Canada, House of Commons Debates, “Establishment of Special Joint Committee of the Senate and House of Commons”, 32nd Parl, 1st Sess (10 October 1980)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1980 at 3596-3611.
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COMMONS DEBATES — October 10, 1980
ESTABLISHMENT OF SPECIAL JOINT COMMITTEE OF THE
SENATE AND HOUSE OF COMMONS
The House resumed consideration from Thursday, October 9 1980 of the motion of the Minister of Justice and Minister of State for Social Development (Mr. Chretien):
That a Special Joint Committee of the Senate and of the House of Commons be appointed to consider and report upon the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the government on October 2, 1980, and to recommend in their report whether or not such an address, with such amendments as the committee considers necessary, should be presented by both Houses of Parliament to Her Majesty the Queen;
That 15 members of the House of Commons to be designated no later than three sitting days after the adoption of this motion be members on the part of this House of the Special Joint Committee;
That the committee have power to appoint from among its members such subcommittees as may be deemed advisable and necessary and to delegate to
such subcommittees all or any of their powers except the power to report directly to the House;
That the committee have power to sit during sittings and adjournments of the House of Commons;
That the committee have power to send for persons, papers and records, and to examine witnesses and to print such papers and evidence from day to day as may be ordered by the committee;
That the committee submit their report not later than December 9, 1980; That the quorum of the committee be 12 members, whenever a vote, resolution or other decision is taken, so long as both Houses are represented and that the joint chairmen be authorized to hold meetings, to receive evidence and authorize the printing thereof, when six members are present so long as both Houses are represented; and
That a message be sent to the Senate requesting that House to unite with this House for the above purpose, and to select, if the Senate deems it to be advisable, members to act on the proposed Special Joint Committee.
Mr. Roy MacLaren (Parliamentary Secretary to Minister of Energy, Mines and Resources): Mr. Speaker, I had occasion to speak for four minutes yesterday evening before the debate was interrupted, and I see that it is now almost one o’clock. With your permission, may we call it one o’clock and resume the debate this afternoon?
The Acting Speaker (Mr. Ethier): Is that agreed?
Some hon. Members: Agreed.
The Acting Speaker (Mr. Ethier): Order, please. It being one o’clock, I do now leave the chair until two o’clock p.m.
At one o’clock the House took recess.
The House resumed at 2 p.m.
The Acting Speaker (Mr. Ethier): Order, please. When the House took recess at one o’clock this afternoon, government order No. 18 was under consideration and the bon. Parliamentary Secretary to the Minister of Energy Mines and Resources (Mr. MacLaren) had the floor.
Mr. Roy MacLaren (Parliamentary Secretary to Minister of Energy, Mines and Resources): Mr. Speaker, this is the third time I have begun this speech, and I hope that I may be able to complete it this afternoon.
As we adjourned our sitting last night, I was saying that today, 113 years after confederation, we are once again engaged in nation-building. Today we have before us legislation which sets forth three broad objectives—three Canadian imperatives for our constitution.
The first is to patriate the various acts which will then become the new Constitution of Canada, and to end our anachronistic legislative dependence upon another Parliament.
Second, we wish to entrench a Canadian charter of rights, including mobility rights and minority language education.
Third, we wish to entrench the principle of equality for all Canadians wherever they live.
Others have spoken and others will speak of the procedures of patriation which are set forth in the legislation. They will speak about the proposed methods of amendment to the constitution when it becomes a Canadian constitution in the fullest sense of that word, but this afternoon I want to speak about another matter.
I want to speak about one of the principal rights that is guaranteed in the new constitution, the right of every Canadian to live and to work for himself or herself in any part of Canada and to provide for his or her family in any part of Canada in which he or she chooses to live. In doing so I shall emphasize the importance of these rights to each and every Canadian. They are as well rights designed to encourage the economic integration of the Canadian union in a highly competitive world.
Mobility rights are important to every Canadian. Indeed, most Canadians would assume that they have the right to move about their country and to live and work where they will. About half of the Canadian population moves every five years. Statistics show that one Canadian in every 20 moves from one province to another once every five years.
Extrapolating past trends indicates that mobility rates are very likely to increase. The guarantee of mobility rights is one part of a yet wider guarantee of movement which is essential to making a success of an economic union. Among other things, the Fathers of Confederation knew that the continuation of the customs barriers on manufactured goods and produce which had marked the colonies of British North America had merely served to weaken them all. When the Fathers of Confederation moved toward the British North America Act, they were on the one hand fearful of the British free trade policy, which seemed to call into jeopardy the health of the British North America economy. They were also fearful of the United States abandonment of reciprocity, that is free trade in North America of manufactured goods. So the Fathers of Confederation rightly recognized that economic forces were making for co-operation in British North America, in addition to the various political forces which were also lending impetus to partnership. They wisely sought an economic union for the mutual benefit of all.
In the British North America Act, section 91 substantiates this approach by giving the federal government the fiscal and monetary powers necessary in a customs union, including the tools necessary to ensure the viability of a common market, that is, a common postal service, weights and measures, the census and statistics, matters relating to bankruptcy, patents and copyrights, unemployment insurance and competition policy.
The power to establish interprovincial and international transport policy required to enhance our economic integration
was also set forth in section 91 and in the exceptions to exclusive provincial powers which are to be found in section 92.
To further substantiate our economic union, the British North America Act provided for a single currency, a banking system and other necessary monetary instruments, along, of course, with the highly important trade and commerce power granted in section 91, which ensures basic federal economic paramountcy.
Additionally, however, to underline the nature of the economic union which was being created, the British North America Act, in section 121, states:
All articles of the growth, produce, or manufacture of any one of the provinces shall, from and after the union, be admitted free into each of the other provinces.
It was no accident that the Fathers of Confederation entrenched these rights of the federal government in the BNA Act because they were conscious of the problems that would be created if the barriers continued among the future provinces of Canada. Unfortunately, experience has shown that the fears of the Fathers of Confederation were well warranted. Today, of course, section 121 may be read as being intended to include services, capital and labour, as well as the free movement of goods, but in the face of increasing interprovincial barriers it is now seen by many as insufficiently explicit. With notable ingenuity, provinces have discovered other regulatory devices which have the same effect as customs duties, those duties which were eliminated at the time of confederation, and thereby, in effect, they can circumvent section 121.
It has been the recent experience in Canada that provinces have focused increasingly on the means to improve their own narrow economic performance, especially high value added activities. As a result, many provincial policies now weaken the common market, reducing gains that could otherwise be generated by industrial specialization, and labour and capital are not being used as efficiently as possible.
As each province seeks greater industrial and economic growth, they have sometimes, either wittingly or unwittingly, entered into competition with one another. Let me give a few examples of such barriers and obstructions as exist today. I shall do so with reference to three areas: the free movement of goods, the free movement of capital, and the free movement of labour.
In the case of goods, we see procurement practices on the part of provinces which extend to construction contracts as well as the purchase of goods, a necessity for a high degree of provincial content which can detract from the efficiency of Canadian manufacturing and construction industries. In the case of marketing boards, there are limitations and established prices which can hinder interprovincial trade. In the uniformity of legislation, provinces can cut across the intention of a common market, of a customs union even, by putting up terms and conditions which hinder the nature of interprovincial trade.
Similarly in transportation, particularly in the trucking industry, we have many examples of obstruction and lack of reciprocity which contribute to the breaking down of the real benefits which otherwise should accrue from interprovincial commerce. Equally in the case of the free movement of capital, subsidies to provincial companies, provincial investment tax credits, the regulation of security markets by provinces can all lead to a lack of co-ordination and to competition among provinces. There have, of course, been cases of provincial interference in takeover bids, and members of the House are aware of such recent instances in British Columbia and in Quebec. The competition policy itself can cause difficulties in interjurisdictional disputes. Pension plans may vary from province to province in such a way as to hinder the movement of capital. Land sales and provincial investment plans can be regulated in such a way as to prevent or lessen opportunities for other Canadians to participate in the total national development of our country.
But it is on the third area, that of mobility of labour, that I wish to spend a few minutes because it is specifically that right which is now being placed in our constitution. I do not need to remind some of my colleagues in the House of the various local hiring restrictions which may be found in provincial legislation. I would cite the petroleum and natural gas act of Newfoundland, Nova Scotia’s act respecting petroleum resources, the Quebec construction industry’s labour relations act, Saskatchewan lease agreements with resource development companies seeking licences to operate, and, of course, many other examples could be offered. The point is that under such legislation, which also extends to restrictions on the freedom of movement of professionals as well of skilled and unskilled labour, requirements are imposed which discriminate in favour of provincial residents. To take only one example of many, in Alberta a pharmacist must have resided in the province for three months before he can apply for registration, and the waiting period in Ontario for a pharmacist is six months. Those in the House who are lawyers will be aware equally of the residency restrictions which are placed on the movement of lawyers within our country.
No one would dispute the fact that the provinces have jurisdiction over labour under section 92 of the BNA Act. They can set forth the conditions of employment, the licensing of professionals, and they can legislate labour laws, but these undeniable powers are sometimes distorted or extended in such a way as to cause increasing obstacles to the full realization of our total economic potential.
The impact of these barriers must be evident to anyone who would recognize that any such interprovincial barriers to the movement of labour, capital and goods prevent all Canadians from achieving the benefits which would flow naturally from our full economic integration. We lose, by such barriers, the benefit of a greater scale of production, the benefits of specialization, and the full benefits that can accrue from the snaring of joint services in transportation and in communications.
Most of all, the barriers can reduce Canada’s ability as a nation to compete in a difficult world market and to negotiate
with other countries on a standing of equality in international trade relations. Such provincial competition serves to reduce our national efficiency. Of course it may alter the division of the economic pie, but certainly it makes it smaller. In the end such internal competition is merely self-defeating and invites retaliation.
Let me quote the Minister of Justice (Mr. Chrétien) on that last point. Very recently he stated:
—discrimination by one province explicitly gives nine other provinces the right to do the same thing, that is the right to retaliate. And when this happens, no one should think that the weaker provinces will be the beneficiaries. For retaliation is a more effective weapon in the hands of the strong than in the hands of the weak. Furthermore, retaliation is most likely to take place at times of economic difficulties and this will only compound the problems of the less fortunate provinces.
While the world is removing obstacles, we are allowing them to increase. While the world is seeking larger economic units, whether in Latin America, Asia or Europe, we are subdividing ours. Unable to utilize tariffs, quotas and certain kinds of indirect taxes for constitutional reasons, the provinces have developed partial substitutes by way of subsidies, regulation of industry, moral suasion, provincial or public ownership, and other devices. But, have we not travelled this road before? Well-documented studies clearly point to the unwelcome effects of prolonged protection of the Canadian market on the efficiency of industry, the high degree of foreign ownership in Canada and the uneven distribution of gains and losses by our various regions. Are we seriously proposing to travel that route in yet smaller provincial markets?
In the new Canada Act we recognize the fundamental nature of mobility rights. The clause in the new legislation reads as follows:
Every citizen of Canada and every person who has the status of a permanent resident in Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province.
So, section 121 of the BNA Act which prohibits obstacles to the movement of goods, and this new clause in the legislation guaranteeing mobility rights, serve very real and not hypothetical needs. These rights for the moment of labour, people, goods and capital are essential to our economic development. Also they are essential if we are to reduce economic disparities in our country and achieve the goal of equalization which of course is promised elsewhere in the new legislation, in the new act before us, in the new constitution. We shall not achieve the equalization we seek without the freedom of movement which is also set forth in the legislation.
The principle of mobility of people and labour, is now in our constitution. As in so many other areas, however, the underlying ideas must be seen as implicity rather than explicit. In fact, the clause guaranteeing the freedom of movment is considerably less than some other proposals which have been made during the intense discussions leading up to the debate we are now undertaking. The Quebec government, the Ontario government and others across the country have looked toward the guarantee of the free movement of goods, services, labour and capital in the new constitution.
For example, the constitutional committee of the Canadian Bar Association held that so basic a matter as the degree of a country’s economic integration should not be left to changing judicial philosophy but should be articulated in the constitution. Also it urged the need for greater constitutional support of the national market against provincial protectionist policies which could lead to the balkanization of Canada. To a degree that task is still before us. Of course there is provision in the legislation for first ministers’ conferences in the two years ahead. It is my hope that the problems of restriction on the interprovincial movement of goods, services and capital will be explicitly prohibited through those further discussions. In any event, we have made progress and we are making progress, in the legislation currently before us, in guaranteeing the freedoms to ensure that we shall be better able to provide every Canadian with a full opportunity to participate in a prosperous economy.
More generally we are participating in a debate which will confirm that with our new constitution at home, amenable to further growth and evolution as necessary by Canadians, we shall affirm our own faith in our own judgment, in the determination of our own domestic arrangements and our own unique way of life.
Victor Hugo once wrote the following:
On résiste à l’invasion des armées, on ne résiste pas à l’invasion des idées.
It has been rather picturesquely translated as:
Greater than the tread of mighty armies is an idea whose hour has come.
The hour has come to bring home the Canadian constitution and to guarantee Canadians those rights which are fundamental to the full realization of the partnership of the Canadian people.
Some hon. Members: Hear, hear!
Mr. Geoff Scott (Hamilton-Wentworth): Mr. Speaker, I rise as a Canadian. Unlike many of my colleagues on this side of the House I am not a constitutional expert, nor can I hope to rise to the eloquence of the Right Hon. Leader of the Opposition (Mr. Clark) on the opening day of this historic debate which was unquestionably the finest speech of my leader’s political career. It set the tone and very high standard for interventions from hon. members on all sides of the House on this vitally important and lasting resolution for Canada.
Some hon. Members: Hear, hear!
Mr. Scott (Hamilton-Wentworth): This resolution is for all of us and for all time. On constitutional matters I guess I know as many details about the amending formula and the process of entrenchment of the charter of human rights, indeed the whole mechanism of bringing the British North America Act to Canada, as do most of the 75,000 people I have the honour to represent in Hamilton-Wentworth. I dare say that most of my constituents would agree with the redoubtable former Senator Eugene Forsey when he said:
I haven’t heard anyone say that they couldn’t sleep at nights because the constitution wasn’t patriated, that they couldn’t keep their coffee down in the mornings until we see a charter of human rights, or that they couldn’t concentrate on their work until there’s an amending formula.
I believe my distinguished colleague, the hon. member for St. John’s West (Mr. Crosbie), can be credited with the saying that “you cannot eat a constitution and constitutions do not employ anybody”.
I know from my contact with people, not only throughout my own constituency but during a month-long campaign in the Hamilton West riding and a mid-summer trip to western Canada, that Canadians are far more concerned with the frightening national deficit, ever-increasing unemployment, and the double digit inflation in this country. Even this past week some of my people were wondering why Parliament has been recalled to spend time talking about the constitution, after all we have heard this past summer, and not dealing directly and immediately with a national energy policy. That is not a bad question.
The government may have set December 9 as the deadline for the Special Joint Senate-Commons Committee on Constitutional Reform to complete its hearings, but by December 9 Canadians will be well past the point of no return in terms of any decisions that we make in this Parliament on the average Canadian’s budgeting plans for the cost of keeping warm this winter. Whatever results from this great Canadian debate on the constitution will, the government presumes and, we hope, last us for at least another 113 years.
What Canadians in Hamilton-Wentworth, and I suspect in a great many other communities as well, would like to know is what kind of energy security will they have for the next three or indeed, 13 years. When you talk to people about the constitution they really do ask: what is the fuss all about? What is the rush all about? The only person in one of the major towns in my riding, Ancaster, who would venture an opinion on the constitution was an elderly lady who said, “I have got to go and read up on the BNA Act and find out what they are going to do to it”. Nobody I questioned at any of the fall fairs knows how it is done or why it needs to be done.
When you talk about cutting ties with Britain, people in my area do get exercised, but their ties with the mother country are more emotional than governmental. But the feeling generally IS that bringing home the constitution will not affect the average true Canadian, strong and free, anywhere in Hamilton-Wentworth. Folks do say, though, it is high time we governed ourselves. But then most people think that is what we have been doing all along.
There is widespread concern, confusion, and raising of eyebrows at all the rhetoric at the recent first ministers’ conference. Random samplings of my constituents suggest that all ten provincial premiers were guilty of parochialism of the first order. When you ask them how they feel about the new constitution, as proposed by the Prime Minister (Mr. Trudeau) the folks I represent are likely to say that this is not the kind of issue they would expect an opposition party to oppose. Then they add, “But of course nobody here is aware of any of the nasty little wrinkles in it.”
This 49-page document before us may be emblazoned with a nice red maple leaf flag, but it is indeed dotted with red flags throughout—those nasty little wrinkles. As my leader put it:
It’s a Trojan horse. It looks like it’s what we want. It achieves patriation. But it is absolutely dangerous and fundamentally changes the nature of this country.
My leader is dead right. Once that Trojan horse gets inside the walls it will release soldiers who will give many people across this country reason to think about what this government is doing.
The government, through the Prime Minister and the Minister of Justice, has expressed the hope that this debate will rise above political partisanship. Let me make it clear at the outset—I have two views on letting party allegiance and political bias intrude on an historic debate such as this. The first point I will put on record is that I, like all members of this party, favour patriation of the constitution. I believe it is long past due that Canadians should have control over their own constitution. I favour the entrenchment of a charter of human rights and fundamental freedoms in that constitution. I do have reservations about the imposition of minority language educational rights in the Prime Minister’s announced package. I will deal with that in a moment. I strongly recommend the Bill of Rights, preamble and all, be enshrined in this constitution as a lasting tribute to the Right Hon. John Diefenbaker.
My second point about getting political in this kind of debate is that the Prime Minister has made it impossible to submerge one’s partisan stirrings, and at the same time the whole unilateral manner in which this government is proceeding has whipped my feelings as a Canadian into a near frenzy. Concerns have been raised and rebuffed in this chamber about the government keeping up its advertising campaign while this debate is in progress. I am wondering about the travel at taxpayers’ expense, such as special government aircraft to the United Kingdom as when Mark and John went off to see the Queen.
The Secretary of State for External Affairs (Mr. MacGuigan) and the Minister of State for Science and Technology and Minister of the Environment (Mr. Roberts) had lunch with the Queen at Balmoral Castle. Then they visited with Prime Minister Margeret Thatcher. That is all fine since it was being done through the Canadian High Commission. But now we learn the two ministers have been wining and dining British journalists and publishers around London to explain the government’s point of view, that is, the Liberal point of view, the one, dominating party point of view here. And a question which could be asked is whether any of the opposition parties, any spokesmen from the opposition parties, have been getting to these influential people in the United Kingdom. What upsets us is that we, the taxpayers, pay for all of these luncheons and dinners. We are paying for a unilateral action we do not believe in.
The corollary is that the Prime Minister’s cabinet will be fanning out all across the country to spread the message, the propaganda, at government expense, at taxpayers’ expense-our expense. They will be concentrating, of course, in western
Canada where the concern is deepest, the anger more justifiably acute.
There is no government subsidization in this program for opposition members of Parliament to explain the constitution which affects everybody in this nation. There is no hope at all for those who want to go out and express an opposing point of view. We have to do it at our own cost—and we will. The government is spending our money to promote one point of view, the Liberal point of view, and they ask us to keep this debate non-partisan?
The Prime Minister made an admirable start at a non-partisan, balanced and responsible approach to Canada’s constitutional reform when he appointed two of Canada’s foremost authorities on the subject to co-chair an important task force, the distinguished former premier of Ontario, the Hon. John Robarts, a master of consensus at gatherings like the Confedation for Tomorrow Conference, in Toronto, and his equally qualified Liberal counterpart, the amiable hon. member for Ottawa-Carleton (Mr. Pepin). They became the Banting and Best of constitutional change.
The Pepin-Robarts Task Force on National Unity went from coast to coast listening to the views of hundreds upon hundreds of Canadians as they poured forth their views almost nightly—on national television—on the kind of Canada they wanted to see. Having thus dramatically sampled the grass roots of this country, at a cost of several million dollars to the taxpayers, the task force handed down comprehensive and far-reaching recommendations for the future of the country. Indeed, pretty soon the hon. member for Ottawa-Carleton became the constitutional expert most in demand on the nation-wide speaking circuit, through the media, almost eclipsing the acknowledged dean of constitutional commentary in Canada, former Senator Forsey.
But whose face did we see for seemingly endless hours and days on the TV screen right behind or beside the Prime Minister’s at the recent federal-provincial conference? Who got the chance to go to London to see the Queen and explain Canada’s case? Why, it was that renowned constitutional expert and household name, the Minister of State for Science and Technology and Minister of the Environment. Where was the hon. member for Ottawa-Carleton? Did anybody ever see his benign countenance on the TV screen during that week-long “Operation Klieg-Light”? Does anybody know if the Minister of Transport was consulted before the Prime Minister’s unveiling of this document last week, or whether he was offered any room on the government aircraft which flew off to the United Kingdom this past week carrying the other two ministers to meet the Queen and wine and dine the British press?
I should point out here I am not being mischievously partisan here. I am concerned and disappointed about the Prime Minister freezing out the hon. member for Ottawa-Carleton from this historic, symbolic and cataclysmic move of the BNA Act from Britain to Canada. I am disappointed because the hon. member for Ottawa-Carleton happens to be my MP. My family’s Ottawa residence as opposed to our home in Dundas, Ontario, lies deep within my hon. friend’s riding. While I am hoping against hope that he will ever be able to do anything as Minister of Transport to satisfy those of us who are concerned about airport expansion, I had come to expect a somewhat higher profile and, I might add, a much deserved role as one of the fathers of reconfederation. The minister will know that my disappointment is sincere.
Mr. Pepin: I am helping both your airports.
Mr. Scott (Hamilton-Wentworth): The minister said that he is helping both my airports. I will believe that when I see the results. My concern about the minister’s total exclusion from this exercise goes to the very root of this debate and forms the basis of my party’s honest objection to what this Liberal government and this Prime Minister (Mr. Trudeau) in particular are determined to do. Let me just quote a couple of key recommendations out of the Pepin-Robarts report:
Our conclusion, then, with respect to regionalism parallels our judgment about duality in two ways. First, we accept both of them as basic social and political realities, but we also recognize the legitimate claims of both and the potential they offer to enrich ·and diversify Canadian life. In other words we accept their existence, we also recognize their value … we also believe that regionalism in Canadian life is expressed primarily … within the framework of the provinces and we regard the provincial and territorial governments as critical agents in articulating the concerns and aspirations of these regional communities.
Clearly, that endorses the provinces as legitimate spokesmen for the concerns of their regions. One of the most telling sections of the Pepin-Robarts report reads as follows:
—our commitment to the constitution of the Canadian federation that a system with the authority of the state shared by two orders of government-
It says two orders of government.
—each sovereign and at the same time committed to co-operative association with the other under a constitution.
We think that the approach to Canada’s problems must be as varied and comprehensive as are the problems themselves. There is no single answer that will do the job.
That, in my view, reflects a view of Canada that flies in the face of the Prime Minister’s “this or else” approach. On language rights, which go to the heart of our debate on Canadian unity, the Pepin-Robarts report states:
The principle of the equality of status, rights and privileges of the English and French languages for all purposes declared by the Parliament of Canada, within its sphere of jurisdiction, should be entrenched in the constitution.
Each provincial legislature should have the right to determine an official language or official languages for that province, within its sphere of jurisdiction. Should all provinces agree on these or any other linguistic rights, these rights should then be entrenched in the constitution.
The operative words there are “should all provinces agree”. The Pepin-Robarts report favours entrenchment of rights. However, the implication is that entrenchment should be based on consensus in order to have uniformity. The list of rights should, if necessary, be limited to those on which there is agreement. Here is what the present Prime Minister said, according to an article in The Canadian Forum, published in June, 1962, and I quote from page 53:
I said it earlier: it is necessary to divorce the concepts of the state and of the nation, and to make Canada a society truly pluralist and multinational. And for
that, it is necessary to assure to different regions, inside the Canadian state, a large measure of local autonomy, so that through the experience of self-government, the nationals can give themselves laws and institutions indispensable to the growth and progress of their national values. At the same time, and in a movement of withdrawal, it is necessary that British Canadian nationalism consent to change the image it has given to Canada. If it wishes to protect and incarnate its specific ethnic values, it must do it by the machinery of local and regional autonomy, rather than by way of pan-Canadian sovereignty.
Admittedly, this was written 14 years before the Parti Québécois came into power, but it is still interesting to read what the present Prime Minister had to say in 1962. He went on to say:
Moreover, no provincial frontier coincides exactly with ethnic and linguistic frontiers, and consequently no provincial government is asked by the constitution to legislate only for a single ethnic group—that would tend to develop the nation-state mentality at the provincial level. On this point it would be well if the past attitudes of Quebec towards its national minorities served as an example to provinces which have large French, German, Ukrainian and other minorities.
It would appear that the Prime Minister was expressing ideas in 1962 that his own royal commission reflected 16 or 17 years later. Yet the Prime Minister has rejected the thrust of the Pepin-Robarts report, although you would never have known that to have been the case if you read The Toronto Star article by Terrence Wills on January 27, 1979. The Prime Minister is confidently quoted as saying:
I would be happy to campaign on the Pepin-Robarts (task force) general approach to Canadian unity and the constitution.
I think it is the country’s loss that the Prime Minister did not follow his own advice and the advice of his own royal commission, that the thrust of a comprehensive and valuable report such as the Pepin-Robarts document should be simply dismissed by the Prime Minister and his advisers. I am sorry that the spirit of that royal commission is not present either in this proposed constitution or in the unilateral approach the government, of which the hon. member for Ottawa-Carleton is a part, is now taking.
I mentioned a few moments ago a concern, a reservation I have about the minority language educational rights in the Prime Minister’s so-called “people’s package”. I am worried, indeed convinced, that this proposed resolution here enshrines, enhances, protects part of Quebec’s language law Bill 101 forever in the constitution of Canada in so far as Canada’s immigrant population is concerned. Section 23(1) does guarantee minority language educational rights if you are a Canadian or a permanent resident and if your mother tongue is either French or English. That right is guaranteed to any Canadian citizen, to enroll their children in schools of first or second official language of their choice, in any province of Canada where numbers warrant minority language educational facilities.
However, that does not extend to any immigrant family going into the province of Quebec. A Portuguese family in Calgary or a newly arrived Hungarian family in Sudbury, or, closer to home, Greek, Dutch or Italian families in my own riding of Hamilton-Wentworth have the choice to educate their children in either English or French schools, where French language educational facilities are now available, except in Quebec.
Section 23(2) says that, in effect, any citizen of Canada moving from one province to another, and in this case it applies particularly to children, have the option of enrolling in the school with the language of their choice, that is, English or French, where numbers warrant in the case of the French language. But any immigrant family, be they our Portuguese friends from Calgary, or the Hungarian family from Sudbury, or the Greek, Dutch or Italian families from my area who move into Quebec must, under Bill 101, have their children enrolled in French schools. I really wonder why should an immigrant family which moves into the province of Quebec not have the same language rights as any immigrant family who, as it states in subsection (2) “changes residence from one province to another”
This is an astonishing omission by a prime minister who claims he is trying to protect minority language rights by enshrining them in his proposed new constitution of Canada, but who appears to be making an exception for the province of Quebec by his very legislation before us now. This document is silent about minority language rights for immigrants.
As I used to say when I was a reporter in the Press Gallery just above you, Mr. Speaker, this is the Prime Minister who, somehow, never quite got around to challenging the legality of Bill 101 in the courts. Now, from the point of view of anyone wanting to move to the province of Quebec, he is virtually enshrining it forever, for all of us, and especially for the vitally important ethno-cultural groups that make Canada such a marvellous mosaic, but which can only feel real freedom in nine provinces out of ten. That kind of principle, enshrined in this proposed constitution of 1980, is totally unacceptable to me as I am sure it will be to any non-Anglo-saxon and non-Francophone groups in Canada:
I should like now to quote the remarks of an acknowledged constitutional expert, as follows:
This proposed new constitution doesn’t help the immigrants one scrap. Bill 101 is allowed to continue to ride roughshod over them and it hits their children particularly.
Remember, Mr. Speaker, that “immigrants” in this case does not only apply to Third World people who wish to move to Quebec. Bill 101 affects people who do not know a single word of any other language but English. It applies to a professor coming in from the United Kingdom or the United States, immigrants from Australia, New Zealand, the West Indies—this new constitutional proposal does not look after them at all. Bill I 01 takes absolute precedence over any other law. If these various immigrant families knew that this proposed charter of minority language educational rights does nothing to give them the freedom of choice that they have every right to demand, and indeed can receive in the nine other provinces of Canada, then I suspect they might think differently about relocating in the province of Quebec. That would be a shame; it could only cause a further deterioration of the economy of that province.
Mr. Speaker, four words uttered at the very beginning of this debate go to the root of this government’s intentions, and go to the root of the Canadian federation as we know it. They typify this government’s attitude toward the traditions, the conventions, the very idea of what Canada is all about—four words, uttered in a moment of considerable emotion, and in impeccable English by the lead-off speaker for the government, the Hon. Minister of Justice (Mr. Chretien), He said “We will change Canada.” The emphasis, Mr. Speaker, is on the word “change”.
Now, contrary to what those on the government side and our friends on the left might think, the word “change” is not a call to arms to members of my party. I am definitely not one who is in favour of change for the sake of change. Speaking personally, as a progressive kind of Conservative, I welcome change which will truly benefit Canadian society; change which comes about, for example, in response to a social need, through reasoned debate and discussion, change which conserves the best of experience and traditions of the past, as one charts a course for the future. That is the kind of change in which I believe. But as an average Canadian citizen, I cannot help feeling that the present British North America Act has served this country pretty well during the past 113 years.
I know there is a restlessness, among the young people particularly, and in certain areas and regions of this country, about renewing and Canadianizing our constitution. That is an important feeling that must be addressed in any constitutional change. But it is Quebec that wants change most urgently.
All of this can be, and should be, understood by the rest of the country, and by those people who do not see the need for that kind of change—particularly since we have grown of age and no longer need to have our constitution controlled and amended by a foreign country. I can understand most Canadians sympathizing with that point of view.
What I very much resent, and I am speaking quite personally now, as a Canadian and as an individual member of Parliament, not necessarily speaking on behalf of my party, is the unseemly haste, the unnecessary tinkering and tampering with a constitution which is not only the foundation of 113 years of this country’s lifetime, but a constitution which our Fathers of Confederation built upon the precedents and traditions of several hundred years of the British parliamentary democratic system. That system, as Winston Churchill once put it, may not be the best system in the world, but it surely beats whatever takes second place.
Clearly, Mr. Speaker, this is a deviously dangerous document. No matter how often we on the opposition side try to point out how profoundly we disagree with certain segments of the Prime Minister’s proposed new constitution, members on the government side and members of the media choose to interpret this opposition in totality, if I may use a famous word. They disregard some of our very real concerns about the dangerous aspects of this document and choose to interpret any adverse comment about the Prime Minister’s image of the future of our country as, possibly, anti-patriation. Let me make clear on behalf of my party, for myself, and to anybody who is listening out there, that we favour patriation of the British North America Act. We favour Canadian control over a Canadian constitution. It is high time that we move now, as we should have moved ten or 15 or 20 years ago. Nobody will disagree with that basic principle. But one cannot rush into this kind of thing by a December 9 deadline.
As Thomas Jefferson wrote in a letter to George Washington, “Delay is preferable to error”. I am not suggesting another 53 years’ delay, but we do not have to do it by December 9. As I have said, this proposed new constitution is violating a fundamental principle on which this country was built. Whenever you violate a principle, you get a short-term gain but a long-term loss.
The Prime Minister stated at the close of the First Ministers’ Conference on the constitution that he sees two concepts of Canada. He saw two irreconcilable versions of this country expressed at the conference. One view, held by some of the provincial premiers, the Prime Minister said, was that Canada is an association of provinces, and that his own view was that Canada “is more than the sum of its parts”. The Prime Minister said:
There is a national interest which transcends regional interests. In a conflict between national and provincial interests, the national interest must prevail.
I found that very interesting. It might interest hon. members to hear the Prime Minister’s words from his book, “Federalism and the French Canadian”, published in 1968; I quote from page 191 as follows:
Federalism is by its very essence a compromise and a pact . . . It is a pact or quasi treaty in the sense that the terms of that compromise cannot be changed unilaterally.
I emphasize the last five words—”compromise cannot be changed unilaterally”. These are the Prime Minister’s own words, his own writings. The Prime Minister once again chooses to ignore his own advice. Mr. Speaker, I am a strong believer in the principle of a federal government’s role: Ottawa must act in the national interest when some premiers are acting as czars in their own regions. But the Prime Minister and I really part company when it comes to how strong the central government should be when conflicts arise.
The Canada I believe in is definitely not the Canada that this present Prime Minister is trying to mold in his own image through constitutional reform. Next time you see a picture of the original Fathers of Confederation, count them: 37 men came to a consensus and created a confederation nearly a century and a quarter ago. Canada then, as now, was in fact and still is a sum of its parts. Of course, then, as now, a strong leadership role was needed in Ottawa. But the federal nature of this country was respected, and it was practised with distinction under 15 prime ministers of Canada until the right hon. member for Mount Royal came along.
The Canada I believe in, and in which I have travelled extensively, really amounts to at least five, six, and I feel maybe seven different countries, or regions, each with its own geographical and sociopolitical point of view: Atlantic Canada,
Quebec, Ontario, the prairies, British Columbia, the Yukon and western Arctic, and then perhaps put the eastern Arctic, northern Quebec and Labrador into another not-so-small area.
Within these major regions, you will find developing areas of self-interest and uniqueness. Canada’s newest province, Newfoundland, not only· resents being lumped in with the maritimes, but one must now refer to Atlantic Canada and Newfoundland and Labrador. I know from sitting immediately behind my hon. friend from Parry Sound-Muskoka that more than geography separates northern Ontario from the more materialistic and heavily populated southern and western parts of this province. I cannot imagine three more unusually different experiences than visiting Manitoba, Saskatchewan and Alberta. It is almost impossible to believe they are neighbours. It is almost like comparing Nova Scotians with Prince Edward Islanders or New Brunswick Acadians with the folks you meet in St. Boniface.
As for British Columbia, I have come to respect the description of politics in British Columbia offered by a former colleague of mine in the press gallery, Allan Fotheringham. He describes politics in British Columbia simply as an adventure. Mind you, he does go on to describe politics on the Prairies as a cause; here in Ontario as a business; in Quebec as a religion, and in the maritimes as a disease. That is the mosaic of Canada as seen by Mr. Fotheringham. We are breathlessly awaiting an appropriate description of politics in Newfoundland. I am actively consulting the hon. member for St. John’s East (Mr. McGrath) and the hon. member for St. John’s West on that matter, Mr. Speaker.
The point I am trying to make is this: as diversified as we are, as many strains as we go through in this nation, we began by consensus. We have survived for 113 years by consensus. Our differences were always reconcilable. They are reconcilable still. What in the world is the use of denying that fact? Why is government moving in a fashion that could tear this country apart?
By nature, I am an optimist. As a Canadian, I have always been fiercely loyal and proud of my country. The Canada I have known, the Canada in which my family and I live today, the Canada I want to see in the future for my son and for his children and for their children, is a country that builds on the 113 years of its past with all its conventions, its traditions, its incredible diversity and its indefinable character. I see a Canada of the present whose people too often take for granted how very lucky we are to live in freedom, and, when one looks around the rest of the world, how remarkably well off we are.
And when emotions cool in the wake of this constitutional revolution, I pray for very positive chances for Canada in the future. But I say this to the Prime Minister (Mr. Trudeau): that future Canada cannot happen unless and until he adopts a more reasonable attitude toward constitutional reform. His government must replace conflict with consensus. It must replace controversy with compromise. It must replace confrontation with toleration.
I urge the government to show respect for Canada’s past, to show some understanding of the tensions and differences in Canada’s present so that Canada will have a positive and worth-while future.
Hon. Gerald Regan (Minister of Labour): Mr. Speaker, I suggest, the resolution we are considering at this time requires the serious and non-partisan attention of all those honoured to sit here in the highest directly-elected position our country affords. Virtually every member of this House will agree that the debate now taking place to resolve the patriation of our constitution is long overdue. We may differ as to the exact contents of the resolution as political parties are wont to do. Surely no one in this chamber shares the reported view of Premier Rene Levesque that our constitution should continue to remain on the other side of the ocean.
A little later in my remarks I want to discuss the provision in this resolution for a deadlock-breaking mechanism by way of a referendum. I want to pay particular attention to what the Right Hon. Leader of the Opposition (Mr. Clark) had to say on that subject.
First of all, I would like to make some more general remarks about the constitution itself and the provisions which are contained in this resolution. I think that as Canadians we have long been embarrassed to say in front of an American, or a person from another country, that after 113 years of independence, we still have to go overseas—to England—to request amendments to our constitution and that the British parliament must act with elected representatives from all over the British Isles, none from Canada, to consider Canadian questions.
When I was associated with the Commonwealth Parliamentary Association, like other members here, I became involved in a discussion one day with a chap from Sierra Leone, and one or two others, and they would not believe me when I told them we still had to go to London to have our constitution amended. It is not only embarrassing, it is unbelievable.
If we accept that such a situation should end, let us examine the question of how it should end. I believe a resolution, such as the one before the House now, preferably with the concurrence of all the provinces, would unquestionably be ideal. This is what, all of us would wish. If there is a difference, perhaps it will lie in the wording I will turn to later—how long can one wait or should one wait to achieve that ideal and whether Canadians are content that we should go on decade after decade without our constitution having been brought home.
Unfortunately, in 53 years of attempts to achieve the desired unanimity among all the provinces, it has not been possible The hon. member for Hamilton-Wentworth (Mr. Scott) who has just spoken talked of unseeming haste. I can hardly classify him as a red Tory after that remark; that is some haste—53 years. I believe I can establish pretty reasonably to the benefit of the independent observer that if unanimity were not possible in 53 years it would be no more likely to occur in the 70 years between now and the year 2050. Before I do that let us ask the question: if unanimity cannot be achieved, are we
content-the members of this House, the public of Canada—to leave the constitution at Westminster for those 70 more years.
Mr. Epp: Nobody is saying we should.
Mr. Nowlan: You were here on Monday, you heard.
Mr. Regan: I heard the Leader of the Opposition and I will be turning to his remarks in due course.
An hon. Member: What are you talking about?
Mr. Regan: I appreciate the desire of hon. members to make interventions, but I want them to hear me out for a while.
Mr. Epp: Stay with the facts and we will.
Mr. Regan: I will stay very close to the facts indeed.
Each person is entitled in this debate to express his or her own opinion in this forum of democracy. Surely at the end of this debate, the rules for determining a majority will prevail only after a serious and detailed study of the provisions of the resolution and of possible alternatives. But as one legislator, the opinion I express and the way I shall vote will be in the direction of patriating our constitution at last in a final, substantive and also symbolically important move to establish our destiny as a great and free country.
It is high time we did this. No longer can excuses be found for further delay. Perhaps the hope that we harboured for so long in this country and the Prime Minister (Mr. Trudeau) pursued for some 12 years, that of achieving unanimity among ten provincial governments with ten different interests and points of view, was too much to cherish, Certainly the president of the United States would not call together the 50 governors and expect them to agree unanimously on anything. Let me give an example.
There are deeply-held views as to whether civil rights should be entrenched in the constitution. I happen to believe it should be in today’s society, but is it likely or logical that ten premiers would have a unanimous opinion on whether civil rights should be entrenched? If you take any ten people, one or two will feel the system works better without entrenchment of rights. I think the majority would feel they should be entrenched. I use that to illustrate that to achieve unanimity on all the items that go together to make up this resolution is a virtually impossible task.
If one accepts my position that inability to achieve unanimity cannot be allowed to thwart indefinitely the aspirations of the Canadian people to bring their own constitution to Canada, the next question that follows is whether we have tried hard enough and long enough to achieve unanimity and whether further efforts would be likely to yield different results. On that point I speak from the vantage point of having participated in the constitutional renewal process as a provincial premier from, if you like, the other side of the table and the other point of view.
While I served as premier of Nova Scotia, I participated in the constitutional first ministers’ conference at Victoria in 1971. In succeeding years, I took part in 23 first ministers’ conferences. In Victoria, there were people like Premier Strom, for whom I have always had a great respect, Premier Bourassa, the late W. A. C. Bennett and various others who were premiers at that time. Those who held office changed as years passed.
In those 23 first ministers’ conferences I came to know how they operate in closed sessions as well as in public. Of course, the talk changes when the prime minister and the premiers go into a closed room. Nine and a half years ago in Victoria we came closer to unanimity on the constitution than ever before, or since. We were closer than is likely ever to happen again, given the emergency of the resource issue and the growing tendency of many premiers to hold Canada’s aspiration for patriation of the constitution hostage for the yielding of evermore federal powers to the provinces.
Some hon. Members: Hear, hear!
Mr. Regan: My remarks are consistent. When I was a provincial premier, I believed in a strong central government as being the essence of Canada, and as a “fed”, I continue to believe in it just as strongly.
Some hon. Members: Hear, hear!
Mr. Regan: I do not fault some premiers because they have a different view of their responsibilities. They have the problem of meeting the demands of their people and the frustration of limited powers in doing so. Some would say these negotiations have dragged on. As new issues have come forth, they would agree to entrench civil rights if more federal power would be given to the provinces. They want to trade the people’s rights for more power for their governments.
Some hon. Members: Shame!
Mr. Regan: I do not even say “shame!” I say it is unfortunate. It is misguided. It is not a process that will bring us a new Canadian constitution because we already have the most decentralized federation in the free world. We must retain a residual amount of power, financial power, in the central government or the country will become balkanized with very different levels of standard of living and nothing in common which can hold nationhood together.
For a period of time after Victoria and in those succeeding conferences, I believed that continuing efforts would overcome the outstanding issues. At Victoria we came very close. Only one government held out against unanimity. I thought that through compromise, persuasion, the passage of time and other meetings we might perhaps achieve unanimity. What I did not then realize but now see clearly is that it does not work that way. The identities of premiers and parties of government keep changing. If there is one characteristic of a new government, it is the desire to distinguish its policies from that of its predecessor. It seems to be a primary requirement for new governments to do this, regardless of what their politics may be. The result
is that just when unanimity seems in sight, you have a crop of premiers with new and different demands. Like the child’s game of red light, you have to go back to the starting line and start all over again. That is what our society has done.
When I was defeated as premier in September, 1978, I was the senior premier of all the provinces. In other words, I had been premier longer than anyone in the country, except for the national Prime Minister, and that was after only eight years in office. I think this illustrates the rate of turnover in a business that is characterized by a lack of security of tenure. That of course complicates the problem of new governments coming in with new issues.
As premier, I wanted the principle of equalization entrenched in the constitution. I am mighty happy to find that it is going to be. That is what I was laying on the table when looking at it from a provincial point of view.
My successor in that office in Nova Scotia has new and different demands to place on the table as a condition precedent to agreeing to patriation of our constitution, as do many of the other premiers. I suggest it will always be thus if we continue the barren search for unanimity. I have therefore concluded that we are correct, wise and expressing the will of the vast majority of Canadians in moving ahead with patriation at this time.
There is one point I would like to make in that regard. Our great Prime Minister and this government approach this necessity with resignation and with regret that unanimity was not possible.
Mr. Friesen: First, the resignation!
Mr. Regan: Some of his opponents for political purpose try to paint a gleeful picture of the Prime Minister moving ahead without the provinces. All the evidence shows how contrary this is to the truth. Twelve years of patient effort by the Prime Minister to reach agreement with the provinces provides articulate testimony of a determined and sincere effort to achieve unanimity. Twelve years of ever-escalating concessions by the federal government demonstrates remarkable flexibility in the desire to achieve agreement. To me, at least, the foregoing facts require that the present type of action be taken if we are ever to have our own constitution. This I believe.
May I then turn to the contents of the resolution as to whether they are adequate and appropriate to establish a constitution based in Canada which will enable ongoing negotiations with the provinces on any exchanges of powers and responsibilities that will enable our respective levels of government to better serve the people.
First of all, if we are going to bring home the constitution, if we are going to pass the resolution and patriate the constitution, we must have an amending formula. It is necessary because if you do not have a specifically expressed amending formula, a requirement for unanimity might lead to a straitjacket situation, and no future improvements could be made to the constitution even though the great majority of provinces would want them.
The question of the type of amending formula is, of course, one on which there has been much debate. I personally agonized over the Victoria formula because it seemed to give a veto by population to some larger provinces but not to some smaller provinces. I cannot accept the concept of two classes of provinces, yet the only alternative might seem to be unanimity, which is worse.
I think the position the Prime Minister has taken has again shown remarkable flexibility. Let us take first the Victoria formula on which we came closest to achieving unanimity, with nine out of ten premiers accepting it and the tenth accepting it for three or four days until he backed down from it.
Mr. Chretien: Fourteen days.
Mr. Regan: Let us take that, but let us provide, as the Prime Minister said at the recent conference, that if the provinces have a better one they can bring it forward. They have two years, I believe it is, in which to do that.
Mr. Epp: What percentage do they need? I think it is 80 per cent.
Mr. Regan: He did say that.
Mr. Chretien: It is eight provinces, 80 per cent.
Mr. Epp: That is not unanimity.
Mr. Regan: If the provinces come forward then we can have a plebiscite on the subject.
Let me refer to the second item, the entrenchment of basic civil rights. I believe this is necessary to protect citizens today from any excess of government. I respect those who hold contrary views, but this is obviously a matter to be decided appropriately here by majority opinion.
The third item refers to language rights. Language rights must be included. Surely this is the essence of the commitment we all made as Canadians a few months ago when we were combatting separatism. When that was at its height and when we were not certain how the plebiscite in Quebec would go, each and every one of the premiers and each and every member of this House, or virtually all, would have been prepared to grant that quickly. How quickly we forget. I think this is vital; it is the essence of what our country is all and it must be included.
What else does this resolution do? It enshrines the principle of equalization. As a Nova Scotian I am delighted with the words. I find that they are very strong and very satisfactory.
I could talk about mobility of workers, which I consider important, but I want to get on with other matters.
The fifth refers to a deadlock-breaking mechanism in the ultimate event of serious and continued difference between the federal and provincial levels of government. That, of course, is
very important. One might well ask whether a deadlock-breaking mechanism is necessary or whether a referendum or an appeal directly to the people of Canada is the appropriate mechanism to break that deadlock.
The first thing to remember is that a way to break such a deadlock between provincial and federal interests has always existed. It has existed for the 113 years of our confederation. But that method will go out of existence the instant the constitution is patriated. It will no longer be there. That safety valve will be gone. That residual power has always been vested in the British Parliament, which has the power to amend the BNA Act without unanimous request. It is not important whether or not the British parliament used that power. In an emergency it was there, and the fact that it was known to be there had a salutary effect on many considerations.
When we bring home the constitution we shall be living in sew circumstances. The British parliament will be washing its hands of Canada. It will say it will not enact any more legislation, and its members will probably say thank God they are rid of us. But that parliament will no longer be in a position to be the safety valve, no longer there to be the deadlock-breaking mechanism. We must substitute a new deadlock-breaking mechanism or have none.
I fear that those who assail the deadlock-breaking mechanism by way of referendum have not applied logic to understand the result of not having one. I for one would be extremely uncomfortable to have a constitution in a federal country as diverse and as vast as Canada without provision for an ultimate appeal to the people, or some deadlock-breaking mechanism.
Surely as Canadians, with our fights between the provinces and federal governments, we have demonstrated ample capacity to reach a deadlock. In all such cases does anyone really believe that a straight-jacket of the status quo is preferable to an appeal to the ultimate sovereignty of the people? If that appeal, that deadlock-breaking mechanism, is not to be to the people by way of a referendum, what else? Would it be an appeal to the Dalai Lama, or some other provision? I think that does not make much logic, and that, of course, is where I quarrel with the Right Hon. Leader of the Opposition (Mr. Clark).
The Right Hon. Leader of the Opposition is a man for whom I have very considerable respect, a respect beyond that which his office and past offices command, but for him to say in very dramatic fashion that section 42 would or could destroy the provinces and could destroy Canada is a very extraordinary statement.
The right hon. gentleman must know that it provides a narrower opportunity of breaking a constitutional deadlock than presently exists and is, therefore, less of a threat to the provincial powers which he mentions. As long as the constitution remains in England the British parliament has the ultimate residual power to make any change, regardless of how drastic. The constitutional practice has been that the British parliament will act on a resolution of the national Parliament alone. This government is giving up that residual emergency route in bringing home the constitution.
The only case I know of when a province tried to go directly to the British parliament was after Nova Scotia came into confederation in 1867 without a plebiscite in Nova Scotia and the people objected to what the legislators had done. Joe Howe and some of our other boys went overseas and tried to get the British parliament to reverse it. They went as far as getting an independent, John Bright, to make a speech in the House, but the government at Westminster said then, and they have said ever since, that they will deal with the national government of Canada.
This government has far more power to bypass the provinces than it would have under this new provision. Despite the fact that the power has existed for 113 years it has not been used to destroy the provinces. The Leader of the Opposition by his remarks places less confidence in the Canadian people than he does in the British parliament. I would hate to think he shares with Rene Levesque comfort in retaining a somewhat colonial status, for if he is willing for patriation I find it hard to believe he would want a constitution without a safety valve. Let us see if his fear is well based, or whether it is another case of contrived hysteria.
In what situation would section 42 be used? It would be used if fundamental disagreement existed between the federal government and some premiers on a constitutional amendment that became necessary and important to the country because of circumstances that could not possibly be foreseen now; maybe 50 or 100 years from now. When you lock yourself into a constitution you lock yourself into it forever.
Let us ask how safe is that safety valve? This appeal to the sovereignty of the people when there is a deadlock between the provinces and the federal government does not just require a majority of the people across the country voting for it.
Because of the regional nature of Canada, the Victoria formula requires that a majority of the people in the Atlantic provinces, a majority of the people in Quebec, a majority of the people in Ontario and a majority of the people in the west turn their backs on their premiers and vote for the federal proposition. That is a very dangerous proposition, is it not? Do hon. members remember the days of the clash between the Right Hon. Mr. Diefenbaker when he was prime minister and Joseph Smallwood who was premier of Newfoundland? It had something to do with a strike there. They had a terrible clash. If an appeal had been made by way of a plebescite by the federal government, do hon. members think the federal government would have had any chance of carrying a majority in Newfoundland against Mr. Smallwood? Obviously it would be equally ridiculous today. Let us suppose that a federal government was trying to take resources away from Alberta and a plebescite were called in Alberta. How great are the chances that the people of Alberta would vote against Peter Lougheed, for the “feds” and for a transfer of the resources? Hon.
members from Calgary would tell us that the chances are not very great.
Mr. Blaikie: Mr. Speaker, I rise on a point of order. The hon. minister seems to be unaware that the proposal as it stands would enable the government to do just that, that it is not a majority in the west but a majority in two of the western—
Mr. Deputy Speaker: Order, please. That is a point of argument and not a point of order.
Mr. Regan: Mr. Speaker, I have read the proposal well, and if the hon. member had followed my words, he would know that I was giving him an example of regional feelings, and that is exactly the situation.
Mr. Nowlan: Explain P.E.I., then. As a man from Nova Scotia you eliminated P.E.I.
Mr. Regan: I would like to get on with my own arguments, and if there is time afterwards I would be happy to try to deal with that question.
The Leader of the Opposition suggests that provision 42 could do away with the very existence of our provinces. That is so only if the people of every single region of Canada were insane enough to vote to do away with the provinces. Can hon. members imagine that situation? What the Leader of the Opposition does not say is that equally it can be used to destroy federal powers because in any appeal to the people certainly if the people are going to vote in such an irrational way, there are dangers, but just as much danger to the federal powers.
Let us assume the unlikely proposition that a government such as the one led by the Right Hon. Leader of the Opposition last year was again elected, with its passionate urge to divest the federal government of many of its powers. Let us assume such a government was trying to give things away to the provinces as the previous government did, the lotteries and everything else. Even if some premiers felt this was bad and that strong central government was important, the Leader of the Opposition, the then prime minister, could, under this provision, appeal over the heads of those premiers who objected and believed in strong central government.
Such a government could appeal in the referendum process and, if the people were foolish enough, he could pass an amendment which would strip the federal government, by referendum, of its powers. It works two ways.
Perhaps either proposition falls into the “pigs might fly” category, but I think that my illustration shows that an appeal to the people region by region is no more dangerous to provincial powers than it is to federal powers. This deadlock-breaking referendum power we have talked about in provision 42 may never need to be used. Its very existence probably will discourage totally unreasona hie positions because of that possibility of appeal to the people. The people who are here in this room know the democratic process better than anyone else, and they know very well that no government will make an appeal by way of a referendum if it thinks it is likely to lose it, because it would lose face and support.
Mr. Chretien: Look at Quebec!
Mr. Regan: Look at Quebec is right. The essence of our position is that when federal and provincial governments fail to agree on a proposed constitutional amendment, it is because they have different perceptions of what is in the best interests of the Canadian people.
Since both levels are elected by the same people, it is only reasonable that the people themselves should be asked to decide which level of government they agree with and, hence, break the deadlock. However, because we are in a federal system, we are adopting the double-majority system, that is, a majority of the people in the whole country including a majority of the people in each region of the country.
This is not some new and wild idea that is just tossed out now. In the 1979 campaign the Prime Minister talked of the necessity of a deadlock-breaking mechanism by way of referendum. It can only be opposed by the presumption of those who trust politicians more than they trust the basic common sense of the Canadian people.
Premier Blakeney has raised the question as to which level of government should trigger the referendum process. I believe it is appropriate that the level which has always been referred to as the senior level should do that, only because it speaks for citizens in every part of the country, something no one province can do. I admit that the premiers today have a preoccupation with acquiring more power, so perhaps they want to have powers in that regard, but not unnaturally the provinces can seldom agree among themselves, as we saw in the case of the amending formula, so they hardly could be the group to undertake the beginning of the process on a referendum.
In a federation we can make the two levels as equal as we like, but there must be some way to break the deadlock. In such a situation, to give supreme power to the federal government to break the deadlock would lead to a great outcry. To give it to the provinces would be against the obvious will of the Canadian people. So, instead, what this resolution would do would be to give it to neither. It gives that final right to break the deadlock to the sovereignty of the Canadian people.
That was what was done in Australia. The only amending formula there is a referendum based on a resolution of the federal parliament. It is not necessary that the states agree, but the resolution must gain the support of a majority of the people in six states and a national majority. So the situation there is very similar to ours. Has it destroyed the federal system in Australia? Has it destroyed the states? Not only has it not done so but, in fact, only four out of 24 amendments since that country became a federation have passed. Why? It is because the states have been able to defend their interests by going out to their people and urging them as to vote in a certain way. That is the protection that is there. It is the sovereignty of the people.
I want to say one other thing about referenda and their effect on this country. These are important words to consider when we talk about whether the public comes up with a wise decision in its vote in a referendum. The Quebec legislature would have voted for separation. There was a majority of separatists. If the final authority in Quebec had been in the legislature, Quebec would have voted for separation. But the people of Quebec voted for Canada in that referendum. That is the difference.
Some hon. Members: Hear, hear!
Mr. Regan: I have one more example of why a referendum has proved to be good in this country. I wish the hon. member for St. John’s West (Mr. Crosbie) was here. If there had been a vote by those elected to the founding legislature of Newfoundland in 1947, 1948, 1949 or whatever the year they first met was, they would have voted against joining Canada. The hon. member for St. John’s West, his family and the rest of the merchants of Water Street were the ones who were deadly against joining Canada.
Mr. Nowlan: Don Jamieson.
Mr. Regan: However, because it was possible to make an appeal to the public by way of plebiscite—the legislature would have voted against Canada—the people of Newfoundland voted for Canada, and that is why Newfoundland is in the country.
Some hon. Members: Hear, hear!
Mr. Nowlan: Don Jamieson lost.
Mr. Regan: I want to finally to refer to the irresponsible position taken by the Right Hon. Leader of the Opposition. After going through the whole document trying to find something he could attack, some reason to be different and to justify his position as Leader of the Opposition, his choosing this referendum process is a pretty weak effort.
Mr. Speaker, the national government has responsibilities that no one province can fulfil. The fact is that at federal-provincial conferences, since the very first one, it is always the prime minister of our country who presides. He is the chairman. Whether we like it or not, in a federal system there has to be a difference between the national government and the provincial government.
Some hon. Members: Hear, hear!
Mr. Regan: I believe, with all the strength and conviction of my body and soul, that in this resolution the Government of Canada is properly discharging its responsibility. So let us get on with having a Canadian constitution and doing away once and for all with the embarrassment of admitting to people from other countries that we still have these remnants of a colonial past.
Mr. Friesen: Mr. Speaker, I rise on a point of order. I wonder if the minister would permit me to ask one question, since he has about three minutes left of the time allotted to him.
Mr. Regan: Certainly, I would be honoured.
Mr. Friesen: The minister is surely aware that, for example, postal workers have a right, within their union, to prevent movement of postal workers from one locality to the other without prior consent of their local. It is true also in the International Brotherhood of Electrical Workers each local can certify its workers and prevent workers from another local moving into its area without the certification of that union. This is clearly in contravention of this provision in the constitution. I wonder if he, as Minister of Labour (Mr. Regan), is willing to go to the postal and electrical workers and tell them that under this section their rights will be declared unconstitutional?
Mr. Regan: Mr. Speaker, I thank the honourable and distinguished member for his question but I do not think it particularly relevant.
Some hon. Members: Oh, oh!
Mr. Regan: What this provision establishes is the right of a person to seek employment in any part of the country. That does not mean that there cannot continue to be professional requirements, for example, that only a qualified lawyer can become a member of the bar. If, on the other hand the requirements placed against a person moving to another area and joining a new local or new association are unduly restrictive, it is quite possible that the Supreme Court, in interpreting the provisions of the constitution, might find, in some extreme circumstance, that there was a breach. If that is the case, then, like all good citizens-and there are no better citizens than members of the trade unions-unions will conform. I have no doubt of that whatsoever. I hope that deals with the hon. member’s question.
Some hon. Members: Hear, hear!
Mr. Nowlan: Mr. Speaker, I happen to be the next speaker, as the minister knows, but I should like to ask the minister a question in view of something he said in the closing remarks of his speech. I know he is trying to catch a plane, but would he permit me a question before I start my own interesting comments on the substance of the resolution and perhaps indirectly on some comments made by the minister?
Since the minister and I share a certain piece of geography in the deep east, I should like to ask him a question on the amendment procedure prescribed in section 42. Would he agree with me that because of the population distribution, in effect when you refer to two Atlantic provinces forming 50 per cent of the population in the Atlantic region, you bar Prince Edward Island forever and a day, together with any other
province, from having a say because in the Atlantic area three provinces are needed to obtain 50 per cent. Therefore the provision would eliminate one of the four Atlantic provinces, of one of which the minister was premier at one time?
Mr. Regan: I thank the hon. member, who comes from a great Nova Scotia family and whom I have known since he was about 16 years old and a so-so tennis player. I thank him for his question and I say to him, through you, sir, that I beheve it is under the Victoria formula that two provinces or more are required in a region, constituting 50 per cent, and certainly Prince Edward Island can be part of the majority. But Prmce Edward Island and one other province alone would not constitute the needed number, based on the present population. However, when you draw up a constitution, heaven knows what the population changes may be tomorrow. They are drilling for oil in P.E.I., they may establish it and maybe their population will grow. Let me point out that the Victoria formula was not something that was thrust on us by the “feds”.
An hon. Member: We are talking about section 42.
Mr. Regan: Yes, but the regions are based on the Victoria amending formula, the same regions as are outlined in the Victoria formula which was developed by the premiers, and I was one of them.
Some hon. Members: Oh, oh!
Mr. Deputy Speaker: Order, please. The hon. member’s time has expired. The Chair recognizes the hon. member for Annapolis Valley-Hants (Mr. Nowlan).
Mr. J. P. Nowlan (Annapolis Valley-Hants): Thank you, Mr. Speaker, I know the minister has to go and I do not wish to take up too much time commenting on his remarks, but I hope he has taken the bill with him on his plane ride west and will really read it because there is a real difference between the Victoria charter, the Vancouver proposal and the amendment procedure under section 42 which effectively rules out Prince Edward Island, because of the population statistics, from having any input by itself together with one other province. The fact is that two provinces are needed under the Victoria charter and the Vancouver proposal. They spoke about two provinces in a region, not about 50 per cent of the population which would effectively eliminate Prince Edward Island under section 42. But the minister has gone and what he has said will stand on the record. I say again, I hope he will read the resolution. Frankly, I do not think many members, including government members, have read the resolution, and I know we did not have much opportunity to read it, although it is pretty fundamental in terms of the future of this country.
A week ago last night the Prime Minister (Mr. Trudeau) in calling Parliament a week early, said that all members from coast to coast would have the opportunity to make a speech on a subject that cannot be any more important than what we are talking about, which is basically the heart and soul of this nation. This constitution is bound up in phraseology and legal verbiage. You can talk about patriation, although it is not very sexy, seductive or exciting, but the fact is that when you shake it all down, you are talking about the heart and soul of this country. That is why, right from the start, I want to make it clear, as my leader made it abundantly clear on Monday when this debate commenced, that there is no member in this party, nor is there, I believe, any member to my left in the New Democratic Party, who is against the patriation of the constitution, the bringing of the constitution back from England to Canada. If that is what we want to do, it could be done on one page which could be agreed to in one hour. We would not have to send Mark, Luke or John cap in hand to have tea with the Queen.
I will talk about the constitution in a very calm way because it is a very serious matter. It strikes at the very foundation of this country. Before I come back to the matter of the patriation of the constitution let me say that it occurred to me on Thursday night when I was listening to the Prime Minister— and I say this to members in an objective way-and then to the Leader of the Opposition (Mr. Clark), followed by the leader of the NDP (Mr. Broadbent), that we are talking about the polarization of the two solitudes in their constitutional dimension. This is what I thought when I heard the Prime Minister’s speech over the national airways and also, to a lesser degree, when the debate started here on Monday. The reason I say that is the following. I used to practice law and it was only when talking about the constitution relatively recently that the great difference in philosophies became apparent to me. I am not saying that one approach is right and the other is wrong, but this is the polarization of the two solitudes because these are two fundamentally different approaches. I listened to my Prime Minister speak about freedom in the land and say we need freedom here and freedom there. I can understand this coming from the Prime Minister because he was brought up under the civil code. I will not make pejorative comments and say one is Gallic and the other Napoleon against the British, and I hope my friends opposite will understand that when I refer to the British I will try to stay within the common law and I will try to stay even tempered and take any pejorative overtones out of my comments. We are talking about civil law and common law. Under the common law in nine of the provinces, every Canadian has every right and freedom in the world except those restricted or abridged by law, yet under the civil code one has no rights unless one can point to a piece of paper, a right or freedom. This debate is very interesting because it starts out from two separate polarities ties; it is almost like the north and south poles. It is difficult to bridge the gap between those people who believe in and have been brought up in the jurisprudence of common law and those who have been very ably brought up in the jurisprudence of the civil code. Later in my remarks I will have more specific comments to make about the entrenchment of the bill of rights in the constitution, but in general as one listened to the Prime Minister and the Leader of the Opposition on that Thursday night, one would have thought, from some of the interpretations that we really did not have the freedoms unless they were put on a piece of paper. The whole foundation of this county in nine provinces is that we have all the rights in the world
except those that say, “Stop at a stop sign, do not drive too fast, do not drink too much and do not kill somebody”. Those are the laws that have restricted the open-ended common law. I am not making any judgment as to which is right and which is wrong, but I will repeat, just to accentuate the point, that they are two fundamentally different philosophies. Under the Civil Code one does not have any right to do anything unless one can point to it in some constitution, some bill of rights or some charter. So, we started off in this debate with the north versus the south, the common law versus the civil law. That presents problems or makes it much more difficult when we try to come to a consensus. I will not be pessimistic like the Minister of Labour (Mr. Regan) and say that unless we adopt this resolution forever and a day we will be behind the eight’ ball on amendments, patriation or anything. I do not believe that for an instant. I just want to paint the picture1 which I do not think has been painted well enough in this debate, of those two streams of jurisprudence which start out from two different poles. The members of this chamber are elected by the people. Hopefully the job of this chamber and perhaps eventually that of the other place-although I would not mind abolishing the other place, but that is another question-is to try to bridge those parallel streams of jurisprudence to come up with some kind of document. But, I come back to where I started. The debate concerning rights and an equalization formula must take place in this chamber.
I take exception to the false rhetoric of the Minister of Labour and those men of straw on the other side, those punching bags of false rhetoric. This party believes in patriation. Earlier we said that we want patriation if it is on the basis of the Vancouver proposal or, as far as I am concerned, the Victoria proposal. On Monday when this debate started, my leader said we were in favour of patriation on the basis of the Vancouver proposal, the most recent proposal and an adaptation of the Victoria, proposal. There is no equivocation on those two points. I do not know why a minister of the Crown, charged with responsibility in the administration of this government, would take five or ten minutes of his time beating arounds the bush and taking this “man of straw” approach. He suggested by inference that the opposition was against patriation. As I said earlier, there is not a member of this House who likes the situation. We are very much for patriation on the basis of what my leader said in his masterful speech here on Monday. That is the basic issue. As I think all members have tried to accentuate in different ways, we do not want some joint resolution to go from this chamber to Westminster in London, on the banks of the Thames, in order that British legislators may debate our fundamental rights. That would be an insult to me as a legislator and it certainly reinforces what my leader said on Monday. We can throw names around. It is not that they solve anything, but they are good for debate. The proposal of the government indicates that they are the last of the colonials, going hand in hand not toward patriation or an amending formula, but going forward with the 16 pages of detailed fundamentals and an equalization formula. If given a chance, I would have asked the Minister of Labour where he saw the words “equalization payments”. They are not there. The equalization formula in this resolution is very weak and needs to be improved, but if we cannot improve it here when the committee finally decides and comes back with a resolution to this House, I do not want a legislator in England who comes from some constituency in the Midlands to start telling me, in areas of economic disparity, how the “colonials” over here are supposed to work with an equalization formula or that “we in Britain know better”. The whole thing is topsyturvy. If members across the way give us patriation based on the Vancouver proposal in that resolution with an amending formula, this matter will get through within a day. Then it will come back here and at the proper time we can put in a timetable. We will debate all those things.
It is not just the comments of the Minister of Labour, but the general thrust of the remarks of those in the government. If I were in the government, I suppose I would try the same thrust. Not only do they paint the opposition as being against patriation, it is the same canard when it comes to unanimity. The very fact that in this debate my leader said we were for the Vancouver proposal eliminates the problem of unanimity. I agree it will be difficult if not impossible. Frankly I think the premiers would agree that unanimity on changing the basic constitution would be difficult, if not next to impossible. Perhaps after 53 years we should still try, but there is a big difference in recognizing that unanimity is not necessarily the answer. After all the false starts, there is a fundamental difference between recognizing the reality that unanimity creates problems and going completely to the other side, going unilaterally without consultation with the provinces. One cannot have it both ways. I think the Minister of Labour was sincere, but I understand the realities of unanimity. I suggest to members of the government who have not fully assessed what might happen with this constitutional proposal and other things Parliament will decide, hopefully before Christmas, that they have underestimated a basic feeling across the country. The Minister of Labour said my leader was extreme. I do not know how many times he has talked with the people west of the lakehead, but as it is almost four o’clock I will close this part of my address with the following thought. I am here as a legislator. I am glad about the vote on May 20. I hope we can redeem pledges that were made to Quebec, however they are interpreted, albeit Quebec is a province with a very definite identity that must be respected in ways the Prime Minister is not prepared to accept. But one does not redeem a pledge to a province or a region such as Quebec and forget the larger responsibilities to the country as a whole. If the proposal upsets the country as a whole, what has been accomplished when one says that a pledge to a part has been redeemed?
May I call it four o’clock, Mr. Speaker?
Mr. Deputy Speaker: It being four o’clock, the House will now proceed to the consideration of private members’ business as listed on today’s order paper, namely, notices of motions, public bills, private bills.