allows the amendment to the British North America Act to be renamed the Canada Act by us in Canada, with an amending formula calling for the consent and support of seven provinces and this House. That is an important step forward in the sovereignty of this nation. There are those who come from other lands who, although perhaps not born of British heritage, cannot say that they inherited rights, as I say I have. My rights go back to the time of the Magna Carta. There are people who come from lands where arrest in the middle of the night is not uncommon. There are people who come from lands where the right to stand up and speak one’s mind is unknown. There are people who come from lands where exercising the right to get together in large groups is illegal and exercising the right to print what they want to print or to speak out and say what they want to say lands them in the gulag.

Such people ask, and have always asked, where it says we in Canada can do these things, and I have pointed to the Bill of Rights. But these rights were not entrenched. This charter entrenches those rights, and while some of us may say that we have these rights and do not need to have them in writing, at least we can say to our constituents, to ourselves and to our children that we have rights. We can say we have the right to move about this country freely. We can leave this country freely if we want to. We can say what we want. We can write what we want. We can think what we want. We can gather together where we want. Those rights must be expressed. They are expressed in this charter, and I will be proud when I can hang this charter on the wall in my constituency office and send it to my constituents, because it is about time we had these rights entrenched in law. They are imperfect, perhaps, but they are entrenched for all Canadians.