Canada, House of Commons Debates, “Resolution Respecting Constitution Act”, 32nd Parl, 1st Sess (30 November 1981)

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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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13462 COMMON§__.Dl5_B_/§_'[ES
_ __ November 30, I981
Order Paper Questions
National Research Council Teleglobe Canada
Natural Sciences and Engineering Uranium Canada Limited
Research Council
Pilotage Authorities Via Rail Canada Inc.
Atlantic Pilotage Authority
Laurentian Pilotagc Authority
Great Lakes Pilotage Authority
Pacific Pilotagc Authority
Science Council of Canada
Social Sciences and Humanities
Research Council
Standards Council of Canada
Question N0. 3,196-—Mr. Herbert:
l. With reference to the answer to question no. 2,789. What is the basis of the
calculation of the cash payments to employees in those provinces where pay-
ments for health care are not made to the provincial health authorities?
2. In the last year for which the information is available, by province, what
amount was paid to the provincial health authorities or treasuries and what
amount was paid directly to public servants in the form ofcash payments?
Mr. Norman Kelly (Parliamentary Secretary to President
of the Treasury Board): 1. Employees and pensioners of the
federal government receive a benefit from the government as
employer in respect of the cost of the health care plan in their
respective provinces of residence.
In those provinces which do not levy provincial health
insurance premiums, the employer contributions are based on
the estimated per capita costs, for each individual province, for
those health care services insured under the provincial plans
and funded by the federal government and the provinces.
in Ontario, British Columbia, Alberta and the Yukon tcrri~
tory, part of the employer’s contribution may be made by
direct cash payments to employees whenever the premium is
less than the cmployer‘s contribution based on provincial per
capita cost of health care.
2. The government’s total expenditure, by province, for
fiscal year l980~81 in respect of this benefit program (includ~
ing contributions made to or on behalf of employees, members;
of the Armed Forces and RCMP, and pensioners), was as
Contributions paid direct to provincial authorities in
Province prcntiumdcvying provinces
British Columbia
9,24 l,86l .05
Yukon territory
P.E. l.
Nova Scotia
New Brunswick
3,398.2 l 7.62
Contributions paid direct to employees. etc.
S92,l 27.83
2,48 l ,498.78
Northwest Territories
liritish Columbia
Yukon Ton itory
Question No. 3,234-—Mr. Cossitt:
1. What are the rules and regulations pertaining to expense accounts or
expenses of a personal naltlrc inctirred by deputy ministers and being paid for
lroiu public funds?
2. Arc there guidelines laid down for deputy ministers in this regard and (a) if
so, what are they (b) if not, for what reason?
3. Does tho 3/)\'(‘rilnient intend to tll‘aW up Stltlll guidelines itntl (.1) it not, rt»
what reason tb} ifso, on what date?
Mr”. Norinari Kelly (l?’zu’liametttary Secretary to President
of the ’ll’re;tsury Board): l. Expenses of a personal nature
incurred by deputy ministers which are not the direct result of
zt program requirement are not reimbursable from public
2 No sptsciiic guidelines are laid clown for deputy ministers
in this regard; however, variotis administrative policies enunci-
atc rules .1rtcl rcgtilatioris with respect to travel, membership
fees, hospitality and relocation. These policies establish admis-
sible charges and limitations with 1″-aspect to the expenditure of
public funds for program reasons in each category, and are
applicable to all public s<:rvaitts.
3, The current gniclelines associated with each particular
policy arc considertzd itrlequatc; ‘:l;r: government does not
intend to afcvazlop specific: rules am? regulations pertaining
cxcltisivety to dcputy raiztistsrs.
Mr. fiirnititz l would £!Sl(, Madam 5‘-pealtcr. that the remain-
ing tf‘,‘(3S’.lO7lS bc allowed to stand.
I‘/izdzrira S1;~e:attc.=.’; The questions enumerated by the parlia-
riientar-y sec-r’ctary have l.»r:on .ens\.vc:’ed. Sihall the remaining
ItT'<t’~: inns: :=t’;rit:l’l
Some hon. Members: Agreed.
(i()‘/.7l;:’H’, i‘»llWlif,N’l[‘ URDFJRLS
[Er/g”i'<.’.l-l ‘i”§‘l’1:, :’.I$l‘l?iTI’F‘IJ””t”i’OI\l Rt’€StI>l.Ul’lOi\‘ i'(I§Sl’i’:t.’l’il\’t.’i COl\¢‘S’i”lTUTlON ACT, l98l
The House restinietl, front Friday, November 27, co11:;idcr>
alien nftitr arncndcfl t’.’l0′.lt’,/I 0.’ Mr. Chrétien:

TH/‘i“l’, W.»’:i;’i’_’l3lE.1i.§i ‘1‘ its ‘.v=_‘s’ c<;~r£:l§|;
;;z:isnd:’m:ms .‘-ma :.Dl’2-\ll.\lii\.lli of <‘ITi=,.’laiit;.
hive been ‘,§.z!’.’. by :5‘-a.:clia.-:m:r.~. ;i Iiiia
United §<lin[;»”,‘=’.l<‘> at tllc l”Jil.’,£¢Sié1€iL:‘ w
uonscni oi Czii .:2.=.i a; §
Ai\llT¥ ‘W.H.l-“IlU:ZAS it if; in accord \r.’iti1 illti
status of Camila as an indep:;ndz:nt Mali?
that Canadians be able tr: amend tlwiv €_.‘m'<~ stituiion in Canacia in all zespects; ANXB WHi£l¥.i3AS it is also dcsi”a.‘31¢: ‘£0 provide in this ilozlstitution of tlanarlz-; for the recognition of certain l’zuidan1cnm.1 rights and freedoms and to maize other amend- memzs to tiiai Cli;,nstit1.m»>n;
November ET‘ l‘:J8Z LI;’Q=,U(€l./ LFNS DEBATES l3463
The Constitulion
que le Parlement du Royaurne-Uni a
modifié a plusieurs reprises la Constitution
du Canada ii la demande ct avec lo consen-
iement de celuisci; 5
qua, de par le statut d‘Etat indépendant du
Canada, il est légitime que les Canadians
aient tout pouvoir pour modifier leur
Constitution au Canada;
qu’il est souhaitable d’inscrire dans la 10
Constitution du Canada la reconnaissance
dc certains droits et libertés fondamentaux
et d’y apporter d‘autres modifications,
A r:-:sy.”n=:ctf’ul u<\icl,rcss; ‘vi: pveseiiwl to Hm” £5 ii est proposé que soil présentée respectueu- 1*/.lajasty the 5%:-an in Hm f(>ll()‘I\’l¥\,l§ words: scment 5 Sa Majesté la Rein:-: l’admss<: dont 15
la leneur suit :
To the (,}’uoen’s Most Eixoellcni. Majesty: A sa Tyég Excgllemg Majggté la Rgine,
Most Gra.<:i.ous Sovereign: Trés Graciguse Souvcrainc ; ‘We, Your E‘/lajesty/K; 10f/éll f§lli)jC(Ii5i7 the Nous, membres de la Chambre dcs com- House of Commons of élanada in P‘az’lia’=-nent 20 munes du Canada réunis en Parlemeni, fidél€S20 assembled, rszs-pectl‘ullf,’ npproacli Your sujets de Votre Majesté, demandons respec- Majesty, requesting that you may graciously tueusementa Votre TrésGracicuse l\/lajesté de be pleased to cause I0 be laid |>:>i‘i>rc: the bienvouloirfairedéposerdevanilo Parlement
Parliament oitlxe United l<.ing(lon1 a measure du Royaume-Uniunprojetdc loi ainsiconcu :
containing Ilia recitals and clauses 2’i<—;i”cinaftc-1″IZ5
set forth:

13454 ‘ COMMONS DEBATES November 30, 1981
AH, I 98 I
Termination of
power lo
legislate for
French version
Short title
The Constitution
An Act to give effect to a request by the
Senate and House of Commons of
Whereas Canada has requested and con-
sented to the enactment of an Act of the
Parliament of the United Kingdom to give
effect to the provisions hereinafter set forth
and the Senate and the House of Commons
of Canada in Parliament assembled have
submitted an address to Her MajestylO
requesting that Her Majesty may graciously
be pleased to cause a Bill to be laid before
the Parliament of the United Kingdom for
that purpose.
Loi donnant suite a une demande du Sénat et
de la Chambre des communes du
Sa Trés Excellente Majesté la Reine,
considérant : 5
qu’a la demande et avec le consentement
du Canada, le Parlement du Royaume-Uni
est invité a adopter une loi visant a donner
effet aux dispositions énoncées ci-apres et
que le Sénat et la Chambre des communes IO
du Canada réunis en Parlement ont pre-
senté une adresse demandant a Sa Tres
Gracieuse Majesté de bien vouloir faire
déposer devant le Parlement du Royaume-
Uni un projet de loi a cette fin, 15
Be it therefore enacted by the Queen’s l5sur l‘avis et du consentement des Lords spiri-
Most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual
and Temporal, and Commons, in this present
Parliament assembled, and by the authority
of the same, as follows:
I. The Constitution Act, 1981 set out in
Schedule B to this Act is hereby enacted for
and shall have the force of law in Canada
and shall come into force as provided in that
2. No Act of the Parliament of the United
Kingdom passed after the Constitution Act,
I981 comes into force shall extend to
Canada as part of its law.
tuels et temporels et des Communes réunis
en Parlement, et par l’autorité de celui-ci,
1. La Loi constirutionnelle de I981, énon- 20/\<19t=fiwi_d¢I=\ cée a l‘annexe B, est édictée pour le Canada et y a force de loi. Elle entre en vigueur I98! conformément a ses dispositions. 2. Les lois adoptées par le Parlement du Ccfisfltivfl dv Royaume-Uni apres l‘entrée en vigueur de la 25f’§’g’§‘f§’,’Z,d;o,,,,c Loi constitutionnelle de I981 ne font pas Canada partie du droit du Canada. 3. So far as it is not contained in Schedule 30 3. La partie de la version francaise de la l/Zrsigvc . . . r lS B, the French version of this Act is set out in Schedule A to this Act and has the same authority in Canada as the English version thereof. présente loi qui figure s l’annexe A a force “9 de loi au Canada au meme titre que la 30 version anglaise correspondante. 4. This Act may be cited as the Canada 35 4. Titre abrégé de la présente loi : Loi sur Tiucabrésé Act. Ie Canada, November 30, I981 ‘ COMMONS DEBATES 13465 Rights and freedoms in Canada Fundamental freedoms Democratic rights of citizens Maximum duration of legislative bodies Continuation in special circumstances SCHEDULE B CONSTITUTION ACT, I981 PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS Whereas Canada is founded upon princi- ples that recognize the supremacy of God and the rule of law: Guarantee of Rights and Freedoms 1. The Canadian Charter of Rights and The Conszimzion AN N EX E B LOI CONSTITUTIONNELLE DE 1981 PARTIE I CHARTE CANADIENNE DES DROITS ET LIBERTES Attendu que le Canada est fondé sur des principes qui reconnaissent la suprématie de Dieu et la primauté du droit 1 Garanlie des droits el Iiberrés l. La Charte canadienne des drafts et Freedoms guarantees the rights and free- Sliberlés garantit les droits et libertés qui y doms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and demo- cratic society. F undamenlal Freedoms sont énoncés. Ils ne peuvent étre restreints que par une regle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique. Liberlésfondamentales 2. Everyone has the following fundamen- l0 2. Chacun a les libertés fondamentales tal freedoms: (a) freedom of conscience and religion; (I1) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; 15 (c) freedom of peaceful assembly; and (d) freedom of association. Democratic Rights suivantes : a) liberté de conscience et de religion; b) liberté dc pensée, de croyance, d’opi- nion et d‘expression, y compris la liberté de la presse et des autres moyens de communication; c) liberté de réunion pacifique; a’) liberté d’association. Droils démocratiques Droits cl 5 libcrtés an Canada l0 1 Libcrlés fondamcnialcs 5 3. Every citizen of Canada has the right to 3. Tout citoyen canadien a le droit de vote 20 Dmits vote in an election of members of the House et est eligible aux élections législatives fédé- of Commons or of a legislative assembly and 20 rales ou provinciales. to be qualified for membership therein. 4. (1) No House of Commons and no 4. (l) Le mandat maximal de la Chambre legislative assembly shall continue for longer des communes et des assemblées législatives démocraiiques des citoyens Mandat maximal des assemblécs than five years from the date fixed for the est de cinq ans a compter de la date fixée 25 return of the writs at a general election of its 25 pour le retour des brefs relatifs aux elections members. générales correspondantes. (2) In time of real or apprehended war, (2) Le mandatde la Chambre des commu- fgglffiilivns invasion or insurrection, a House of Com- nes ou celui d’une assemblée legislative peut mons may be continued by Parliament and a étre prolongé respectivement par le Parle- 30 legislative assembly may be continued by the 30 ment ou par la législature en question au- legislature beyond five years if such con- dela de cinq ans en cas de guerre, d’invasion tinuation is not opposed by the votes of more ou d’insurrection, réelles ou appréhendées, than one-third of the members of the House pourvu que cette prolongation ne fasse pas 13466 COMMONS DEBATES November 30, 1981 Annual sitting of legislative bodies Mobility of citizens Rights to move and gain livelihood Limitation Mfirmative action progra rns Life, liberty and security of person Search or seizure Detention or imprisonment The Constitution of Commons or the legislative assembly, as the case may be. l’objet d’une opposition exprimée par les voix de plus du tiers des députés de la Chambre des communes ou de l’assemblée legislative. 5. Le Parlement et les législatures tien- Sémwnflvtlle nent une séance au moins une fois tous les 5 5 douze mois. 5. There shall be a sitting of Parliament and of each legislature at least once every twelve months. Mobility Rights Liberté de circulation et d’e’tablissement 6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. 6. (l) Tout citoyen canadien a le droit de I-_i\>¢t1lél_<1¢ demeurer au Canada, d’y entrer ou d‘en mm“ 3 ‘°” sortir. (2) Tout citoyen canadien et toute per-1O(%j}>=rgI<=[
person who has the status of a permanent sonne ayant le statut de resident permanent M ‘Ss°”‘°“’
resident of Canada has the right 10 au Canada ont le droit :
(a) to move to and take up residence in a) de se déplacer dans tout le pays et
any province; and d’établir leur residence dans toute pro-
(b) to pursue the gaining of a livelihood in ‘/”W5; _ q 15
any province. b) dc gagner leur vie dans toute province.
(3) The rights specified in subsection (2)15 (3) Les droits mentionnés au paragraphe Rcfilricliefl
are subject to (2) sont subordonnés :
(a) any laws or practices of general a) aux lois et usages d‘application gene-
application in force in a province other rale en vigueur dans une province donnée, 20
than those that discriminate among per- s’ils n‘établissent entre les personnes
sons primarily on the basis of province of 20 aucune distinction fondée principalement
present or previous residence; and sur la province de residence antérieure ou
(b) any laws providing for reasonable resi- acmenei
dcncy requirements as a qualification for b) aux lois prévoyant de justes conditions 25
the receipt of publicly provided social de residence en vue dc l’obtention des ser-
services. 25 vices sociaux publics.
(4) Subsections (2) and (3) do not pre— (4) Les paragraphes (2) et (3) n’ont pas Prosrammcsdc
elude any law, program or activity that has pour objet d‘interdire les lois, programmes ou f;§i’§f:‘°“
as its object the amelioration in a province of activités destinés a améliorer, dans une pro- 30
conditions of individuals in that province who vince, la situation d’individus défavorisés
are socially or economically disadvantaged if 30socialement ou économiquement, si le taux
the rate of employment in that province is d‘emploi dans la province est inféricur a la
below the rate of employment in Canada. moyenne nationale.
(2) Every citizen of Canada and every
Legal Rights Garanties juridiques
7. Everyone has the right to life, liberty 7. Chacun a droit a la vie, a la liberté et a 35‘/jc |§bP”¢ H
and security of the person and the right not la sécurite de sa personne; il ne peut etre S°°“'”°
to be deprived thereof except in accordance 35 porté atteinte a ce droit qu’en conformité
with the principles of fundamental justice. avec les principes dejustice fondamentale.
8. Everyone has the right to be secure 8. Chacun a droit £1 la protection contre Fvvilllflmou
1 4 – t ~ – ~ * 5 I
against unreasonable search or seizure. les fouilles, les perquisitions ou les saisies 4Of§;’S‘fu”
9. Everyone has the right not to be arbi- 9. Chacun a droit a la protection contre la Dnitcflgxigu
trarily detained or imprisoned. 40 détention ou Pemprisonnement arbitraires. f,,§,[‘ “

November 30, 1981 ‘ COMMONS DEBATES
A”@$\_<>Y 10. Everyone has the right on arrest or 10. Chacun ale droit, en cas d’arrestation
detention – , .
detention cu de detention :
Proceedings in
criminal and h
penal matters
(a) to be informed promptly of the rea-
sons therefor;
(b) to retain and instruct counsel without 5
delay and to be informed of that right; and
(0) to have the validity of the detention
determined by way of habeas corpus and
to be released if the detention is not
lawful. 10
ll. Any person charged with an offence
as the right
(a) to be informed without unreasonable
delay of the specific offence;
(b) to be tried within a reasonable time; 15
(c) not to be compelled to be a witness in
proceedings against that person in respect
of the offence;
(d) to be presumed innocent until proven
guilty according to law in a fair and public 20
hearing by an independent and impartial
(e) not to be denied reasonable bail with~
outjust cause;
(I) except in the case of an offence under 25
military law tried before a military tri-
bunal, to the benefit of trial by jury where
the maximum punishment for the offence
is imprisonment for five years or a more
severe punishment; 30
(g) not to be found guilty on account of
any act or omission unless, at the time of
the act or omission, it constituted an
offence under Canadian or international
law or was criminal according to the gen- 35
eral principles of law recognized by the
community of nations;
(h) if finally acquitted of the offence, not
to be tried for it again and, if finally found
guilty and punished for the offence, not to 40
be tried or punished for it again; and
(i) if found guilty of the offence and if the
punishment for the offence has been varied
between the time of commission and the
time of sentencing, to the benefit of the45
lesser punishment.
The Conslilulion
a) d’etre informe dans les plus brefs delais
des motifs de son arrestation ou de sa
detention; 5
b) d’avoir recours sans delai a l’assistance
d’un avocat et d’etre informé de ce droit;
0) de faire controler, par habeas corpus,
la legalite de sa detention et d’obtenir, le
cas echeant, sa liberation. 10
Arrcstution ou
ll. Tout inculpe a le droit : Affair“
crimrncllcs ct
a) d’etre informe sans delai anormal de pénales
l’infraction precise qu’on lui reproche;
b) d‘etre jugé dans un delai raisonnable;
c) de ne pas étre contraint de temoigner 15
contre lui-meme dans toute poursuite
intentee contre lui pour l’infraction qu’on
lui reproche;
d) d’etre presume innocent tant qu’il n‘est
pas declare coupable, conformement a la 20
loi, par un tribunal independant et impar-
tial 5 l’issue d’un proces public et
e) de ne pas etre prive sans juste cause
d’une mise en liberte assortie d’un caution- 25
nement raisonnable;
f) sauf s’il s‘agit d’une infraction relevant
de la justice militaire, de beneficier d’un
proces avec jury lorsque la peine maximale
prevue pour l‘infraction dont il est accuse 30
est un emprisonnement de cinq ans ou une
peine plus grave;
g) de ne pas etre declare coupable en
raison d‘une action ou d’une omission qui,
au moment ou elle est survenue, ne consti- 35
tuait pas une infraction d’apres le droit
interne du Canada ou le droit international
et n’avait pas de caractere criminel d’apres
les principes generaux de droit reconnus
par l’ensemble des nations; 40
h) d’une part de ne pas etre juge de nou-
veau pour une infraction dont il a éte
definitivement acquitte, d’autre part de ne
pas etre juge ni puni de nouveau pour une
infraction dont il a ete definitivement45
declare coupable et puni;
i) de beneficier de la peine la moins
severe, lorsque la peine qui sanctionne l’in-
fraction dont il est declare coupable est

COMMONS DEBATES November 30. 1981
Treatment or
Equality before
and under law
und equal
protection and
benefit of law
ltinguagcx of
languages of
New Brunswick
The Constitution
modifiee entre le moment de la perpetra-
tion de l’infraction et celui de la sentence.
l2. Everyone has the right not to be sub- 12. Chacun a droit a la protection contre ¢”1=1“\é
jected to any cruel and unusual treatment or tous traitements ou peines cruels et inusites.
13. A witness who testifies in any proceed- 13. Chacun a droit a ce qu’aucun témoi~ 5_T@”1_@i_s”us¢
ings has the right not to have any incriminat- 5 gnage incriminant qu’il donne ne soit utilise ‘“””“”“””
ing evidence so given used to incriminate pour l’incriminer dans d‘autres procedures,
that witness in any other proceedings, except sauf lors de poursuites pour parjure ou pour
in a prosecution for perjury or for the giving temoignages contradictoires,
of contradictory evidence.
14. A party or witness in any proceedings 10 14. La partie ou le temoin qui ne peuvent IO lnwrrrfiw
who does not understand or speak the lan- suivre les procedures, soit parce qu’ils ne
guage in which the proceedings are conduct- comprennent pas ou ne parlent pas la langue
ed or who is deaf has the right to the assist- employee, soit parce qu’ils sont atteints de
ance of an interpreter. surdité, ont droit a l’assistance d‘un inter-
prete. l5
Equality Rights Droils Z1 /’égalité
bgalite devant
la loi, égttlité dc
bénéfice at
protection égalc
15. (1) Every individual is equal before 15 15. (1) La loi ne fait acception de per-
and under the law and has the right to the sonne et s’applique également ts tous, et tous
equal protection and equal benefit of the law ont droit a la meme protection et au meme _
without discrimination and, in particular, benéfice de la loi, indépendamment de toute d°’“’°’
without discrimination based on race, nation- discrimination, notamment des discrimina- 20
al or ethnic origin, colour, religion, sex, age 2Otions fondees sur la race, l’origine natiortale
or mental or physical disability. ou ethnique, la couleur, la religion, le sexe,
Page ou les deficiences mentales ou physi-
(2) Le paragraphe (1) n’a pas pour effet25 Pwswmincsds
d’interdire les lois, programmes ou activités §;:i’;’|‘Z”°“
the amelioration of conditions of disadvan- destinés a améliorer la situation d‘individus
taged individuals or groups including those 25 ou de groupes défavorises, notamment du fait
that are disadvantaged because of race, na- de leur race, de leur origine nationale ou
tional or ethnic origin, colour, religion, sex, ethnique, de leur couleur, de leur religion, de 30
age or mental or physical disability. leur sexe, de leur age ou de leurs deficiences
mentales ou physiques.
(2) Subsection (1) does not preclude any
law, program or activity that has as its object
Official Languages of Canada Langues officielles du Canada
16. (l) English and French are the official 16. (1) Le francais et l’anglais sont les Lfltisw
languages of Canada and have equality of30langues officielles du Canada; ils ont un 2-f;‘,f;f,’:,“d“
status and equal rights and privileges as to statut et des droits et privileges egaux quant 35
their use in all institutions of the Parliament a leur usage dans les institutions du Parle-
and government of Canada. ment et du gouvernement du Canada.
(2) English and French are the official (2) Le francais et l’anglais sont les langues I-=ms“¢5
languages of New Brunswick and have 35 officielles du Nouveau-Brunswick; ils ont un
equality of status and equal rights and privi- statut et des droits et privileges egaux quant/10 Brimswiuk
leges as to their use in all institutions of the a leur usage dans les institutions de la Legis-

‘ November 30, 1981 COMMONS DEBATES ____w_ |~;;q;,\;
of status and
Proceedings of
Proceedings of
New Brunswick
statutes and
New Brunswick
statutes and
Proceedings in
established by
Proceedings in
New Brunswick
tions by public
with federal
The C0r1.$’Iiluti0!t
legislature and government of New Bruns~ lature et du gouvernement du Nouveau-
wick. Brunswick.
(3) Nothing in this Charter limits the (3) La presente charte ne limite pas le Ffrostsisionvers
authority of Parliament or a legislature to pouvoir du Parlement et des legislatures do ‘¢*‘“”‘°
advance the equality of status or use of Eng- 5 favoriser la progression vers l’egalite de 5
lish and French. statut ou d‘usage du francais et de l’anglais.
17. (1) Everyone has the right to use Eng- 17. (1) Chacun a le droit d‘employer le Era;/eflxd”
lish or French in any debates and other frangais on l’anglais dans les debats et tra- fume“
proceedings of Parliament. vaux du Parlement.
(2) Everyone has the right to use English 10 (2) Chacun a le droit d’employer le fran- 1O’fifl’§l::u<:: 1?“ or French in any debates and other proceed- cais ou 1’anglais dans les debats et travaux de 8 Nouveau- ings of the legislature of New Brunswick. la Legislature du Nouveau-Brunswick. Brunswick Documents parlementaires 18. (1) The statutes, records and journals 18. (1) Les lois, les archives, les comptes of Parliament shall be printed and published rendus et les proces-verbaux du Parlement in English and French and both languagel5sont imprimes et publiés en francais et en 15 versions are equally authoritative. anglais, les deux versions des lois ayant ega- lement force de loi et celles des autres docu- ments ayant meme valeur. (2) Les lois, les archives, les comptes D°¢9″)”\\§d= rendus et les proces-verbaux de la Legisla- 20§i,L;§§ifi::,’5 printed and published in English and French ture du Nouveau-Brunswick sont imprimes Brunswick and both language versions are equally 2Oet publiés en frangais et en anglais, les deux authoritative. versions des lois ayant egalement force de loi et celles des autres documents ayant meme valeur. 25 (2) The statutes, records and journals of the legislature of New Brunswick shall be 19. (1) Chacun a le droit d‘employer le francais ou l’anglais dans toutes les affaires dont sont saisis les tribunaux etablis par le Parlement et dans tous les actes de procedure qui en découlent. 30 (2) Chacun a le droit d’employer le fran- cais ou l’anglais dans toutes les affaires dont sont saisis les tribunaux du Nouveau-Bruns- wick et dans tous les actes de procedure qui en découlent. 35 19. (1) Either English or French may be §’3§f”‘:‘:;€§ used by any person in, or in any pleading in ‘ or process issuing from, any court established by Parliament. 25 e s tribunaux etablis par le Parlemcnt Procedures devant les tribunaux du Nnuveau~ Brunswick (2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick. Communica- tions entre les administres ct les institutions fédérales 20. (1) Any member of the public in 30 20. (1) Le public a, au Canada, droit a Canada has the right to communicate with, l’emploi du francais ou de l‘anglais pour and to receive available services from, any communiquer avec 1e siege ou l’administra- head or central office of an institution of the tion centrale des institutions du Parlement ou Parliament or government of Canada in Eng- du gouvernement du Canada ou pour en 40 lish or French, and has the same right with 35 recevoir les services; il a le meme droit a respect to any other office of any such insti- l’egard de tout autre bureau de ces institu- tution where tions la cu, selon le cas : (a) there is a significant demand for com- a) l’emploi du francais ou de l’anglais fait munications with and services from that 1’objet d’une demandeimportante; 45 °m°°i” 5“°hlan8‘1ag°§°l’ 40 b) l’emploi du francais et de 1‘anglais se justifie par la vocation du bureau. 13470 ( COMMONS DEBATES November 30, 1981 ~ Communica- tions by public with New Brunswick institutions Continuation of existing constitutional provisions Rights and privileges prcscrved The Constitution (b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French. (2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French. 21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other 15qui existent ou sont maintenus aux termes 10 provision of the Constitution of Canada. 22. Nothing in sections l6to 20 abrogates 22. Les articles 16 a 20 n’ont pas pour Y>mit§Pri§¢ti¢§
or derogates from any legal or customary
5 (2) Le public a, au Nouveau-Brunswick,
droit a l’emploi du francais ou de l‘anglais
pour communiquer avec tout bureau des ins-
titutions de la legislature ou du gouverne-
ment ou pour en recevoir les services.
21. Les articles 16 a 20 n‘ont pas pour
effet, en ce qui a trait a la langue francaise
ou anglaise ou at ces deux langues, de porter
atteinte aux droits, privileges ou obligations
d’une autre disposition de la Constitution du
effet de porter atteinte aux droits et privile-
right or privilege acquired or enjoyed either ges, antérieurs ou postérieurs a l’entréc en
before or after the coming into force of this 20 vigueur de la présente charte et découlant de
Charter with respect to any language that is la loi ou de la coutume, des langues autres
not English or French.
Minority Language Educational Rights
que le frangais ou l‘anglais.
Droits 21 l’t’nstrucli0n dans Ia langue de Ia
tions cnirc les
administrés ct
les institutions
du Nouveau-
Mainticn en
vigueur dc
rt ‘
Pazisuisc of 23. (l) Citizens of Canada 23. (1) Les citoyens canadiens 1 (l;§”e‘“¢ F
ll’lS HIC I011 lflS DC l
(a) whose first language learned and still a) dont la premiere langue apprise et2O Y on
understood is that of the English or French 25 encore comprise est celle de la minorité
linguistic minority population of the prov- francophone ou anglophone de la province
ince in which they reside, or
(b) who have received their primary b) qui ont recu leur instruction, au niveau
ou ils resident,
school instruction in Canada in English or primaire, en francais ou en anglais au 25
French and reside in a province where the 30 Canada et qui resident dans une province
language in which they received that oii la languc danslaquelleils ontrecu cette
instruction is the language of the English instruction est celle de la minorité franco-
or French linguistic minority population of phone ou anglophone de la province,
the PY°‘/”166, ont, dans l’un ou l’autre cas, le droit d’y faire 30
have the right to have their children receive 35 instruire leurs enfants, aux niveaux primaire
primary and secondary school instruction in et secondaire, dans cette langue.
that language in that province.
<3°”””””Y QT (2) Citizens of Canada of whom any child (2) Les citoyens canadiens dont un enfant Cofltinvité
language . . . . . . 4 4 . d‘cmploidc la
i,,,l,uc,;<,,, has received or is receiving primary or a recu ou recoit son instruction, air niveau |a,,guc
secondary school instruction in English or 40 primaire ou secondaire, en francais ou en 35-im§lru¢ti<>”
French in Canada, have the right to have all
anglais au Canada ont le droit de faire ins-
their children receive primary and secondary truire tous leurs enfants, aux niveaux pri-
school instruction in the same language maire et secondaire, dans la langue de cette

November 30, 198i COMMONS DEBATES 13471
where numbers
Enforcement of
rights a nd
f rccdorns
Exclusion of
ofjustice into
rights and
freedoms not
affected by
Other rights
and freedoms
not affected by
(3) The right of citizens of Canada under
subsections (I) and (2) to have their children
receive primary and secondary school
instruction in the language of the English or
French linguistic minority population of a
(a) applies wherever in the province the
number of children of citizens who have
such a right is sufficient to warrant the
provision to them out of public funds of
minority language instruction; and
(I2) includes, where the number of those
children so warrants, the right to have
them receive that instruction in minority
language educational facilities provided
out of public funds.
24. (l) Anyone whose rights or freedoms,
as guaranteed by this Charter, have been
infringed or denied may apply to a court of
The Consriru/ion
(3) Le droit reconnu aux citoyens cana- 1″§”n@a\’°”
par le nombre
diens par les paragraphes (1) et (2) de faire
instruire leurs enfants, aux niveaux primaire
et secondaire, dans la langue de la minorite
5 francophone ou anglophone d’une province : 5
a) s‘exerce partout dans la province ou le
nombre des enfants des citoyens qui ont ce
droit est suffisant pour justifier a leur
endroit la prestation, sur les fonds publics,
10 de Pinstruction dans la langue de la10
b) comprend, lorsque le nombre de ces
enfants le justifie, le droit de les faire
instruire dans des établissements d’ensei-
15 gnement de la minorite linguistique finan- l5
ces sur les fonds publics.
24. (l) Toute personne, victime de viola-
tion ou de negation des droits ou libertes qui dmsc, mmw,
lui sont garantis par la présente charte, peut
competent jurisdiction to obtain such remedy 20 s‘adresser a un tribunal competent pour obte- 20
as the court considers appropriate and just in nir la reparation que le tribunal estime con-
the circumstances. venablc ct juste eu egard aux circonstances.
(2) Where, in proceedings under subsec- (2) Lorsque, dans une instance visee au Lffcscvabililé
. . . elements de
tion (1), a court concludes that evidence was paragraphe (l), le tribunal a conclu que des pmm qui
obtained in a manner that infringed or Z5 elements de preuve ont eté obtenus dans des 25 risqumiynidc
denied any rights or freedoms guaranteed by conditions qui portent atteinte aux droits ou
this Charter, the evidence shall be excluded libertés garantis par la presente charte, ces delaiusticv
if it is established that, having regard to all elements de preuve sont ecartes s’il est établi,
the circumstances, the admission of it in the eu egard aux circonstances, que leur utilisa-
proceedings would bring the administration 3Otion est susceptible de déconsiderer l’admi-30
ofjustice into disrepute. nistration de la justice.
General Dispositions générales
25. The guarantee in this Charter of cer— 25. Le fait que la présente charte garantit giziigtzrintlffléfi
tain rights and freedoms shall not be con- certains droits et libertés ne porte pas dcsaulochloneg
strued so as to abrogate or derogate from any atteinte aux droits ou libertés — ancestraux,
aboriginal, treaty or other rights or freedoms 35 issus de traités ou autres —— des peuples 35
that pertain to the aboriginal peoples of autochtones du Canada, notamment:
Canada including a) aux droits ou libertés reoonnus par la
(a) any rights or freedoms that have been Proclamation royale du 7 octobre 1763;
Te¢°gniZ¢d by lnfi R°Yal Pfmlnmalinn °f b) aux droits ou libertés acquis par regio-
O¢t0b¢F 7» 1763; and 40 ment de revendications territoriales. 40
(b) any rights or freedoms that may be
acquired by the aboriginal peoples of
Canada by way of land claims settlement.
26. The guarantee in this Charter of cer— 26. Le fait que la présente charte garantit
tain rights and freedoms shall not be con- 45 certains droits et libertés ne constitue pas “bang, ‘

– COMMONS DEBATES November 30, 1981
equally to both
certain schools
Application to
tcrritorics and
aiii lioriiics
powers not
Application of
where express
The Consriiurion
strued as denying the existence of any other une negation des autres droits ou libertés qui
rights or freedoms that exist in Canada. existent au Canada.
27. This Charter shall be interpreted in a 27. Toute interpretation de la présente Mainiiendu
manner consistent with the preservation and charte doit concorder avec l’objectif de pro-
enhancement of the multicultural heritage of Smouvoir le maintien et la valorisation du 5
Canadians. patrimoine multiculturel des Canadiens.
28. Notwithstanding anything in this 28. Indépendamment des autres disposi- Esaliié dc
Charter, the rights and freedoms referred to tions de la présente charte. les droits et liber- §f§‘,’;‘;,Sf§cs
in it are guaranteed equally to male and tés qui y sont mentionnés sont garantis égale- dwxscxcs
female persons. lOment aux personnes des deux sexes. 10
29. Nothing in this Charter abrogates or 29. Les dispositions de la présente charte 2/lfliri_iisr;‘d_¢rs_
derogates from any rights or privileges guar- ne portent ‘pas atteinte aux droits ou privile-
anteed by or under the Constitution of ges garantis en vertu de la Constitution du
Canada in respect of denominational, sepa- Canada concernant les écoles séparées et
rate or dissentient schools. l5autres écoles confessionnelles. 15
30. A reference in this Charter to a prov- 30. Dans la présente charte, les disposi- /\i>i?\i¢5\li<>”M
ince or to the legislative assembly or legisla- tions qui visent les provinces, leur legislature ‘°””°”°“
ture of a province shall be deemed to include ou leur assemblée legislative visent égale-
a reference to the Yukon Territory and the ment le territoire du Yukon, les territoires du
Northwest Territories, or to the appropriate 2ONord-Ouest ou leurs autorités législatives 20
legislative authority thereof, as the case may compétentes.
31. Nothing in this Charter extends the 31. La présente charte n’élargit pas les
legislative powers ofany body or authority. competences législatives dc quelque orga~
nisme ou autorité que ce soit.
ment des
Application of Charter Application de la charte
32. (1) This Charter applies 25 32. (1) La présente charte s’applique: 25 f}iici;ljf1:\ivnd¢
(a) to the Parliament and government of a) au Parlement et au gouvernement du A ‘re
Canada in respect of all matters within the Canada, pour tous les domaines relevant
authority of Parliament including all mat- du Parlement, y compris ceux qui ooncer~
ters relating to the Yukon Territory and nent le territoire du Yukon et les territoi-
Northwest Territories; and 30 res du Nord-Oucst; 30
(b) to the legislature and government of b) it la legislature et au gouvernement de
each province in respect of all matters chaque province, pour tous les domaines
within the authority of the legislature of relevant de cette legislature.
each province.
(2) Notwithstanding subsection (1), sec- 35 (2) Par derogation au paragraphe (I), l‘ar- Rwristisn
tion 15 shall not have effect until three years ticlc I5 n’a d’effet que trois ans apres l‘en~ 35
after this section comes into force. tree en vigueur du present article.
33. (1) Parliament or the legislature ofa 33. (l) Le Parlement ou la legislature Qérusliiivflrlit
province may expressly declare in an Act of d’une province peut adopter une loi oii il est
Parliament or of the legislature, as the case 4Oexpressément déclaré que celle~ci ou une de
may be, that the Act or a provision thereof ses dispositions a effet indépendamment4O
shall operate notwithstanding a provision d’une disposition donnée de Particle 2 ou des
included in section 2 or sections 7 to 15 of articles 7 a 15 de la présentc charte.
this Charter.

November 30, 198] – COMMONS DEBATES 13473
Operation of
Five year
Five year
Recognition of
aboriginal and
treaty rights
Definition of
peoples of
Commitment to
promote equal
The Constitution
(2) An Act or a provision of an Act in (2) La loi ou la disposition qui fait l’objet
respect of which a declaration made under d’une declaration conforme au present article
this section is in effect shall have such opera- ct en vigueur a l‘effet qu’elle aurait sauf la
tion as it would have but for the provision of disposition en cause de la charte.
this Charter referred to in the declaration. 5
(3) A declaration made under subsection (3) La declaration visée au paragraphe (1)
(1) shall cease to have effect five years after cesse d’avoir effet a la date qui y est précisee
it comes into force or on such earlier date as ou, au plus tard, cinq ans apres sort entree en
may be specified in the declaration. vigueur.
Effct dc la
5 Duréc at
(4) Parliament or a legislature of a prov-10 (4) Le Parlement ou une legislature peut _
ince may re-enact a declaration made under adopter de nouveau une declaration visee au
subsection (1). paragraphe (1).
(5) Subsection (3) applies in respect of a (5) Le paragraphe (3) s‘applique a toute
re-enactment made under subsection (4). declaration adoptée sous le regime du para-
graphe (4).
Durée dc
Citation Titre
34. This Part may be cited as the Canadi— 15 34. Titre de la presente partie : Charte l5Ti\r=
an Charter of Rights and Freedoms. canadienne des droits et libertés.
des droits
existants des
(2) In this Act, “aboriginal peoples of20 (2) Dans la présente loi, <‘<i
15(2) est sans effet dans une province don’tl5
l’assemblée legislative a, avant la prise dc Ia
proclamation, exprime son desaccord par une
resolution adoptee a la majorite des cleputes,
sauf si cette assemblee, par resolution égale-
2Oment adoptee it la majorite, revient sur son 20
desaccord et autorise la modification.
(4) A resolution of dissent made for the (4) La resolution de desaccord visee au L-Pvéedud
purposes of subsection (3) may be revoked at 25 paragraphe (3) peut etre revoquee a tout mm’
moment, independamment dc la date de la
proclamation a laquelle elle se rapporte. 25
39. (1) La proclamation visée au paragra- Rcetiifliefl
phe 38(1) ne peut etre prise dans I’année
3Osuivant l’adoption de la resolution a l’origine
de la procedure de modification que si l’as-
thercunder, unless the legislative assembly of scmblec legislative de chaque province a3O
each province has previously adopted a reso-
lution of assent or dissent.
idem (2) A proclamation shall not be issued
under subsection 38(1) after the expiration
of three years from the adoption of the reso-
lution initiating the amendment procedure
40. Where an amendment is made under
subsection 38(1) that transfers provincial
legislative powers relating to education or
other cultural matters from provincial legis-
latures to Parliament, Canada shall provide
reasonable compensation to any province to
which the amendment does not apply.
Amendment by
comm Canada in relation to the following matters
préalablement adopte une resolution d’agre-
ment ou de desaccord.
35 (2) La proclamation visée au paragraphe Idem
38(1) ne peut étre prise que dans les trois ans
suivant l’adoption de la resolution a l’origine35
de la procedure de modification.
40 40. Le Canada fournit une juste compen- Coitipemiivn
sation aux provinces auxquelles ne s’applique
pas une modification faite conformement au
paragraphe 38(1) et relative, en matiere 40
d’éducation ou dans d‘autres domaines cultu-
45 rels, a un transfert dc competences legislati-
ves provinciales au Parlement.
41. An amendment to the Constitution of 41. Toute modification de la Constitution C<>“$_¢”\¢”i¢=\\
du Canada portant sur les questions suivan~45

13476 COMMONS DEBATES November 30, 1981
The Constitution
may be made by proclamation issued by the
Governor General under the Great Seal of
Canada only where authorized by resolutions
of the Senate and House of Commons and of
the legislative assembly of each province:
(a) the office of the Queen, the Governor
General and the Lieutenant Governor of a
(b) the right of a province to a number of
members in the House of Commons not 10
less than the number of Senators by which
the province is entitled to be represented at
the time this Part comes into force;
(c) subject to section 43, the use of the
English or the French language;
(d) the composition of the Supreme Court
of Canada; and
(e) an amendment to this Part.
ters may be made only in accordance with
subsection 38(1):
(a) the principle of proportionate
representation of the provinces in the
House of Commons prescribed by the25
Constitution of Canada;
(b) the powers of the Senate and the
method of selecting Senators;
(0) the number of members by which a
province is entitled to be represented in the 30
Senate and the residence qualifications of
(d) subject to paragraph 41(d), the
Supreme Court of Canada;
(e) the extension of existing provinces into 35
the territories; and
(f) notwithstanding any other law or prac-
tice, the establishment of new provinces.
(2) Subsections 38(2) to (4) do not apply
tes se fait par proclamation du gouverneur
general sous le grand sceau du Canada, auto-
risec par des resolutions du Sénat, de la
Chambre des communes et de l’assemblée
5 legislative de chaque province : 5
a) la charge dc Reine, celle de gouverneur
general et celle de lieutenant-gouverneur;
b) le droit d’une province d’avoir 5 la
Chambre des communes un nombre de
députes au moins égal a celui des sénateurs 10
par lesquels elle est habilitee a étre repre-
sentee lors de 1’entree en vigueur de la
presente partie;
c) sous reserve de l’article 43, l’usage du
15 francais ou de1’anglais; 15
d) la composition de la Cour supreme du
e) lamodification de la présente partie.
Wm‘ ‘W 42. (1) An amendment to the Constitution 42. (1) Toute modification de la Constitu- Ptflcédluts
. t . , 1 normae C
p“,Ccd,,,e of Canada in relation to the following mat-2Otion du Canada portant sur les questions 2O,m,dmcamm
suivantes se fait conformement au paragra-
phe 38(1) :
a) le principe dc la representation propor-
tionnelle des provinces a la Chambre des
communes prévu par la Constitution du 25
Canada; A
b) les pouvoirs du Senat ct le mode dc
selection des sénateurs;
c) le nombre des sénateurs par lesquels
une province est habilitée a etre représen- 30
tee et les conditions dc residence qu’ils
doiveiit remplir;
d) sous reserve dc l’alinéa 41d), la Cour
supreme du Canada;
e) le rattachement aux provinces existan- 35
tes dc tout ou partie des territoires;
/) par derogation at toute autre loi ou
usage, la creation de provinces.
(2) Les paragraphes 38(2) a (4) ne s‘appli- Exception
in respect of amendments in relation to mat-4Oqucnt pas aux questions mentionnees au 40
ters referred to in subsection (1). paragraphe (1).
“““°.”f‘”‘°”‘°’ 43. An amendment to the Constitution of 43. Les dispositions dc la Constitution du Mvdifivfllioné
E;§;”.‘§n’§’1Z5m Canada in relation to any provision that Canada applicables a certaines provinces L:§§:c‘1°
but W 3″ applies to one or more, but not all, provinces, seulement ne peuvent étre modifiees que par vrvvinw
p’°v”‘°“ including 45 proclamation du gouverneur general sous 1e45
(<1) any alteration to boundaries between gmfld 5°63″ du Canada» auiofiséfi Par des prOvi]1c¢s,and resolutions du Senat, dc la Chambre des November 30, 1981 ‘ COMMONS DEBATES 13477 Amendments by Parliament Amendments by provincial legislatures lnitiztlion of amendment procedures Revocation of authorization Amendments without Senate resolution Computation of period Advice to issue proclamation The Constitution (b) any amendment to any provision that communes et de l’assemblée legislative de relates to the use of the English or the chaque province concernee. Le present arti- French language within a province, clc s’applique notamment : may be made by proclamation issued by the a) aux changements du trace des frontie- Governor General under the Great Seal of 5 res interprovinciales; 5 Canada °”lY Where 5° fi’1ll’l°I’lZ¢d W F@$°l”‘ b) aux modifications des dispositions rela- tions of the Senate and House of Commons Lives a l’usage du francais ou dc l‘anglais and of the legislative assembly of each prov- dans une pr0Vince_ ince to which the amendment applies. 44. Sous reserve des articles 41 ct 42, le lOMQdifi@=tivn Parlement a competence exclusive pour ‘§>:’,,’§,m,,,
modifier les dispositions de la Constitution
du Canada relatives au pouvoir executif fede-
ral, au Senat ou a la Chambre des
communes. 15
44. Subject to sections 41 and 42, Parlia- 10
ment may exclusively make laws amending
the Constitution of Canada in relation to the
executive government of Canada or the
Senate and House of Commons.
45. Subject to section 41, the legislature l5 45. Sous reserve de l’article 41, une legis- lvlofllficativfl
of each province may exclusively make laws lature a competence exclusive pour modifier |”ég’,S,§w,c,
amending the constitution of the province la constitution de sa province.
46. (1) The procedures for amendment 46. (1) L’initiative des procedures de |”i\5t}li”¢d°§
under sections 38, 41, 42 and 43 may be modification visees aux articles 38, 41, 42 et2Op’°°°d“’“
initiated either by the Senate or the House of2O 43 appartient au Senat, ta la Chambre des
Commons or by the legislative assembly of a communes ou a une assemblée legislative.
(2) A resolution of assent made for the (2) Une resolution d‘agrement adoptee P§>@5ibi|_i\¢d¢
purposes of this Part may be revoked at any dans le cadre de la presente partie peut etre ‘°v°°a“°”
time before the issue of a proclamation 25 revoquee a tout moment avant la date dc la 25
authorized by it. proclamation qu’elle autorise.
47. (1) An amendment to the Constitution 47. (1) Dans les cas vises a l’article 38, 41, Modification
of Canada made by proclamation under sec- 42 ou 43, il peut etre passe outre au defaut §1″§§:§‘I’“”°”
tion 38, 41, 42 or 43 may be made without a d’autorisation du Senat si celui-ci n’a pas
resolution of the Senate authorizing the issue 3Oadopte de resolution dans un delai de cent 30
of the proclamation if, within one hundred quatre-vingtsjours suivant l’adoption de celle
and eighty days after the adoption by the dc la Chambre des communes et si cette
House of Commons of a resolution authoriz- derniere, apres l’expiration du delai, adopte
ing its issue, the Senate has not adopted such une nouvelle resolution dans le meme sens.
a resolution and if, at any time after the 35
expiration of that period, the House of Com-
mons again adopts the resolution.
(2) Any period when Parliament is proro- (2) Dans la computation du delai vise au 35C@mp”$ali°”
gued or dissolved shall not be counted in paragraphe (1), ne sont pas comptées les dum“
computing the one hundred and eighty day 40 periodes pendant lesquelles le Parlement est
period referred to in subsection (1). proroge ou dissous.
48. The Queen’s Privy Council for 48. Le Conseil prive de la Reine pour le D¢mfl”d=§1¢
Canada shall advise the Governor General to Canada demande au gouverneur general de 4Op’°°’am““°”
issue a proclamation under this Part forth- prendre, conformement a la presente partie,
with on the adoption of the resolutions 45 une proclamation des l’adoption des resolu-

‘ COMMONS DEBATES November 30, 1981
Amendment to
Arr, /867
Laws respecting
resources and
Export from
provinces of
The Constitution
required for an amendment made by procla-
mation under this Part,
49. A constitutional conference composed
of the Prime Minister of Canada and the
first ministers of the provinces shall be con-
vened by the Prime Minister of Canada
within fifteen years after this Part comes into
force to review the provisions of this Part.
50. The Constitution Act, 1867 (formerly
tions prévues par cette partie pour une modi-
fication par proclamation.
49. Dans les quinze ans suivant l’entrée en <3°”iér¢t§¢¢
vigueur de la presente partie, le premier ‘:,(;’|’fcl”“”°”‘
5 ministre du Canada convoque une conference 5
constitutionnelle réunissant les premiers
ministres provinciaux et lui-meme, en vue du
réexamen des dispositions dc cette partie,
P/\RTlE Vl
50. La Loi constitutionnelle dc 1867 Flodiiivatifindc
, a
named the British North America Act, 1867) 10 (anterieurement designée sous le titre 2 Acre lO,,,,f,’x’-,,,,,-,,,,_
is amended by adding thereto, immediately
after section 92 thereof, the following head-
ing and section:
“Non—Renewab/e Natural Resources,
Forestry Resources and Electrical Energy
92A. (1) in each province, the legisla-
ture may exclusively make laws in relation
(a) exploration for non-renewable natu-
ral resources in the province;
(b) development, conservation and
management of non-renewable natural 20
resources and forestry resources in the
province, including laws in relation to
the rate of primary production there-
from; and
(c) development, conservation and man- 25
agement of sites and facilities in the
province for the generation and produc-
tion of electrical energy.
(2) In each province, the legislature may
make laws in relation to the export from 30
the province to another part of Canada of
the primary production from non-renew-
able natural resources and forestry
resources in the province and the produc-
tion from facilities in the province for the 35
generation of electrical energy, but such
laws may not authorize or provide for
discrimination in prices or in supplies
exported to another part of Canada.
de I‘/imérique du Nord britannique, 1867) “Pl/Ede/867
est modifiée par insertion, apres l’article 92,
de la rubrique et dc Particle suivants 1
~Ress0urces naturelles non renouvelables,
ressuurces furestiéres et énergie éleclrique
92A. (l) La législature de chaque pro- Cvnivitcrfc
. , . . . , v
vince a competence exclusive pour leg1fe- l5p’° ‘”°’“
rer dans les domaines suivants 1
a) prospection des ressources naturelles
non renouvelables de la province;
b) exploitation, conservation et gestion
des ressources naturelles non renouvela- 20
bles ct des ressources forcstieres de la
province, y compris leur rythme de pro-
duction primaire;
c) aménagement, conservation et ges-
tion des emplacements ct des installa-25
tions de la province destinés a la produc-
tion d’énergie électrique.
(2) La legislature de chaque province a Etvflglalisfl
competence pour légiférer en ce qui con-
cerne Fexportation, hors de la province, a 30
destination d’une autre partie du Canada,
de la production primaire tirée des ressour-
ces naturclles non renouvelables et des res-
sources forestieres de la province, ainsi que
de la production d’énergie électrique dc la 35
province, sous reserve dc nc pas adopter de
lois autorisant ou prévoyant des disparités
de prix ou des disparités dans les exporta-
tions destinées a une autre partie du
Canada. 40

mber 30, 1981 ~ COMMONS
(3) Nothing in subsection (2) derogates
from the authority of Parliament to enact
laws in relation to the matters referred to
in that subsection and, where such a law of
Parliament and a law of a province con- 5
tlict, the law of Parliament prevails to the
extent of the conflict.
(4) ln each province, the legislature may
make laws in relation to the raising of
money by any mode or system of taxation 10
in respect of
(a) non-renewable natural resources
and forestry resources in the province
and the primary production therefrom,
and 15
(b) sites and facilities in the province
for the generation of electrical energy
and the production therefrom,
whether or not such production is exported
in whole or in part from the province, but 20
such laws may not authorize or provide for
taxation that differentiates between pro-
duction exported to another part of
Canada and production not exported from
the province. 25
(5) The expression “primary produc-
tion” has the meaning assigned by the
Sixth Schedule.
(6) Nothing in subsections (1) to (5)
derogates from any powers or rights that a 30
legislature or government of a province
had immediately before the coming into
force of this section.”
51. The said Act is further amended by
The Constitution
(3) Le paragraphe (2) ne porte pas Pvuvvitdu
atteinte au pouvoir du Parlement de légife- P“\°’“°’“
rer dans les domaines vises a cc paragra-
phe, les dispositions d’une loi du Parlement
adoptee dans ces domaines l’emportant sur 5
les dispositions incompatibles d’une loi
(4) La legislature de chaque province a Tmtiwi do
competence pour prelever des sommes ‘“S°“’c°s
d’argent par tout mode ou systeme dell)
a) des ressources naturelles non renou-
velables ct des ressources forestieres de
la province, ainsi que de la production
primaire qui en est tiree; 15
b) des emplacements et des installations
de la province destinés a la production
d’énergie électrique, ainsi que de cette
production meme.
Cette competence peut s’exercer indépen-20
dammcnt du fait que la production en
cause soit ou non, en totalité ou en partie,
exportée hors do la province, mais les lois
adoptécs dans ces domaines ne peuvent
autoriser ou prévoir une taxation qui eta-25
blisse une distinction entre la production
exportee a destination d’une autre partie
du Canada et la production non exportée
hors de la province.
(5) L’expression itproduction primaire» a 30-Ptvdqclivn
le sens qui lui est donne dans la sixieme pnmaw
(6) Les paragraphes (1) at (5) ne portent :°v_v°lt§,<>“
pas atteinte aux pouvoirs ou droits détenus ‘°“S°”sm“s
par la legislature ou le gouvernement 35
d’une province lors de l‘entrée en vigueur
du present article.»
51. Ladite loi est en outre modifiée par l<l=m
adding thereto the following Schedule: 35 adjonction de l’annexe suivante 1
Primary Production from Non—Renewable
Natural Resources and Forestry Resources
1. For the purposes of section 92A of this
Production primaire tirée des ressources
naturelles non renouvelables et des
ressources forestiéres
1. Pour Yapplication dc Particle 92A 1 40

13480 COMMONS DEBATES November 30 1981
The Corisiiiuiion
(a) production from a non-renewable
natural resource is primary production
therefrom if
(i) it is in the form in which it exists
upon its recovery or severance from its 5
natural state, or
(ii) it is a product resulting from proc-
essing or refining the resource, and is
not a manufactured product or a prod-
uct resulting from refining crude oil,lO
refining upgraded heavy crude oil, refin-
ing gases or liquids derived from coal or
refining a synthetic equivalent of crude
oil; and
(b) production from a forestry resource is 15
primary production therefrom if it consists
of sawlogs, poles, lumber, wood chips, saw-
dust or any other primary wood product,
or wood pulp, and is not a product manu-
factured froin wood.” 20
(b) the Acts and orders referred to in
Schedule l; and
(c) any amendment to any Act or order 30
referred to in paragraph (a) or (b).
*‘~'”¢”d”\”‘”< 1″ (3) Amendments to the Constitution of
Constituiion of 4 )\ . ., ,
Canada Canada shall be made only in accordance etre modifiee que conformement aux pou-
with the authority contained in the Constitu- voirs conférés par elle.
tion of Canada. 35
a) on entend par production primaire tirée
d’une ressource naturellc non renouvela-
(i) soit le produit qui se presente sous la
meme forme que lors de son extraction 5
du milieu naturel,
(ii) soit le produit non manufacture de
la transformation, du raffinage ou de
Faffinage d’une ressource, a l’exception
du produit du raffinage du pétrole brut, 10
du raffinage du pétrole brut lourd ame-
lioré, du raffinage des gaz ou des liqui-
des dérivés du charbon ou du raffinage
d’un equivalent synthétique du pétrole
brut; l5
b) on entend par production primaire tirée
d’une ressource forestiere la production
constituée de billets, de poteaux, de bois
d’oeuvre, de copeaux, de sciure ou d’auti’e
produit primaire‘ du bois, ou de pate de 20
bois, =1 l‘exception d’un produii manufac-
turé en bois.»
Primacy of 52. (l) The Constitution of Canada is the 52. (l) La Constitution du Canada est la P”m=*“léd¢’¢\
Cflnslilllllflfl of 1 fc d d h 4 1 . , d C d p H d. I Consiiiuiion du
Cmda supreme aw o_ ana a, an any lawt at is oi supreme u ‘ana a, ev eren inoperantes Canada
inconsistent with the provisions of the Con~ les dispositions incompatibles de toute autre 25
stitution is, to the extent of the inconsistency, regle dc droit,
of no force or effect. 25
<3<>”$t‘;l”1’°” °f (2) The Constitution of Canada includes
(2) La Constitution du Canada comprend : goflstilulwfldu
an 3 (a) the Canada Act, including this Act; am a
c , , _ d
a) la Loi sur le Canada, y compris la
présente loi;
b) les textes législatifs et les décrets figu- 30
rant a l‘annexe l;
c) les modifications des textes législatifs et
des décrets mentionnés aux alinéas a) ou
(3) La Constitution du Canada ne peut35M@d’F’¢Hl1°”
Rcwlsflfld 53. (l) The enactments referred to in 53. (1) Les textes législatifs et les décrets Abroeaiiflflel
“°w“am°S Column I of Schedule I are hereby repealed énumerés a la colonne I de l’annexc l sont “°“m“X””°“
or amended to the extent indicated in abrogés ou modifies dans la mesure indiquée 40
Column II thereof and, unless repealed, shall a la colonne II. Sauf abrogation, ils restent
continue as law in Canada under the names 4Oen vigueur en tant que lois du Canada sous
set out in Column Ill thereof, les titres mentionnés a la colonne lIl.

November 30, I981 r COMMONS DEBATES 13481
Repeal and
French version
of Constitution
of Canada
English and
French versions
of certain
English and
French versions
of this Act
ment of
Z3( I Ha) in
respect ‘of
(2) Every enactment, except the Canada
Act, that refers to an enactment referred to
in Schedule I by the name in Column I
thereof is hereby amended by substituting
for that name the corresponding name in
Column III thereof, and any British North
America Act not referred to in Schedule I
may be cited as the Constitution Act fol-
lowed by the year and number, if any, of its
54. Part IV is repealed on the day that is
one year after this Part comes into force and
this section may be repealed and this Act
renumbered, consequential upon the repeal
of Part IV and this section, by proclamation
issued by the Governor General under the
Great Seal of Canada.
The Constitution
(2) Tout texte legislatif ou réglementaire,
sauf la Loi sur le Canada, qui fait mention
d’un texte legislatifou décret figurant a l‘an-
nexe I par le titre indique a la colonne I est
Smodifie par substitution a ce titre du titre
correspondant mentionné a la colonne III;
tout Acte dc l’Amerique du Nord britanni~
que non mentionne a l’annexe I peut etre cite
sous le titre de Loi constitutionnelle suivi dc
lOl’indication de l‘annee de son adoption etlO
eventuellement dc son numero.
54. La partie IV est abrogee un an apres
l’entrée en vigueur de la presente partie et le
gouverneur general peut, par proclamation
sous le grand sceau du Canada, abroger le
I5 present article et apporter en consequence de
cette double abrogation les amenagements
qui s’imposent ta la presente loi.
Abrogation ct
rnodi lications
qui en
S5. A French version of the portions of the 55. Le ministre dc la Justice du Canada P/,”$f<>!t 6
Constitution of Canada referred to in est charge de rédiger, dans les meilleurs 2OcQ”,I’;’,‘“,,‘:°,“°,c5
Schedule I shall be prepared by the Minister 20 délais, la version francaise des parties de la wiisiiiuiivnnels
of Justice of Canada as expeditiously as pos~
sible and, when any portion thereof sufficient nexe I’ toute partie suffisamment importante
to warrant action being taken has been so
Constitution du Canada qui figitrcnt a l’an-
est, des qu’elle est préte, deposée pour adop-
prepared, it shall be put forward for enact- tion par proclamation du gouverneur general 25
ment by proclamation issued by the Gover-25 sous le grand sceau du Canada, conforme-
nor General under the Great Seal of Canada
pursuant to the procedure then applicable to
an amendment of the same provisions of the
Constitution of Canada.
ment a la procedure applicable ii l’epoque it
la modification des dispositions constitution-
nelles qu’elle contient.
56. Where any portion of the Constitution 30 56. Les versions francaise et anglaise des 30 ‘/f=r-*i<>!t$
of Canada has been or is enacted in English
parties dc la Constitution du Canada adop-
and French or where a French version of any tees dans ces deux langues ont égalenient
fr.xn<;aisc ct
zinglaisc dc
ccrtains textes
portion of the Constitution is enacted pursu- force de loi. En outre, ont egalement force dc
ant to section 55, the English and French loi, des l’adoption, dans le cadre dc Particle
versions of that portion of the Constitution 3555, d’une partie dc la version francaise de la 35
are equally authoritative. Constitution, cette partie et la version
anglaise correspondante.
francaise ct
anglnise dc la
presente loi
57. The English and French versions of 57. Les versions francaise etanglaise dela
this Act are equally authoritative. presente loi ont également force de loi.
58. Subject to section 59, this Act shall 58. Sous reserve de l’article 59, la presente 4OE_””é*¢”
come into force on a day to be fixed by40loi entre en vigueur zi la date fixee par pro- “g“°“’
proclamation issued by the Queen or the clamation de la Reine ou du gouverneur
Governor General under the Great Seal of general sous le grand sceau du Canada.
59. (l) Paragraph 23(l)(a) shall come 59. (I) L’alinéa 23(l)a) entre en vigueur ‘tfngfsreéie
into force in respect of Quebec on a day to be 45 pour lc Quebec a la date fixee par proclama-45 fifinéa ml)“;
pour it Quebec

‘ COMMONS DEBATES November 30, 1981
of Quebec
Repeal of this
Short title and
The Consiiluiion
fixed by proclamation issued by the Queen or tion de la Reine ou du gouverneur general
the Governor General under the Great Seal sous le grand sceau du Canada.
of Canada.
(2) A proclamation under subsection (1) (2) La proclamation visée au paragraphe Autvriwiondh
shall be issued only where authorized by the 5(1) ne peut étrc prise qu’apres autorisation Q“°b°°
legislative assembly or government oi de l’assemblée legislative ou du gouverne- 5
Quebec. ment du Québec.
(3) This section may be repealed on the (3) Le present article peut étre abrogé at la A§ws1\li<>r!<!\\
day paragraph 23(1)(a) comes into force in date d’entrée en vigueur de l’alinéa 23(1)a) p’°s°’“a”‘°!°
respect of Quebec and this Act amended and 1Opour le Quebec, et la presente loi faire 1’ob~
renumbered, consequential upon the repeal jet, des cette abrogation, des modifications et 10
of this section, by proclamation issued by the changements de numérotation qui en decou-
Queen or the Governor General under the lent, par proclamation de la Reine ou du
Great Seal of Canada. gouverneur général sous le grand sceau du
60. This Act may be cited as the C0nsli- 15 60. Titre abrégé de la presente annexe: 15Ti”=§
tution Act, I981, and the Constitution Acts Loi mnsziiutionnelle de I981; titre commun
1867 to 1975 (No. 2) and this Act may be des lois constitutionnelles de 1867 a 1975
cited together as the Constitution Acts. 1867 (n” 2) ct dc la presente loi: Lois constitu-
101981, liomzelles 4121867 Z2 I981.

13484 COMMONS DEBATES November 30, 1981
The Constitution
to the
Column 1 Column ll Column I11
ltem Act Affected
New Name
1 British North America Act, 1867,
30-31 Vict., c. 3 (U,K.)
An Act to amend and continue the
Act 32-33 Victoria chapter 3; and to
establish and provide for the Gov-
ernment of the Province of Manito-
ba, 1870, 33 Vict., c. 3 (Can.)
Order of Her Majesty in Council
admitting Rupert’s Land and the
North-Western Territory into the
union, dated the 23rd day of June,
Order of Her Majesty in Council
admitting British Columbia into the
Union, dated the 16th day of May,
British North America Act, 1871,
34-35 Vict., c. 28 (U.K.)
Order of Her Majesty in Council
admitting Prince Edward Island into
the Union, dated the 26th day of
June, 1873
Parliament of Canada Act, 1875,
38-39 Vict., c. 38 (U.K.)
Order of Her Majesty in Council
admitting all British possessions and
Territories in North America and
islands adjacent thereto into the
Union, dated the 31st day of July,
(1) Section 1 is repealed and
the following substituted therefor:
“1. This Act may be cited as
the Constitution Act, 1867.”
(2) Section 20 is repealed.
(3) Class 1 of section 91 is
(4) Class 1 of section 92 is
(1) The long title is repealed
and the following substituted
“Manitoba Act, 1870.”
(2) Section 20 is repealed.
Section 1 is repealed and the
following substituted therefor:
“1. This Act may be cited as
the Constitution Act, I871.”
Constitution Act, 1867
Manitoba Act, 1870
Rupert’s Land and North-Wesb
ern Territory Order
British Columbia Terms of Union
Constitution Act, 1871
Prince Edward Island Terms of
Parliament of Canada Act, 1875
Adjacent Territories Order

November 30, 1981 COMMONS DEBATES
The Consti/ulion
Colonne I
Loi visée
Colonne II
Colonne III
Nouveau titre
Acte dc 1’Amérique du Nord britan-
nique, 1867, 30-31 Vict., e. 3
Acte pour amender et continuer
l’acte trente-deux et trente-trois Vic-
toria, chapitre trois, et pour établir
et constituer le gouvernement dc la
province de Manitoba, 1870, 33
Vict., c. 3 (Canada)
Arrété en conseil de Sa Majesté
admettant la Terre de Rupert et le
Territoire du Nord-Ouest, en date
du 23 juin 1870
Arrété en conseii de Sa Majesté
admettant Ia Colombie-Britannique,
en date du16 mai 1871
Acte de l’Amérique du Nord britan-
nique, 1871, 34-35 Vict., c. 28
Arrété en cqnseil de Sa )Majesté
admettant l‘Ile-du-Prince-Edouard,
en date du 26juin 1873
Acte du Parlement du Canada,
1875, 38~39 Vict., c. 38 (R.—U.)
Arréte en conseil de Sa Majesté
admettant dans l’Union tous les ter-
ritoires et possessions britanniques
dans l’Amérique du Nord, et les iles
adjacentes a ces territoires et posses-
sions, en date du 31 juiiiet 1880
(1) L’articie l est abrogé et
remplacé par ce qui suit :
al. Titre abrégé 1 Loi consti-
tutionnelle de 1867.»
(2) L’article 20 est abrogé.
(3) La catégorie 1 de Particle
9! est abrogée.
(4) La catégorie 1 de Particle
92 est abrogée.
(1) Le titre complet est abrogé
et remplacé par ce qui suit 2
‘Loi de I870 sur le Mani-
(2) L’articie 20 est abrogé.
L’article 1 est abrogé et rem-
placé par ce qui suit :
ti. Titre abrégé : Loi consti-
tutionnelle de 187].»
Loi constitutionneile de 1867
Loi de 1870 sur ie Manitoba
Décret en conseil sur la terre de
Rupert et le tcrritoire du Nord-
Conditions de l’adhésion de Ia
Loi constitutionnelle de 1871
Conditions de Fadhésion de
Loi de I875 sur le Parlement du
Décret en conseil sur les territ0i-
res adjacents

13486 . COMMONS DEBATES November 30, 1981
The Cons/ilution
to the
CONSTITUTION ACT, 1981-—C0ntinuea’
Column I Column II Column Ill
Item Act Affected Amendment New Name
British North America Act, 1886,
49-50 Vict., c. 35 (U.K.)
Canada (Ontario Boundary) Act,
1889, 52-53 Vict., c. 28 (U.K.)
Canadian Speaker (Appointment of
Deputy) Act, 1895, 2nd Sess., 59
Vict., c. 3 (U.K.)
The Alberta Act, 1905, 4-5 Edw.
VII, c. 3 (Can.)
The Saskatchewan Act, 1905, 4-5
Edw. VII, c. 42 (Can)
British North America Act, 1907, 7
Edw. VII, c. 11 (U.K.)
British North America Act, 1915,
5-6 Geo. V, c. 45 (U.K.)
British North America Act, 1930,
20-21 Geo. V, c. 26 (U.K.)
Statute of Westminster, 1931, 22
Geo. V, c. 4 (U.K.)
British North America Act, 1940,
3-4 Geo. Vl, c. 36 (U.K.)
British North America Act, 1943,
6-7 Geo. VI, c. 30 (U.K.)
Section 3 is repealed and the
following substituted therefor:
“3. This Act may be cited as
the Constitution Act, 1886.”
The Act is repealed.
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act. 1907.”
Section 3 is repealed and the
following substituted therefor:
“3. This Act may be cited as
the Constitution Act, 1915.”
Section 3 is repealed and the
following substituted therefor:
“3. This Act may be cited as
the Constitution Act, 1930.”
In so far as they apply to
(a) section 4 is repealed; and
(b) subsection 7(1) is
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act, I940.”
The Act is repealed.
Constitution Act, 1886
Canada (Ontario Boundary) Act,
Alberta Act
Saskatchewan Act
Constitution Act, 1907
Constitution Act, 1915
Constitution Act, 1930
Statute of Westminster, 1931
Constitution Act, 1940

November 30, 1981 , COMMONS DEBATES 13487
ANNEXE I (suite)
The Constitution
Colonne I Colonne II Colonne III
Loi visée Modification Nouveau titre
Acte dc l‘Amérique du Nord britan-
nique, 1886, 49-50 Vict., c. 35
Acte du Canada (limites d’Ontario)
1889, 52-53 Vict., c. 28 (R.-U.)
Acte concernant l‘Orateur canadien
(nomination d’un suppléant) 1895,
2‘ session, 59 Vict., c. 3 (R.-U.)
Acte dc l‘Alberta, 1905, 4-5 Ed.
VII, c. 3 (Canada)
Acte de la Saskatchewan, 1905, 4-5
Ed. VII, c. 42 (Canada)
Acte de l‘Amérique du Nord britan-
nique, 1907, 7 Ed. VII, c. 11 (R.-U.)
Acte dc l’Amérique du Nord britan-
nique, 1915, 5-6 Geo. V, c. 45
Acte de l’Amérique du Nord britan-
nique, 1930, 20-21 Geo. V, c. 26
Statut de Westminster, 1931, 22
Geo. V, c. 4 (R.-U.)
Acte de l’Amérique du Nord britan-
nique, 1940, 3-4 Geo. VI, c. 36
Acte de l’Amérique du Nord britan-
nique, 1943, 6-7 Geo. VI, c, 30
L‘article 3 est abrogé et rem-
placé par ce qui suit :
<3. Titre abrégé : Loi c0nsti~
tutionnelle de 1886.»
La loi est abrogée.
L’article 2 est abrogé et rem-
place par ce qui suit :
42. Titre abrégé 1 Loi consti-
tutionnelle de 1907.»
Ijarticle 3 est abrogé et rem-
place par ce qui suit :
<3. Titre abrégé : Loi consti-
tutionnelle de 1915.»
L’article 3 est abrogé et rem-
placé par ce qui suit :
‘<3. Titre abrégé : Loi consti-
tutionnelle de 1930.»
Dans la mesure oi: ils s‘appIi-
quent au Canada :
a) l’artic1e 4 est abrogé;
b) le paragraphe 7(1) est
L’article 2 est abrogé et rem-
placé par ce qui suit :
12. Titre abrégé : Loi consti-
tutionnelle de 1940.»
La loi est abrogée.
Loi constitutionnelle de 1886
Loi de 1889 sur le Canada (fron
tieres de l‘Ontario)
Loi sur l’Alberta
Loi sur la Saskatchewan
Loi constitutionnelle de 1907
Loi constitutionnelle de 1915
Loi constitutionnelle de 1930
Statut de Westminster de 1931
Loi constitutionnelle de 1940

13488 ~ COMMONS DEBATES November 30, 1981
The Cons/izurion
to the
CONSTITUTION ACT, i 98 1-—Continued
Column I Column II Column Ill
Item Act Affected Amendment New Name
British North America Act, 1946,
9-10 Geo. V1, c. 63 (U.K.)
British North America Act, 1949,
12-13 Geo. V1, c. 22 (U.K.)
British North America (No. 2) Act,
1949, 13 Geo. VI, c. 81 (U.K.)
British North America Act, 1951,
14-15 Geo. V1, c. 32 (U.K.)
British North America Act, 1952, l
Eliz. ll, c. 15 (Can.)
British North America Act, 1960, 9
Eliz. II, c. 2 (U.K.)
British North America Act, 1964,
12-13 Eliz. II. c. 73 (U.K.)
British North America Act, 1965,
14 Eliz. ll, c. 4, Part I (Can.)
British North America Act, 1974,
23 Eliz. II, c. 13, Part I (Can.)
The Act is repealed.
Section 3 is repealed and the Newfoundland Act
following substituted therefor:
“3. This Act may be cited as
the Newfoundland Act.”
The Act is repealed.
The Act is repealed.
The Act is repealed.
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act, I960.“
Section 2 is repealed and the
following substituted therefor:
“2. This Act may be cited as
the Constitution Act, I964.“
Section 2 is repealed and the
following substituted therefor:
“2. This Part may be cited as
the Constitution Act, 1965.”
Section 3, as amended by
25-26 Eliz. II, c. 28, s. 38(1)
(Can.), is repealed and the fol-
lowing substituted therefor:
“3. This Part may be cited as
the Constitution Act, 1974.”
Constitution Act, 1960
Constitution Act, 1964
Constitution Act, 1965
Constitution Act, 1974

November 30, 1981 . COMMONS DEBATES 13439
ANNEXE I (suite)
The Constitution
Colonne I
Loi visée
Colonne II
Colonne III
Nouveau titre
Acte de l‘Amérique du Nord britan-
nique, 1946, 9-10 Geo. VI, c. 63
Acte de l’Amérique du Nord britan-
nique, 1949, 12-13 Geo. VI, c. 22
Acte de l’Amérique du Nord britan-
nique (N° 2), 1949, 13 Geo. VI, c.
81 (R.-U.)
Acte de l’Amérique du Nord britan-
nique, 1951, 14-15 Geo. VI, c. 32
Acte de l’Amerique du Nord britan-
nique, 1952, I Eliz. II, c. 15
Acte de l’Amérique du Nord britan-
nique, 1960, 9 Eliz. II, c. 2 (R.-U.)
Acte de l’Amérique du Nord britan-
nique, 1964, 12-13 Eliz. II, c. 73
Acte de l’Amérique du Nord britan-
nique, 1965, 14 Eliz. II, c. 4, Partie I
Acte de l‘Amérique du Nord britan-
nique, 1974, 23 Eliz. II, c. 13, Partie
I (Canada)
La loi est abrogée.
L’article 3 est abrogé et rem-
placé par ce qui suit :
<3. Titre abrégé : Loi sur
La loi est abrogée.
La loi est abrogée.
La loi est abrogée.
L’article 2 est abrogé et rem-
placé par ce qui suit :
<2. Titre abrégé 1 Loi consti-
tutionnelle de 1960.»
L‘article 2 est abrogé ct rem-
placé par ce qui suit 2
<2. Titre abrégé : Loi consti-
tutionnelle de 1964.»
L‘article 2 est abrogé et rem-
place par ce qui suit :
<2. Titre abrégé de la pre-
sente partie : Loi constitution-
nelle de I965.»
L‘article 3, modifié par le para-
graphe 38(1) de la loi 25-26 Eli-
zabeth II, c. 28 (Canada), est
abrogé et remplacé par ce qui
suit :
<3, Titre abrégé dc la pre-
sente partie : Loi constitution-
nelle de I974.»
Loi sur Terre-Neuve
Loi constitutionnelle de I960
Loi constitutionnelle de 1964
Loi constitutionnelle de 1965
Loi constitutionnelle de 1974

13490 . COMMONS DEBATES November 30, 1931
The Constitution
to the
Column I
Item Act Affected
Column II
Column III
New Name
29. British‘ North America Act, 1975,
23-24 Eliz. II, c. 28, Part I (Can.)
30. British North America Act (No. 2),
1975, 23-24 Eliz. II, c. 53 (Can.)
Section 3, as amended by
25-26 Eliz. II, c. 28, s. 31 (Can.),
is repealed and the following sub-
stituted therefor:
“3. This Part may be cited as
the Constitution Act (No. 1),
Section 3 is repealed and the
following substituted therefor:
“3. This Act may be cited as
the Constitution Act (No. 2),
Constitution Act (No. 1), 1975
Constitution Act (N0. 2), 1975

November 30, 1981 t COMMONS DEBATES 13491
The Constitution
ANNEXE I (fin)
Colonne I Colonne II Colonne III
Loi visée Modification Nouveau titre
Acte de l’Amérique du Nord britan- L’article 3, modifié par l‘article Loi constitutionnelle n” 1 de 1975
nique, 1975, 23-24 Eliz. II, c. 28, 31 de la loi 25-26 Elizabeth ll, c.
Partie I (Canada) 28 (Canada), est abrogé et rem-
place par ce qui suit 2
<3. Titre abrégé de la pre-
sente partie : Loi constitution-
nelle n” I de I975.»
Acte de l’Amérique du Nord britan- L‘article 3 est abrogé et rem- Loi constitutionnelle n° 2 dc 1975
nique n° 2, 1975, 23-24 Eliz. II, c. 53 place par ce qui suit:
(Canada) <3. Titre abrégé : Loi consti-
tutionnelle n” 2 de I975.»

13492 ‘ COMMONS DEBATES November 30, 1981
The Constitution
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 oi 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
That the proposed Constitution Act 1981 be amcndcd by striking out Clause
40 and substituting the following:
40. In the event that a province disscnts from an amendment conferring
legislativejurisdiction on Parliament, the Government of Canada shall provide
reasonable compensation to the government of that province, taking into
account the per capita costs to exorcise that jurisdiction in the provinces which
have approved the amendinciit.
Members of the House will recall the comments the Prime
Minister (Mr. Trudeau) made in this I-louse 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.
Nothwithstanding 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 bystand-
er waiting to rubbcrstamp that which has been agreed to.
This is not the time to address the question of federal-pro-
vincial 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 Minis-
ter’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 inten-
tion 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
The amendment that I propose will reintroduce to the
Constitution’s amending formula a reasonable financial com-
pensation 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.
Q (1510)
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 standardi-
zation or greater deceittralization than we have in Canada
today, and I intend to explain that. We would have a situation

November 30, 1981 . COMMONS DEBATES 13493
where, instead of 10 different standards, there might be two or
three or four. Additionally, provinces which had not opted in
to a transfer ofjurisdiction 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 seeen 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 himselfin 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 govern-
ment, 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 condi-
tions 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 Presre 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.
The Constitution
Therefore, faced with the prospect of centralization of power
in Ottawa, the protection of reasonable financial compensa-
tion, 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 16 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 compensa-
tion for any province not opting in to constitutional amend-
ments 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 Septem-
ber decision. It is a standard which the Prime Minister himself
has formerly called the “tyranny of unanimity”.

13494 . COMMONS DEBATES November 30, 1981
The Constitution
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 inter-
preted 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.
Q (1520)
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
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 “lt’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 jurisdic-
tion, 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 medi-
care today is that ll 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 compensa-
tion, because it came about historically through the use of the
federal spending power, not through constitutional amend-
ment. It is important that everyone understand that distinc-
tion. 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
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 coin-
pensation, nothing else. Not all provinces can afford to exer-
cise certain of their constitutional responsibilities at the same
level as others-without assistance from the central govern-
ment. 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 situa-
tion to the Leader of the New Democratic Party. Medicare
was not introduced through constitutional amendment. Sup-
pose 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 Saskatch-
ewan 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 prov-
ince 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.

November 30, 1981 ‘ COMMONS
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 finan-
cial penalty, the same situation can occur again. In the mean-
time, 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 prov-
inces 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 require-
ments met without preventing the free expression of other
provinces and without preventing the development of a nation-
al 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 finan~
cial 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-pro-
vincial 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 ofjustice for that province and its
people, we do not want to stop short of justice for every
province and for all citizens of Canada.
The Constitution
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 Lin-
coln (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!
Q (I530)
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 cer-
tain 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 Québécois, constituting a govern-
ment committed to sovereignty-association, would find it virtu-
ally 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

l3496 ‘ COMMONS DEBATES November 30, 1981
The Constitution
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
Before turning to my specific proposal I would like now to
discuss the amendment just proposed by the Progressive Con-
servative 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
francophone: are 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. ll 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.
Q (I540)
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. ln
addition, if all provinces could opt out with financial compen-
sation, what incentives would there be for the rich provinces to
respond positively to new national programs such as a guaran-
teed 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 inevi-
table—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 fur-
ther national innovation which could be profoundly important
for a high level of equal existence and experience for Canadi-
ans 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-

November 30, l981 ‘ COMMONS DEBATES 13497
stand that Quebec is unique. By this l 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 New-
foundland 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 distin-
guished 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.
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 franeophones 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 exist-
ence, 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.
I move, seconded by the hon. member for I-lamilton Moun-
tain (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. Cliréticn that an address be presented lo 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”.
The Constitution
Some hon. Members: Hear, hear!
Q (l55O)
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 agree-
ment 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 ofa 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 indepen-
dence 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. ln fact, from
Louis-Hippolyte Lafontaine to Pierre Elliott Trudeau, illustri-
ous 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 Lafontaine who, in the 1840‘s, took
on the task of repairing the political damage caused by Louis-
Joseph Papineau, leader of the I837-38 rebellion, and who,
through his alliance with Robert Baldwin, succeeded in rein-

13498 ‘ COMMONS DEBATES November 30, 1981
The Constitution
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 Papincau in 1848, and l
Some men are bcnl on destruction but have never built on the ruins they left
In 1867, there would have been no confederation or Canadi-
an 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 respons-
ibly, 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 Bourass-
a‘s nationalists, the gesture reeked of colonialism. Canada’s
autonomy became one of the major issues in the 1911 election.
Laurier was defeated by a curious alliance of imperialist
Tories and Quebec nationalists. ln an article published in Le
Devoir on December 29, I911, Omer Héroux 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 l quote:
As a penance, l have to read Le Devair every day.
And he added:
As l 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 I923 he was the first Canadian repre-
sentative to sign, alone, an international treaty with the United
States. At a federal-provincial conference in November, 1927,
Lapointc, 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 Westmin-
ster passed in l931—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 thc 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 expres-
sions of emancipation. And in I952, 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 Cana-
da‘s national anthem, adopted by Parliament in June I980, the
music was written a hundred years before by the Quebec
composer Calixa Lavallée, 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 eon-
cerns of their fellow French-Canadians in that process of
shaping the country.
Q (I600)
Unfortunately, they always met along the way other Que-
becers who were afraid of change and in favour of the status

November 30, I98! COMMONS
qua 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 independance, 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 coun-
try’s constitutional development, that Canadians will enjoy
basic rights that are protected against the whims of govern-
ments, 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 qua, 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 Québec 2001, une société refroidie, predict a growing
The Constitution
crisis of the economic structure in Quebec. It would be deceit-
ful 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 relations-
hip 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 princi-
pally created in Western Canada.
An increasing number of francophone Quebecers will proba-
bly decide to take part in a second large rush to the West.
Moreover, the migratory movement has already begun. From
1976 to I980, 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 extrapo-
lating 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
I963 and particularly during the ‘70s, the Canadian govern-
ment 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 provin-
ces 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 gua-
ranteed by the constitution, namely the right of the provinces
henceforth to participate fully in the constitutional evolution of

13500 ‘ COMMONS DEBATES November 30, 1981
The Constitution
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. René Levesque did not advocate that formula when it
was time, unlike the Canadian government and those of Onta-
rio 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 ulti-
matums. 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 Québécois
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:
Q (1610)
What l myself feared was that Lcvesque‘s mission (to Ottawa) would result in
a certain success, an agreement.
The (1980) referendum forced him to play the game (cf 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 Québécois. If one wants
to discuss an agreement with the present representative of the
Quebec government, then it is better to have that in mind.
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 indepen-
dence, 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 encroach-
ment. 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 impar-
tial observers in Quebec have the guts to point out.
The PQ pamphlet states, and I quote:
The very same year, 1927, Ottawa grablcd 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:
We are willing, indeed pleased, to co-operate with Ottawa. lfany modification
of the constitution is appropriate in the circumstances, well, we would be willing
to consider in a moS\ friendly way the possibilities of modifying the constitution
in the matter of old age pensions.
As one can see, the federal government did not act by force,
as the Parti Québécois now maintains. Elsewhere in its publi-
cation 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
sollicitors 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 Québécois.
The PQ pamphlet contains the most far-fetched and deceitful
statements to try and make people distrust the federal govern-
ment, 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 Québécois 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-amend-
ment introduced by the hon. member for Oshawa and leader of

November 30, l98l – COMMONS
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 con-
stitutional resolution tabled last November 18 by the Minister
of Justice (Mr. Chrétien) 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 estab-
lishing 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 posi-
tion 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 Constitu-
tion 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 gov-
ernment undertakes, if such is the desire of the other prov-
inces, 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 con-
vinced the vast majority of Quebecers will not be blinded by
the false promises of the Péquistes who, in fact, have no
respect for the people of Quebec. They do not know the people.
It ls 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 collec-
tive existence which they share with their North-American
The Constitution
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 Péquistes 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 Québécois, 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 provin-
cial 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 con-
vinced 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 respect-
ing 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, l 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
Québécois. In this debate this afternoon, neither the Progres-
sive 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 atthe 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 con-
cerned, we begin discussions immediately or make such discus-
sions the very first item on the agenda of the following

13502 ‘ COMMONS DEBATES November 30, 1981
The Constitution
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
letter 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 communica-
tions, and also to social affairs among other things.
Meanwhile, during the discussions that followed on reinstat-
ing 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 extend-
ing 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 finan-
cial 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 sugges-
tions 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 Quebe-
cois 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 Québécois at their conventions and at public political
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 l 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 rnadc 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.
Q (1620)
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

November 30, I981 ‘ COMMONS DEBATES N 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 cndorsation 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 threc o’clock.
Q (I630)
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 con-
sidered which could probably be entrenched in the Constitu-
tion 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
The Constitution
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 unani-
mous consent’?
Some hon. Members: No.
The Acting Speaker (Mr. Ethier): There is not unanimous
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 Minis-
ter of State (Mr. loyal) 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 compensa-
tion 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 Parlia-
ment 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.

I3504 t COMMONS DEBATES November 30, l98l
The Constitution
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
Provenchcr and the hon. Leader ofthe 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 state-
ment 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. Chrétien: 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
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 amend~
ment. 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 agrcc is impor-
tant, 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. Broadbenl) 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 arc
more sensitive to Quebec have persuaded him that the matter
is so important in Ia 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 amend-
ment as well.
Q (I640)
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
I-Iouse. 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

November 30, 1981 ‘ COMMONS
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 S, 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 I14
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
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 Free-
doms 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
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 discrimina-
tion based on race, colour and religion, etc.
As a member of the Joint Committee on Official Lan-
guages, I fully agree, of course, with the clauses of the bill
which will grant equal rights to both official languages as far
The Constitution
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 volun-
tarily accepted both official languages in the institutions of
New Brunswick. l also congratulate the premiers of the nine
provinces for their good faith in providing rights for education
in the minority language.
1 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
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 refe-
renda 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 mobili-
ty 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 Asso-
ciation 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—-—thc guilt or
innocence of some people in criminal trials may become an

13506 ‘ COMMONS DEBATES November 30, I981
The Constitution
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.
Q (I650)
l 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 respcct 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 unilateral-
ly, 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-lan-
guage schools. That is a fine price to pay for trying to learn the
majority language of one’s province.
On the other hand, the Liberal members from Qucbec-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 ofa 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,
I-Ion. 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.
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 continu-
ing vigilance of Canadians.
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 I975. He said:
I belicvc a notwithstanding clause . , . may be the only restraint we need place
on the legislature . . . One must bc realistic and understand that the most one can
expect from a written bill of rights and judicial rcvicw is control of administra-
tive and police action . . . Whether the courts do hold legislative or administra-
tive action inoperative or invalid, is not always as important as the fact that they

November 30, 1981 ‘ COMMONS
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 pcoplc 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 comcs to worst
and an infringing law is enacted, it has a maximum life of five
years, thus allowing special interest groups further opportuni-
ties 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 goverment, 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.
Q (I700)
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 intransi-
gence on the part of the dissenting eight. It was only I3
months later, after a continuing display of unflagging determi-
nation 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.
And now, the constitutional resolution goes from here to the
Parliament ofthe 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
The Constitution
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 Consti-
tution 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
So it is with Wcstminster‘s power of amendment of the
British North America Act. This power remains vested in the
United Kingdom Parliament under the Statute of Westmin-
ster. 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
Cornmonwealth“, R. T. E. Latham wrote that “ . . . Common-
wealth conventions may prove to be or to have become indis-
tinguishable 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 afortiori. 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 Conventi’0n.r 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

13508 ‘ COMMONS DEBATES November 30, 1981
The Constitution
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 Com~
monwealth 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 accord-
ance 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
The attainment of full Canadian constitutional indepen-
dence, when the final legal steps are taken in the United
Kingdom, will perhaps mark a slight advance in our interna~
tional 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 I867.
Q (I710)
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
ofthis 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:
It will protect our homes and our rights.
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.
Tho Acting Speaker (Mr. Ethicr): 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.
MacI<ay)»~Administration of Justicc—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 Constitu»
tion—Francophones outside Quebec—–Protection of rights.
The House resumed consideration of the amended motion of
Mr. Chrétien respecting the Constitution of Canada, the
amendment thereto of Mr. Epp (p. 13492) and the subamend-
ment of Mr. Broadbent (p. 13497).
Mr. Gordon Towers (Rerl Deer): Mr. Speaker, this is the
first time I have prevailed upon the House to have an opportu-
nity 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

November 30, 1981 ‘ COMMONS
DEBATES _ i .1 503
for Provencher (Mr. Epp) of our party for the work he has
done on this Constitution. I-Ie 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 senti-
ments across Canada between provinces, between the prov-
inces 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
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 conven-
tion 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 Quebcc’s claim that it still has a veto power? ls
there validity to that argument’? The Minister of Justice (Mr.
Chrétien) 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 should 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 thcrc 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
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 patria~
tion and an amending formula. While nothing tangible hap-
pened, 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
The C0n.s’ti!ution
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, I82 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. “Q Cana-
da” was adopted as our official national anthem. This too was
a slow process.
It has been alleged that a nation which docs 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
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 ofjoint 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’! l think
There are large numbers of our people who are very con~
cerned about the direction in which wc in Canada are going.
My colleague for Edmonton Strathcona (Mr. Kilgour) men-
tioned 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:

DEBATES November 30, 1981
The Constitution
q (1720)
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 necessari-
ly 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 Commis-
sion tabled its recommendations to control the media. Then, the McDonald
Commission brought forward a report obviously designed to embarrass, humili-
ate. and bring to an end, the effectiveness of the Royal Canadian Mounted
Police Security Force.
Control the media, control the securityAand 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 dangerotts wording of the Charter of
Rights and Freedoms as presently proposed which. in our opinion, would
dramatically affect our criminal justice system and abdicatc Parliaments au-
thority and responsibility as the primary guardian of the rights of Canadian
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 50,000 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 new 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 socie-
ty. 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.
Rcgrettably, language and institutionalized bilingualism has
been a divisive factor on the road to nationhood. Almost 30
years ago Mason Wade wrote:
Destiny, not ofcharacter, 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
Frertclt language——the most precise. vivid and rapid language in western civiliza-
tion—~they may be our partners and we theirs, but we can never be a single
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 €Xpt‘BSSl0n.
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
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:

November 30, test COMMONS
Buoyed by the success of native and women’s groups in getting their rights
restored to the constitutional package Quebee‘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 Chrétien . ..
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 hoards 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.
O U730)
“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 juris-
diction of the courts.
I should likc to quote Ian MacDonald on the same issue. He
A lot of people may be wondering what the Constitution actually says in this
famous “Canada clause“ thcy’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 lt)l, which limits access to English schools to “a child
whose father or mother received his or her elementary instruction in English in
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. (l) Citizens of Canada
ta) 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(l)(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.
The Constitution
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 101 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-dress-
ing. 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 insurrec-
tion. 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 treat~
ment 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 S5 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

l35l2 < COMMONS DEBATES November 30, 1981
The Constitution
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
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
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 sec 21
patchwork, incomplete and unacceptable charter thrown to-
gether in Canada and enshrined in Britain.
It is time for sobcr, 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 Constitu~
tion, 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.
Q (1140)
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 particpate 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. Canadi-
ans 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 I931, 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
We have zi 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
rcfcrendum 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

November 30, I981 , COMMONS
there was a real desire to reach an agreement with the
provinces. That agreement was reached, and there was an
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 amend-
ments 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, l 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 t0 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
The Constitution
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
Mrs. Appolloni: I-Ie was a man.
Mr. Smith: As the hon. member for York South (Mrs.
Appolloni) has pointed out, he was a man.
I (I750)
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.
I-Ie said that he was automatically suspicious of anything
which had been proposed by the Prime Minister. Quite frank-
Iy, 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.

l35l4 . COMMONS
DEBATES November 30, 1981
The Constitution
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 ll 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 pre-
pared 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 in 1966. For
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 agree-
ment, 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 leaership 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 somcone 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 I980 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
I-louse. 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 I949, just happend 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 Nepean-
Carleton (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 wholc thing ended.
However, it is quite fair to say that that mood and atmos-
phere has evaporated. It is gone. I think that when the vote is
taken on Wednesday night, there will not be any recrimina-
tion, 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 treaso~
nous 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 bringinng 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 15. 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

November 30, I981 , COMMONS DEBATES 13515
indifferent. People were simply not aware of the need for their
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—(Iarleton): 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.
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 tclexes, hasty amendments and House agree-
ments. l 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 Canadi-
ans 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 madc in hasty,
The Constitution
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 implemcnter 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 resolu-
tion. 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 resolu-
tion’! 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 ou 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 con-
cern 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.

13516 , COMMONS DEBATES November 30, I981
The Constitution
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.
Q (Z010)
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.
1 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 I01 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 lan-
guage? 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 secedes7
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. His-
torically 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 properly 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
Pope Leo XIII stated in I891:
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

November 30, l?8l COMMONS
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 “disembowe1ling” 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 Free<
doms‘? 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
On the other side of the Atlantic the United Kingdom does
not have art 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 protec-
tion of civil liberties that exists anywhere in the world. Need I
say any more? So much for entrenchment.
We have existed for l I4 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 impor-
tant, powers over a vast new field of subjects; and the history of the United
States 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
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 portly in French or English, would have no constitutional protection
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
The Constitution
already been cast. We are all aware of it on this side of the
Q (2020)
The government is determmined 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
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 forma-
tive 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 Québécois. 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 young-
ster. We did many things in common. We played ball, hockey,

DEBATES November 30, 1981
The Constitution
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 argu-
ments which disappeared overnight.
When I came to the House of Commons in I962 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 I969, it was endorsed by virtually
all members of the House.
I had rather simplistic views on the Constitution in I962. I
saw a country in which both official languages would be
recognized from one ocean to the other; where French-speak~
ing 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-speak-
ing 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 clays, days when the President of the
CNR said he could not find enough French-speaking Canadi-
ans 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 implement-
ing the concept of freedom of choice. I am a little unhappy
that Section 23 is limited as far as that application is con-
cerned 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 privi-
leged 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
Q (2030)
The hon. gentleman who just sat down recalled the intoler-
ance 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 Canadian 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 Monlcalm‘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 wel-
come Section 23 as it applies to French-speaking Canadians
living outside Quebec. They should be pleased at the extension
of Section I33 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:

November 30, 1981 _ COMMONS
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/Kmcrica. 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
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 ofthe 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 infrastruc-
ture 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 repre-
sented 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 Québécois 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
The Constitution
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 gov-
ernment in somehow—thc 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 free-
dom of choice but also the Canada clause to which Mr.
Lévesque 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 Québécois can be seduced into supporting
the Conservative Party in the next election. Not only will they
lose the Parti Québécois, which they never had, but they will
lose the English-speaking community which under normal
circumstances supports that party in surprising numbers.
Q (2040)
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-speak-
ing 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 popula-
tion of Saskatchewan or Manitoba»-I may have forgotten my
figures—wh0 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. John-
ston) 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 Democrat-
ic 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

13520 , COMMONS
DEBATES November 30, I981
The Constitution
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 periodi-
cally that perfection can be the enemy of the good. Ijust hope
that, in their anxiety to appease the PQ government, the party
opposite does not break faith with one million English-spealo
ing 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 I-Iouse. On the afternoon of November 3
when that very historic accord was anounced, 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 equal-
ity 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 New-
foundland 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 differ-
ences 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
We have reflected in the accord the enshrinement of a
multiculturalism reality which is important to many Canadi-
ans. 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 affccting 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.
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 codc, a different religion in the province of Quebec. Right
across the country, administrative and constitutional arrange-
ments differ from those found in Quebec. The proposal made
by the leader of my party, the hon. member for Oshawa (Mr.

November 30, L981 COMMONS DEBATES 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
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 congratu-
late 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,
Q (Z050)
l think, Mr. Speaker, as a Canadian who comes from an
English~speaking province, that we should look very seriously
at the specifics ofthe motion moved by the Leader ofthe NDP.
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: I-Iear, hear!
Mr. Nystrom: It is imperative that Canada include Quebec.
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 settle-
ment 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 ll4 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 ifa 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
The Constitution
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 pen-
sion 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 weIl——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 ofjurisdiction 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 exam-
ple, 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 compen-
sate 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. I 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

DEBATES November 30, 1981
The Constitution
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 provincces 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.
Q (Z100)
I should like to say one word about the Conservative amend-
ment, Mr. Speaker. My leader has offered some of our con-
cerns 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 inSl.itLl~
tions would have dealt with it saying that they want a eompen~ ,
sation 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
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 ll 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~
soevcr 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 jurisdic-
tion 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

November 30, 1981 , COMMONS
DEBATES _. .,_.l.:?.§.?l
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 ofa vacuum in
our system. There are no places in our country where the
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 thc
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. Nystroniz We cannot have our Senate pick them
because our Senate is appointed solely by the federal govern-
ment. 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, repre-
senting thc people of the country, could either accept or reject
the nominations.
Many of our central institutions, such as the Prime Minis-
ter’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.
The Constitution
9 (2! to)
For a country to survive, its constitution must reflect the
reality of the country. Our reality as a country is one oi‘
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!
Mr. Gérald Laniel (Parliamentary Secretary to Minister of
Industry, Trade and Commerce): Mr. Speaker, in this histori-
cal 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 persever-
ance and determination in dealing with the constitutional
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 sugges-
tions at this late stage in the debate. Ifhe had his way, the debate
would have to start all over again. Accordingto him, veto rights
should he 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.
Chrétien), 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 subse-
quent 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 amend-
ing 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 melo-
dramatic 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 governments and
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.
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

I 3524 , COMMONS
DEBATES November 30, 1981
The Constitution
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
I-louse, 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 I am sure, to receive before the end of the
debate any suggestions or alternatives or compromises that
would be acceptable to all concerned. In 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 I 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 vicw of some of the
provisions contained in the resolution, including that under
which the Quebec government can make a voluntary commit-
ment concerning the linguistic clause, just as Ontario might
eventually do with respect to Section I33 of the British North
America Act by institutionalizing bilingualism in the Legisla-
tive 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 identi-
fied 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 Minis-
ter 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
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 exampie. 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. I obtained my pilot’s wings with
the rank of pilot officer out of a graduation course of approxi~
mately 25 men of the RAF, 25 men of the RNZAF from New
Zealand, 25 men of the Royal Canadian Air Force, mcn 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
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 constitu~
ents, 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 fcel isolated,

November 30, I981 , COMMONS
DEBATES M.,….,..,l2..515
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 to-
gether, 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 govern-
ment 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 Canadi-
ans 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~centcred. 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 assert-
ing 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
The Constitution
are willing to pay. But at present, in Quebec, Bill 101 prevents
an anglophone educated in English to send his children to n
French school if he wants to. What inconsistency, Mr.
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 mobili-
ty. /\s for me, Mr. Speaker, I do not agree with the uncompro-
mising 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 govern-
ment 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
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 forefa-
thers had dreamed about, and to which the Charter of Rights
and Fredoms will add our clear determination to foster a
bettcr understanding, dialogue and brotherhood. Because of
the urgency of the matter, the decision cannot wait. We must

13526 , COMMONS DEBATES November 30, 1981
The Constitution
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.
Mr. Don Blenkarn (Mississauga South): Mr. Speaker, when
l 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 unilateral-
ly upon the country with only the support of two provinces,
certainly not with the support of the people of Canada.
Q (2130)
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»pi’ovincia] confer-
ence, 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 Parlia-
ment, 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
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 prov-
inces, 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 m3]Ol’lty 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. Chréticn). 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
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. lt 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 notjust 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. Blcnkarn: 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. Clearlylwhat 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.

November 30, 1981 ‘ COMMONS
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 recog-
nize the hon. member for Yorkton-Melville (Mr. Nystrom) on
a point of order.
Mr. Nystrom: l wonder if the hon. member would answer a
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. l 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
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
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
The Constitution
really concerned about Quebec, we should provide such a
clause only for the province of Quebec.
O (2140)
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. lf 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 compensat~
ed. If the NDP were really interested in making this constitu~
tional 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 loss of a veto. If there were clear compensation
for opting out, there would be no way for any Quebec govern-
ment to say it is not protected. ln 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.
l say that the amendment by the hon. member for Provench-
er 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 constitu~
tional amendment. It will have no logical objection to the
The only ones who might be hurt are those who insist that
federal power should be expanded. ls 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.
l would like to deal now with the matters before us concern-
ing the Charter of Rights and Freedoms. ln 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

DEBATES November 30, I981
The Consmution
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
I am proud of the Diefenbaker Bill of Rights. It has flowing
language which appeals to people. Perhaps one of the difficul~
ties 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 scen 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
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 duc
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.
l 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
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 Vancou~
ver consensus as an amending formula.
Mr. McDermid: Think of all the time we would have saved
ifthey 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. McDerrnid: It took them a year.

November 30, I981 ‘ COMMONS DEBATES 13529
Mr. Blenkarnz 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 pro-
vincial 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 to-
gether 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.
Adjournment Debate
Q (2200)
A motion to adjourn the House under Standing Order 40
deemed to have been moved.
Hon. Elmer M. MacKay (Central Nova): Mr. Speaker, a
few days ago I raised a question with the Solicitor General
(Mr. Kaplan) concerning the practice or the method known as
mandatory supervision which forms part of our so-Called penal
reform these days.
The Solicitor General recognized the problems inherent in
this area. At that time he said he had asked for a departmental
study to be conducted because he was dissatisfied with the
concepts. He realized that shortly after assuming his portfolio.
He said he received a study in July, circulated it through the
criminal justice constituency and would wait until the end of
October. Then he hoped to be able to go to cabinet and do
something about this in a few months.
With all respect, I say to my colleague the Solicitor General,
that is not good enough. We have seen a great deal of
obfuscation and delay from this minister not only in this case
but with respect to rights on behalf of the RCMP, a commit-
ment he gave in 1980.
Coming back to this question of mandatory supervision, it
has created a great deal of interest, particularly since the
minister and I discussed it in the House. Sociologists,
criminologists, jurists and people well acquainted with the
problems have contacted me and, I am sure, members
The cases which I cited, one on the west coast and one on
the east coast, are only two of many. There was a particularly
violent and tragic murder of a little girl in Kingston not long
ago. I wish to quote from a current edition of the Halifax
Chronicle-Herald, one of Canada’s great newspapers. It indi~
cates under the headline banner “Two sentenced for crimes
committed during supervision” as follows:
The parade of persons committing offences while on mandatory supervision
continues at the Halifax law courts.
This is a recent issue of the newspaper. It only underlines
the difficulties that will be faced by an innocent public until
such time as the Solicitor General and his colleagues come to
grips with the necessity of doing something to change the
existing practice. I recently received a letter from an eminent
sociologist who indicated to me that his research on the
assessment of dangerousness, and I quote from his letter:
——over the past 12 years, suggests that lllfl Solicitor General and his Slfiff are
quite wrong in assuming that dangerousness cannot be predicted. A detailed
examination of the Odo ease would, I am certain, provide ample evidence oi‘ his
murderous propensities.

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