Canada, House of Commons Debates, “Establishment of Special Joint Committee of the Senate and House of Commons”, 32nd Parl, 1st Sess (17 October 1980)

1980-10-17 Leave a Comment

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Date: 1980-10-17
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1980 at 3792-3805.
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THE CONSTITUTION

ESTABLISHMENT OF SPECIAL JOINT COMMITTEE OF THE
SENATE AND HOUSE OF COMMONS

[Page 3792]

[English]

The House resumed from Thursday, October 16, consideration of the motion of the Minister of Justice and Minister of State for Social Development (Mr. Chrétien):

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 he 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. Paul Dick (Lanark-Renfrew-Carleton): Mr. Speaker, last night before ten o’clock I had the opportunity to start my comments. I had five minutes then, and I believe I will have six minutes now. I do not know if there will be other questions of privilege, but I would hate to divide my allotted 40 minutes into five-minute segments. So that my allotted time is not divided into three segments, I wonder if the Chair would allow me to call it one o’clock; then my time would be divided into only two segments.

The Acting Speaker (Mr. Ethier): Is it agreed that we call it one o’clock?

Some hon. Members: Agreed.

The Acting Speaker (Mr. Ethier): 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.

AFTER RECESS

The House resumed at 2 p.m.

Mr. Dick: This will be my third effort to get started on this and I hope I will be able to complete my remarks in the 35 minutes I have remaining. Last night I made a few opening remarks which I concluded at page 3764 of Hansard, and I will pick up from where I left off last night.

I said I felt there was a consensus in Canada; in fact, I thought there was unanimity in Canada among all levels of government and all parties, whether provincial or federal, that the constitution be patriated to Canada. I also said that in the “Shorter Oxford Dictionary” definition of “consensus”, where it refers to a government, it means a majority view. I think we do have a majority view, or a consensus, in Canada on the amending formula. I felt that the consensus probably revolved around the Vancouver amending formula rather than the Victoria amending formula.

I feel one thing which must be spelt out is that a consensus is most important in dealing with the fundamental law of our country, and the constitution is the fundamental law of our country. As much agreement as possible is necessary for a law to have the maximum respect. If law is not respected, then it will become ridiculed and, if it becomes ridiculed, faith in the law will be diminished and we head toward plain disrespect for the law. This is illustrated today by the example of the law in Ontario where people under the age of 16 are not allowed to use vending machines—that law is disrespected. The law dealing with the smoking of marijuana is a disrespected law in its present form. That, of course, can lead almost to anarchy,

[Page 3793]

as recently illustrated in Iran where the people lost faith in the existing constitution and there was revolution.

However, with unanimity on patriation of our constitution and with consensus on the amending formula, I would like to deal briefly with why I cannot support the Victoria amending formula as proposed. That is because it enshrines in stone, from now until doomsday, that two provinces, the province of Ontario and the province of Quebec, will forever have a veto. Whether or not they end up with only 10 per cent of the population in the country 150 years from now, they still will have a veto. I submit that is not fair and is not looking into the future. I do not think any particular province or region should have a veto on constitutional change.

With the unanimity on patriation and the consensus evolving around the Vancouver formula, any person with any leadership qualities should now be able to fashion an agreement on patriation and an amending formula, and bring the British North America Act back to Canada. Once it is in Canada we can then institute any other changes by means of our amending formula. Unless a leader is being unreasonable or is holding out for some special amending formula, or for some personal ideology that he wants to have incorporated into the package to be passed in Westminster, there is no doubt in my mind that an agreement for patriation and an amending formula could be fashioned—possibly within 48 hours.

That is not the case, however, and the reason is that the Prime Minister (Mr. Trudeau) and the government insist on the Victoria formula and insist on adding a great deal more to the resolution that will go to Westminster than just patriation and the amending formula.

I feel that we should be moving ahead on this in the sense that if the governing party in the House of Commons were willing to give a little and not insist that its penmanship is better than that of others, and if it really wanted to bring the country together, it could do so.

How did the parties arrive at the positions they have taken in this House? It strikes me that the government position was stated as more or less a fait accompli in the resolution distributed after the first speaker began his remarks two weeks ago. It was dictated by the Minister of Justice (Mr. Chrétien), the Minister of Energy, Mines and Resources (Mr, Lalonde) and the Prime Minister, and they will not vary from what they have dictated.

How has the Progressive Conservative Party arrived at the position it has taken? Frankly, I think it has arrived at it in a negative fashion. I think it has looked at the resolution and said there are too many wrongs in it and that therefore the resolution is defective and a new resolution which is not so defective should be substituted. I say that is a negative way of arriving at a position. Certainly after the press heard the former prime minister, the Leader of the Opposition (Mr. Clark) speak, they said he was against patriation and against an amending formula. That is not true but that is how they have perceived him and painted him—in a negative manner. The Constitution

The New Democratic Party has arrived at its position by a more positive route, but with reservations. That party has said it supports patriation and an amending formula, but has certain reservations and will only agree with the government if it includes resource ownership in provincial hands. The hon. member for Oshawa (Mr. Broadbent) then added that he would have to meet with his caucus the next Monday and if they had some other things he would reserve the right to bring those up. That has not been reported but that party reserved its support on resources and whatever other ideas the caucus offered.

When the second speaker for the New Democratic Party spoke on October 7, we found out that the party was not just making a reservation on resource ownership. The hon. member for Yorkton-Melville (Mr. Nystrom) expanded the New Democratic Party’s reservations to include section 42, the referendum amending formula; equalization; minority language education, offshore resources and native peoples. That makes six matters on which the party now has reservations.

When the hon. member for Winnipeg-Birds Hill (Mr. Blaikie) spoke yesterday, he agreed with those six reservations. I could not help but notice also that the hon. member for Prince Albert (Mr. Hovdebo) issued a press statement last weekend in which he stated his position as being closer to that of the Leader of the Opposition than to that of the leader of his own party.

It seems to me that having arrived at its position from a more positive initial response, the NDP is now four-square with the position of the Conservative party. Their reservations are abundant and many. They are not just agreeing on patriation, and on amending formula, if the Victoria formula were to be accepted, but they have many reservations in other areas.

Where do I stand myself, Mr. Speaker? As I indicated last night, I am in favour of Canadianization of the constitution. Quite frankly, I am also in favour of Canadianization of and Canadian control over our economy. I wish we were not subject to the whim and will of so many foreign powers. I am in favour of patriation and I also want an amending formula. Personally, I have no objection to the charter of rights and freedoms. I have some small quarrels or reservations with it, but in principle I have no objections to it—except that it is dividing the country unnecessarily.

Besides patriation and the amending formula, the government also wants the United Kingdom to add a lot of other amendments—to the British North America Act before it comes back to Canada. Those would be enshrined—and then a new amending formula would be imposed. It would be much more difficult to amend after that, than for the Prime Minister to get his own prerogatives entrenched while the constitution is still in the United Kingdom.

I have no disagreement with the $6 million advertising program—with the Canada geese saying, “Let’s fly our constitution back to Canada”, or that they want to have an amending formula. I do not complain of that; in fact I agree with it. But the ads do not say what else is in the resolution—the whole realm of other things involved.

[Page 3794]

I want to point out that I am not responsible to any premier; lam not responsible to any other person or any other politician, elected or otherwise. I am responsible only to the constituents of Lanark-Renfrew-Carleton who can judge what I have said and how l have represented them, at any election.

While I am dealing with patriation I should like to make a couple of suggestions, Mr. Speaker, regarding the interim amending formula which is set out in sections 33 to 40. I suggest that in section 38(1) set out on pages 10 and 11 of the resolution, instead of 80 per cent of the population and at least eight of the provinces, it be changed to “two-thirds of the provinces with 60 per cent of the population”. Otherwise, Quebec and Ontario, which both have over 20 per cent of the population, could veto any joint action by the other nine provinces in suggesting an alternative amending formula in that interim period. I recommend two-thirds of the provinces because I do not think we should enshrine seven.

I do not know that there will always be only ten provinces in Canada. The Yukon Territory might join Canada as a province one day—and I hope it will. The Northwest Territories might even join as two provinces because of the vast area involved. We would then have 13 provinces. There is even a possibility that Ontario could be divided and become two provinces. Some people in northern Ontario have agitated for that, just as some people in the Saguenay-Lac St. Jean area of Quebec have agitated for that part of Quebec to be a different province from the part encompassing Montreal and the southern part of Quebec. We could end up with l4 provinces, and seven out of 14 is only half. That is a long way from two-thirds, which I think would stand the test of time much better. I also think there should be a requirement for 60 per cent of the population, not 50 per cent, at any time in any of the various amending formulae that come up in the various sections.

Even Premier Levesque admitted that if he won 51 per cent of the vote in the referendum last year, it would not be sufficient to take Quebec out of Canada. He did not feel that percentage was sufficient because peoples’ emotions can be in?amed enough to pick up 6 per cent, 8 per cent or 10 per cent when their support would not otherwise be forthcoming.

I think that 60 per cent would be a fair reflection of a higher standard of public opinion that should be required to change a constitution than merely a simple majority, or as some people have referred to as the tyranny of the majority. On certain days under certain circumstances the government would be able to get a majority, maybe not 60 per cent, and it may be more difficult to change that.

Further in the amending formula sections, if we deal with the final amending formula, which is part 5 starting at page 12, I think that section 41(1)(b) should be changed. In that section (b), which I cannot support, as I have indicated, because it gives certain provinces a veto from now until doomsday, to:

(b) resolutions of the legislative assemblies of at least two-thirds of the provinces of Canada if tho provinces whose legislatures have approved the resolutions have a combined population of at least 60 per eent of the total population of Canada.

We should do away with the Victoria formula which the proposed resolution enshrines.

Now, I come to section 42. Personally I am not worried about a referendum in this country. But what has to be set aside is four ministers, including the Prime Minister and the Deputy Prime Minister and Minister of Finance (Mr. MacEachen) who both said two days ago that section 42 is only there as a deadlock-breaking mechanism if they cannot resolve constitutional problems by the various levels of government as per section 41. That is a categorical mistruth—since I am not permitted to say lie—because there is no provision in this resolution that says “if”.

The government can go directly to section 42 without going to section 41 to begin with, and for that reason I cannot support section 42. Should the word “if” be inserted or in the alternative, the government wanted to go to a referendum, I personally would have no objection, but I do think the provision should be that two-thirds of the provinces having 60 per cent of the population must support it.

I come now to section 44. The government tried in 1978 to amend the Senate through proposed Bill C-60 which then dealt with the constitution. The Supreme Court overruled the government and said that the bill could not be introduced. The government is now trying to smuggle through the back door of Westminster a change in the constitution which will affect the Senate, before it comes home. We Canadians will not have a right to do it by referendum or have it resolved by the various levels of government.

If the government really wanted to resolve the deadlock, as they talk of when referring to section 42, something might be phrased in section 41. If section 44 were eliminated, I think something of this nature would be of assistance. That would bring a new section 41(2) and this might say:

If a resolution is passed by the Senate or House of Commons which is designed to amend the Constitution of Canada;

(a) the other chamber of Parliament. be it either the House of Commons or the Senate must put the same resolution as passed by the first chamber, to itself, and allowing at least 20 hours for debate followed by a vote on the resolution before 180 days have elapsed for the passage of the resolution in the first chamber, any period when the Parliament is prorugued or dissolved shall not be counted in computing those 180 days.

And a (b) section to that new Section 41(2) might read:

(b) Each provincial assembly or legislature must within two years of the date on which the resolution passed the first chamber of the Parliament of Canada put the same resolution to themselves and after allowing at least 20 hours for debate thereon, vote on the resolution.

I would then suggest that Section 41(3) could perhaps be incorporated as well. It might say:

If a resolution designed to amend the Constitution of Canada is first passed by a legislative assembly of one of the provinces then that province shall under the seal of the province immediately forward the resolution as carried to the Governor General of Canada and the lieutenant-governor of the other provinces and they shall cause the resolution to be placed before Parliament and the other provincial legislative assemblies. and a) Within two years of the date the resolution was passed by the initiating province it shall be caused to be debated

[Page 3795]

in each provincial legislative assembly for at least 20 hours and then visited thereon, b) as to Parliament it will first be placed before the Senate, debated and voted thereon within two years of its being passed by the legislature of the initiating province, and, secondly, will be placed before the House of Commons and be debated there and voted thereon before two years plus 180 days have elapsed from the time the resolution was first adopted by the initiating province.

And a new Section 41(4) might read:

If the House of Commons, Senate or any of the provincial assemblies does not debate and vote on the resolutions within the time periods prescribed, then it will be deemed that that body, be it the House of Commons, Senate or provincial legislature, has passed the resolution in the affirmative.

That would break any deadlock without having to go to section 42. It would also require an action in the various legislatures across the country and in both chambers of Parliament.

Section 44, as I see it, is perhaps put there because the government is afraid the Senate might not act on something and thus stall a desired amendment brought by one of the provinces, or initiated by one of the provinces, and brought forward in the House of Commons. The mechanism that I have mentioned would prevent the Senate from stalling on something by just not acting. It says that if they do not act within the prescribed period, it will be deemed that it has been done and done in the affirmative. Therefore the only way the Senate can stop that is by acting and acting in the negative. I suggest that might be the type of amending formula which would get around some of the controversy dealing with section 42 and section 44. It would also break the deadlock.

I have dealt with the patriation and the amending formula and some of the suggestions that I had. The government could divide this resolution and forget the rest for now. We would end up by having a consensus within 48 hours, certainly within a short period of time, with the vast majority of Canadians, probably 80 per cent of them, being able to support the then resolution going to Westminster. As I say, when you have the majority support of Canadians on the side of the law, then the law will not be disrespected. If the government insists on enshrining the other things, then there are some problems.

Let me deal with the areas where the problems do arise, although personally I do not find that I “have a great deal of difficulty with them. First it is the Canadian charter of rights and freedoms. It starts out in the first section with guaranteeing certain rights subject only to the will of Parliament. Then the fundamental rights are set out. Oddly enough these are all included in Mr. Diefenbaker’s Bill of Rights which was passed in 1960, except for some which might be called the cerebral thought processes. The additions are: freedom of conscience, thought, belief and opinion. Those are all inside somebody’s head. I did not know that anybody could control what was going on inside my head. I always thought that I had those freedoms anyhow. I still think that those must be part of trying to free the cerebral process—perhaps of the Liberal backbenchers. Maybe it is something only for the Prime Minister who likes to think of himself as an intellect and therefore wanted all these things dealing with the mind put in. However, I have no problem with them if it is insisted upon that they be there, but I think it clutters things up.

The Diefenbaker Bill of Rights could have been adopted in this section. This might have deferred some of the controversy which has been stirred up.

If somebody is so egotistical as to insist on their penmanship and craftsmanship, then this country certainly is in difficulty. I have no problems with sections 3 and 4, democratic rights, nor 5, and 6, mobility rights. I happen to agree with that. My constituency has a border with the province of Quebec which not long ago passed regulations not allowing any people from my province to work in that province, yet their people come across and work in my constituency on a regular basis in the construction industry. That is pretty tough. People used to truck pulpwood to the Portage du Fort plant of Consolidated Bathurst. They had to buy a $500 licence to go half a mile on a paved highway after that regulation was brought in, after using that highway for five or six years at no cost, and all Quebec trucks use the Ontario highways at no cost. Therefore I have no difficulty with mobility rights. Frankly, I am surprised this docs not go further and include powers over the economy.

In the legal rights section, I was sort of humoured to find in that section the following:

Everyone has the right to life, liberty and security of the person—

I was sort of humoured when the Minister of Regional Economic Expansion (Mr. De Bané) quoted the French charter of human and citizens rights of I789 which states that “the purpose of any political association is the conservation of natural and imprescriptible human rights. Those rights are freedom, ownership and resistance to oppression”. They have ownership there.

I looked into the American Bill of Rights. They have certain rights, including the right to own property. I looked into the Canadian Bill of Rights, section 1(a), which states that everyone has the right to life, liberty and property. Property has been left out of this section. It appears nowhere in this charter of rights and freedoms. Does that mean the federal government is not going to enshrine that the people of Canada have the right to property, or is it because they were afraid they would be transgressing provincial jurisdiction? They did not worry about that with civil rights and it comes in the same subsection as property and civil rights. They should have placed property in there.

There is also property controlled at the federal level, intellectual and commercial property, such as patents, trademarks and copyrights. They are not enshrined. On the right to ownership or the right to possession of property, if you do not have the right to possession of property, things, your own belongings, I submit there are no freedoms. What good are the other freedoms if you are not allowed to have these personal belongings? I find that a little bit ridiculous.

Section 8 dealing with ‘search and seizure’ according to established law is a pussyfooting section. I do not think it is going to change dramatically any law in this country.

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Section 9 is the same as section 2(a) of the bill of rights except that it does not mention the word “exile”.

Section 10(a) is the same as section 2(c)(i) of the Bill of Rights.

Paragraph (b) of section 10 is the same as 2(c)(ii) and (c) is the same as 2(c)(iii) of the Diefenbaker Bill of Rights.

Section 11(a) is the same as 2(c)(i) of the Bill of Rights.

Paragraph (b) is new, stating that a person should be tried within a reasonable time. l have no difficulty with that.

Paragraph (c) is the same as 2(f) of the Bill of Rights.

Paragraph (d) is the same as 2(f) of the Diefenbaker Bill of Rights.

Paragraph (e) is new. You cannot be convicted today of anything which is not an offence today. That is just saying you cannot be convicted of anything if at the time you are alleged to have done it it was not an offence. I do not see the necessity for that.

Paragraph (f) of section 11 deals with double jeopardy. That is already covered in the Criminal Code of Canada.

Paragraph (g) deals with the lesser sentences when they changed the Parole Act. That is already covered in an amendment to the Parole Act which we dealt with two or three years ago in this country.

Section 12 is already covered by section 2(d) of the Diefenbaker Bill of Rights.

Section 13 is covered by 2(d) of the Canadian Bill of Rights and is also covered by the Canada Evidence Act and Ontario Evidence Act.

Section 14 of this resolution is covered by section 2(g) of the Diefenbaker Bill of Rights.

Section 15(1) is covered by section 1 of the Canadian Bill of Rights.

There is one aspect which some people are concerned about. That is in section 8, where a person has the right to seizure on certain grounds. Some people feel this is going to change the law. it will not make the law like the American law. ln the American law under writs, you must identify the place you are going to search, the people and what you are searching for.

That is set out in the constitution of the United States, amendment number four, “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue, but upon probable cause supported by oath or affirmation and. particularly, describing the place to be searched, the persons or the things to be seized”. They do not mention ‘things’ here in this section 8, so l do not think it would follow the same way as the American law has followed, something which I certainly would not want to have brought into Canada.

I want to point out some problems in the next sections in the few minutes I have remaining.

I have no problems with sections 16 to 19 which are already entrenched in our Official Languages Act.

I do have some specific problems with section 23. I believe it is wrong. This has not yet been raised. I quote from section 23(2):

Where a citizen of Canada changes residence from one province to another and, prior to the change, any child of that citizen has been receiving his or her primary or secondary school instruction in either English or French—

Then they have the right to continue. However, if a young married couple with pre-schoolers who speak French move to Cornwall, they will not be guaranteed the right to attend French schools. The older child would have had to start in a French school. That whole section will have to be rewritten. The people of Canada should be able to send their children to a school of the official language of their choice, period, rather than have two classes of immigrants as suggested in section 23(1) and also discriminating against pre-schoolers moving versus people whose oldest child has already commenced school, in section 23(2).

The equalization formula is wrong.

If there was good will in this place and a willingness to accept different views, the government would not have incorporated this resolution in such a way that we will never be able to amend it. Right now we are only asked to move a motion to send the “proposed resolution”, not the official resolution, to a committee which will make a report. Any amendments that they think should be made in the resolution—again we cannot amend the resolution-should be included in the report. The report will be brought back to this House for a debate on whether we agree with the report, to send the resolution to England as a joint address. There is no place I can see where this provides for amendments. A place for amendments has not been guaranteed by the government.

The government says of section 42 that it is only a deadlock-breaking procedure, but that is patently false. As they indicated yesterday in answer to the hon. member for Winnipeg North Centre (Mr. Knowles), they would not be willing to propose an amendment.

I thank you, Mr. Speaker, for the opportunity of making a few remarks on this matter.

[Translation]

Mr. André Maltais (Manicouagan): Mr. Speaker, I am very happy to speak to the proposed resolution, all the more so because from time immemorial in this country the debate has resumed every year in an attempt to straighten out the constitution that was bequeathed to us in good faith but which, from an administrative standpoint, should from time to time have been modernized and assured us, I feel, of justice and equality.

The national anthem that was passed here last July starts in French with the beautiful words: O Canada, terre de nos aieux. But the way we behave, I wonder if we really want to do much for future generations, or if we merely want to sign the death warrant of this great country which has every reason to survive.

[Page 3797]

I am happy to take part in this debate as a representative of a generation that is eager to make of this vast land of ours a country in which freedom and good faith are the very foundation of future discussions and future development.

Mr. Speaker, I have taken the time to ask the opinion of some people in my riding to ascertain whether the proposal put forth by the government reflected a heartfelt desire for change in the population and whether these people accepted the resolution proposed by the government in this fall of 1980.

People very freely and sincerely replied that it was high time someone did something in this country and that it was time that leadership asserted itself.

For much too long, passivity has been the common name for this constitutional debate. Of course, whenever people meet, be they provincial premiers or the Prime Minister of Canada, each has legitimate interests to uphold. But there is one important thing to remember—and that is that these interests must converge, in other words the whole of the country must benefit as much as possible from the efforts of each of these first ministers. And it is this aspect which has eluded those who have run the country in the past and those who, at present, oppose the decision to proceed with the patriation of the constitution.

I can say quite openly and sincerely, Mr. Speaker, that I am under no pressure from above or below to support this proposed resolution. I do so with conviction, with decisiveness, because I am certain that among all imperfect means it is still the best to achieve a breakthrough towards a new start for this country. We are at the crossroads and I sincerely believe that we cannot backtrack.

I can understand that the opposition parties and even some other well-meaning individuals are against the conditions attached to patriation, I can understand the sensitivities of other people, but I am convinced that if each and every one of us examined their motives we would all agree that the time has come to set aside partisan interests in order to find the best formula to put an end not only to 53 years of hesitation, 53 years of impatience, but to 113 years of efforts to rejuvenate this constitution and bring it home and make it Canadian.

In what frame of mind has this measure been undertaken? Are people asking themselves this question, what motivated those who have initiated this measure? This action has been undertaken in the wake of successive efforts at reaching an agreement among first ministers. It started in 1927 to be precise. Efforts were made again in 1931, 1935, 1936, 1950, 1961, 1964, 1971, 1975, 1976, 1978, 1979 and 1980. And always with the same result, just like a yo-yo that goes up and down but never stops. There has never been an agreement for the good of all. That is precisely where the mistake lies now, on the part of the official opposition and those who are against this measure, for they want to keep searching indefinitely for an ideal means while it has been amply demonstrated that this is not feasible. It is so true that in the democratic system of government the law of the majority prevails when total and absolute majority cannot be achieved. In a type of negotiation where two levels of government are involved, it is a lot to expect all these premiers to agree, all of them at the same time on the same items. This is why, following the attempts of an openly separatist and equally hypocritical party, the Canadian government has had to set in motion a process to patriate the constitution. This is a moral commitment, which was very firm, and for those who followed the various stages of the referendum campaign in Quebec, I should simply like to quote briefly from a statement made by the Right Hon. Prime Minister (Mr. Trudeau) in Quebec City on May 14, 1980. When people are speaking of moral commitment, when people are wondering about our being justified in acting this way today, reference should be made to that statement which is crystal clear, and which Quebeckers know very well. Mr. Trudeau said, and I quote: “If the answer to the referendum question is No, we have all said that this no would be interpreted as a mandate to change the constitution in order to renew our federalism.” That I did not say. Neither did Mr. Clark, nor Mr. Broadbent, nor even the nine premiers of the other provinces. The 75 hon. members who were elected in that province to go and represent them in Ottawa said No and this means we want some change.

Further, Mr. Trudeau said in conclusion, and I quote: “I know because I talked to those hon. members this morning, I know that I can commit myself most firmly that if the answer is “no”—”—and note this—

—we will immediately set in motion the mechanism to renew the constitution, and we will not stop until it is done.

It is precisely this moral commitment which has triggered the admittedly rapid procedure designed to patriate the constitution. But before we got to the present stage, throughout the summer, the Minister of Justice (Mr. Chrétien) travelled from one provincial capital to another in order to prepare yet another constitutional conference where we might reach an agreement. For three months, week after week, justice ministers of various provinces met nonstop with the Minister of Justice of Canada in an attempt to find a common ground.

Moreover, in September, another constitutional conference was held to determine the exact position of various heads of government regarding constitutional renewal. Instead of presenting the Canadian government with a counter offer, the provincial premiers chose once again to devise a formula leading to a deadlock. That is to say they chose to deal with purely provincial concerns instead of taking a comprehensive view of the situation which directly concerns all Canadians.

And this government has a broader role to play in the House of Commons, the undivided role of representing all Canadians. True, this order of government has a role equal to the one played by the provinces, but a different one, even though it is

[Page 3798]

of equal importance. And it is to represent in all fairness and equity all Canadians from coast to coast. At the constitutional conference held last September, one of the major points to remember is that the Prime Minister of Canada did not have the mandate to hand over to each provincial premier a part of our Canadian heritage. Nobody has the mandate to hand over to any region of Canada whatever belongs de facto and de jure to every Canadian citizen.

When I asked a little while ago in what spirit that reform, that unlocking action had been initiated, I did say that it had been devised out of a moral commitment. And when the Progressive Conservative Party was in power, they also had voiced such a moral commitment to get to effect those changes. At his press conference two weeks ago, the Leader of the Opposition indicated that he agreed in principle with the government’s proposal, but that he could not agree with the means being used. But should we ?ght over the means, the structures? Should we not instead seek a formula which would meet the needs of Canadians? Who will actually benefit from this constitutional breakthrough? Everybody seems eager to defend his own structure, to speak on behalf of the group he represents, but there is something all hon. members should try to understand, and it is that we represent each and every member of these organizations. The same people who are part of these organizations have also elected us. This is a basic truth which is often overlooked.

Furthermore, the government’s proposal is designed for future generations, while this debate more often than not is used to promote short-term political interests. The generation to which I belong is really getting impatient and is not interested in sacrificing its youth discussing constitutional matters for the next 53 years. This is of paramount importance.

For too long we have been sacrificed in Quebec and elsewhere in Canada in the interests of a false nationalism, always inspiring but restrictive. This plan requires from all Canadians what the philosopher Bergson called a supplement of soul. That is what we need in the House. We have the impression, not to say personal conviction, that some people are interested in discussing rather than making headway.

The people of Manicouagan are proud workers who elected me to defend the economy, to find work for their children and not to quibble for 50 years about issues which are mostly out of date. I think that if Canada is to progress we need that change of direction which will enable us to plan much further. The debate which has been going on for years is a stumbling block hindering Canada’s evolution.

Still in 1980 we are taking up weeks to discuss a matter which members of Parliament should have solved in the fifties. This was for the country a truly rotten gift which is corroding the social fabric to the extent that we now have the impression that a withdrawal would be the best formula. The members of the government team have taken up the challenge to expand Canadian views and allow Canadians to be everywhere at home.

Of course, this is a tremendous challenge and there are people who are convinced, I think, that it might be an impossible undertaking.

Yet, it has been demonstrated that Canadians want to meet that challenge, particularly in Quebec. In spite of what some people might think of his character, the Prime Minister of Canada has been elected five times in Quebec and each time with an increased majority. So, as concerns Quebec, there is no need to say that he has the absolute confidence of the people and if you want to talk about a traitor you should find another person than this Prime Minister.

If you want to learn about our Prime Minister’s vision concerning the constitution, you just need to refer to the book he wrote in 1976 entitled “Federalism and French Canadians”, on page 52. About a possible constitutional reform, he said and I quote:

There is nothing easier than proposing constitutional reforms, and I could very easily outline several points that would some day have to be taken lnt0 account by a new constitution. For example:

(a) A bill of rights Could be incorporated into the constitution, to limit the powers that legal authorities have over human rights in Canada. In addition to protecting traditional political and social rights, such a bill would specifically put the French and English languages on an equal basis before the law.

Virtually the exact wording or at least the spirit of that text is to be found in the proposed resolution.

(b) The protection of basic rights having thus been ensured, there would be no danger in reducing the central government’s predominance in certain areas (for example, by abolishing the right of reservation and disallowance); at the same time, this would have the advantage of getting rid of some of the constitution’s imperial phraseology.

And so on and so forth—

When faced with references to sell-out or about-face, to a man who does not know where he is going, it is very easy to prove that this is not so by going through the writings of that man in order to show how true it is. If one politician stood up these recent years, it is the current leader of the Liberal party. And I feel this is what the people want, somebody with a direction, somebody with a vision of this country’s future. And it is important to emphasize this because in Quebec we hear regularly the terms traitor and treason. These terms bounced around all through the referendum campaign. And, needless to repeat, both French-speaking Quebeckers and the total Quebec population voted no, they voted to remain in Canada. This is fundamental.

And the patriation and amendment provisions, as with all the aspects included in the document, confirm the supremacy of citizens over the structure of state. I cannot see why the provinces can object to what is inside, because this exercise is simply to give more rights to citizens, but without, of course, going through the provincial structures, and all premiers would prefer that this go through provincial structures. If we could

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not go through provincial structures, it is because they did not have enough vision and generosity to let the citizens have a charter of basic rights and freedoms, language rights and other aspects included in the document.

The most upset may be provincial governments. They will have to react, because their citizens will have received more rights and, faced with these new rights granted citizens, they will have to change their structures in order to allow for more freedom in the land. And references to encroachment on the federal spirit are misleading, because in this House we represent the same people.

Those people who have elected us have also elected their provincial spokesmen or premiers. We represent the same people but we have different duties, that is to ensure that rights and freedoms are protected throughout the country. If provincial premiers had endorsed the philosophy contained in this draft resolution, if they had agreed to widen their vision of a free and equitable Canada, we could have reached this kind of unanimity very easily and therefore passed this resolution in a more happy way. But we have not been able to do this because some narrow minds have forced us to act through the central government and this is unfortunate. The time had come for a man to show some leadership and assert once and for all that it was necessary to take all legitimate actions to put the proposal before the federal Parliament and bring back home something which belongs to us.

People of my generation want things to change. They really want to look toward the future and the challenge of the year 2000 is a priority to us. We no longer want to sit on the past and begin criticizing what could have been done and what should have been done. We are determined to look to the future with some people of good will and good faith and forget the fights which hopefully have separated us for some time and look at the future in a very generous way. Indeed the role of Parliament and of the state is to fulfil three essential duties: to protect the citizens’ freedom, to provide them with the highest security and give them prosperity. Those are the three very basic elements of a state, whether a central, a provincial or a municipal government. What we want is to forget the present time and project ourselves into this future, to become really one of the most generous countries as far as freedoms are concerned, a country likely to grow in harmony.

There is danger, in the present debate, if hon. members do not assume their responsibilities, of our country being divided even more because of an endless and mostly useless debate in which all parties are hurling abuse at one another. The proposal has been put before Parliament. We still have to discuss its principles for some time. Let us hope that next week we will be able to refer it to the committee. Everyone will have a chance to express his point of view and then we will be able to see to what extent it is still possible to improve this document. Again I repeat that it is not a perfect document. If anybody here has a perfect document in his pocket, let him table it. It is about time.

We must work with what is humanly possible and above all we must base our willingness for a change on good faith and on future generations instead of always aiming for a short term and taking what is now a fact as something that cannot be changed.

This proposal even contains an amending formula which is very flexible, in my opinion. It was adopted in Victoria, and for the next two years we will be absolutely unable to change anything without full endorsement from all first ministers. Quebeckers have to send a new government team to discuss renewed federalism on their behalf. The whole division of powers has yet to be studied. The premiers who really wish in all good faith to work at establishing new means to provide their provinces and Canada with strong instruments, powerful economic instruments, will have the possibility to do so during these next two years.

If the proposed resolution itself includes items with which some of the premiers disagree, they can still discuss them further among themselves and develop an amendment proposal which would retain some of the elements of the constitutional proposal, and everything will be possible. But one thing is clear, and that is that the document will be Canadian and will have belonged to us while we now have to go and beg elsewhere for things which are the pride of the country. I would remind members opposite that history might judge very severely the stand they have taken recently. We have only to recall the debate on the flag and the emotional hours we spent in this House in the longest debate ever held in our history, when members opposite were literally against the proposal for all sorts of reasons, traditions representations, honour, and if we now talk about this matter with the youngest and the oldest among us, we realize that it was a mistake to take such a stand concerning the approval of the flag. This flag is now a symbol of unity throughout the country. No one believes that any other flag could represent us.

I remind members opposite of the critical need to understand the dangers of this debate. I recognize that one might disagree with some of the means proposed, but I do not accept that the means must come second to the whole Canadian ideal we are defending. I could have spoken expressly about the language, I could have spoken about each of the rights provided in the charter. But I believe that in the last two weeks, several of my colleagues on both sides of the House have already done so and that it would serve no purpose to add anything to the comments which have been made.

However, there is perhaps one element I would like to mention, that two major points stand out when we examine the history of the old constitutional conflict. The problem of this country is not a problem of dictatorship, it is not a problem of wealth, it is not a problem of poverty, but rather a problem of

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structure and of sharing. The great advantage that Canadians have always had has been to be heirs to a country which might be too vast for certain minds. The problem of this country is that some people find it hard to understand the concepts of time and space. When we look at what is going on around us, at all the wars, the famines and the dictatorships, and when we compare this with the country we call Canada, it is very easy to see that we are like spoilt children who find it hard to be generous and to share even though their stomachs are full.

And what intensifies even more so this conflict are our personality clashes. This is what is eroding the national fiber of this country. We are incapable of appreciating this great heritage of ours and through the structures of society reach the people to whom we are answerable. This whole set up of school, municipal, provincial and federal structures is here to be of assistance to the private citizens and not the opposite.

This is what we must understand and this is what people outside these walls must understand. There is no intention of taking things and rights away from anybody. The idea is to give people more of the same. The member for Manicouagan, the Prime Minister of Canada or the Premier of Quebec or of any other province or any member of Parliament for that matter are only transitory figures but the country as a whole will remain and generations will succeed one another. What we must always have present in our mind is what we are going to leave behind for future generations and in which spirit we are going to transmit that heritage. The proposed resolution is drafted in that kind of spirit, namely the granting of cultural guarantees. I am referring to language rights but also to mobility rights and the mobility rights contained in this proposed resolution are a thing I am experiencing in my own riding.

Here is an example to illustrate how this happens. Over the past few years the economic centre of our country has been shifting westward. Contractors in my region, the type of people whom we might call the builders of our country, go to Edmonton to do business there. Quite often these people do not speak English very well. Nevertheless they are ready to take up the challenge and to follow the trends of the economy. The very principle of the resolution recognizes freedom of movement for citizens and capital from one part of the country to the other. And this is a fact. Ask any Canada employment centre how many people knock on the door to inquire about mobility plans to go west and how many westerners seek to go east. By this resolution, we enshrine this reality. Is anyone in this House opposed to such proposal? Is any province against such proposal? And yet we have heard premiers say: Listen, this is going to confuse our mobility plans. Mobility programs for citizens of our country are not designed to meet the needs of manpower plans, but to enable people to work where they want to.

Manpower plans can be adapted to the population. That is what we must confirm in this resolution. French-speaking families moving westward would then be able to get certain French-speaking institutions, if numbers warrant, and that matter would not be left for the federal or provincial governments but for the courts to decide. They would be able to rule in these matters on the basis of jurisprudence and after examining the facts.

I think there are very few cases of such generous projects in the history of Canada and what is most astonishing is the fact that those who oppose it do so simply on the basis of the methods and means used to implement it. Such an approach is risky for those who are unable to overcome their own opposition and deal strictly with the principle. That is I think the saddest aspect I see in the negative criticism made about supporting this resolution.

In closing my remarks, I would simply say that the great principle of liberalism, which I think everybody in this House would defend, puts the priority on the individual and not on the structures or on the state and I would challenge anybody in the House to find a formula within the proposed resolution that is contrary to what I have just said, Everything in that proposed resolution is addressed directly to the citizens and not the institutions, and that is what confirms the supremacy of the rights of the citizens over those of the state. That is what is important. In a world that is overmechanized, overbureaucratized, it was high time such principles were stated; it may also be high time to switch to action in order to achieve concrete objectives: that is why we are elected.

Go out in the street and ask the people what they think of this protracted debate. They will tell you, over and over again: You were elected to do that work; you are paid to solve those problems. Quit calling on us as witness and act. But act according to our freedoms and in terms of the generation to come. That is what we ask of you. Stop going over the same things time and time again and assume your responsibilities. That is the stand we must take, that is what we must act upon, instead of going around in circles and hiding behind false principles and sophistry to justify our inertia, There is only one thing to do: we must break out of the deadlock, go further and assert that we are a free country, capable of bringing back home what belongs to us, and mature enough to include in our constitution commitments that require surpassing ourselves. I ask them to be understanding. I ask them to consider from the north to the south and from the east to the west this large continent which we have inherited and to think that the discussions which are going on are perhaps the mere last effort which will enable us finally to obtain our basic rights as Canadian citizens, that the forthcoming years are merely a gleam of the future and that we will be able to gain control and to carry on the harmonious development of this country. I am convinced that if our fathers had been timid rather than confident, today our standard of living would not be so high

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and our freedoms would not be so well asserted. A nation grows old when it resists expansion. Our country perhaps has arrived at the age of puberty but I am now convinced that we are not far from adulthood and that we will be able to take up the great challenge passed onto us by former generations and anticipated by future generations of Canadians.

[English]

Mr. Les Benjamin (Regina West): Mr. Speaker, I am pleased to take part in the debate on the resolution to establish a Special Joint Committee of the Senate and the House of Commons to consider the total package the government wishes to send to Her Majesty the Queen.

Yesterday was international credit union day. I thank my colleagues in all parties for giving unanimous consent to my motion under Standing Order 43 earlier today which paid tribute to the credit union and caisse populaire movements in Canada and around the world. It is in that spirit and in accordance with the principles and philosophies of the co-operative movement, the major foundation of the political party to which I am happy to belong, I want to make my remarks on the resolution containing a joint address to Her Majesty the Queen regarding the Constitution of Canada.

Usually I am a hard-nosed partisan democratic socialist. Usually on social and economic issues I will argue, berate and condemn—and sometimes support—any of the actions, policies or ideas of my fellow Canadians who are Liberals or Conservatives whether in this chamber or anywhere else in the country. But this is not the time or the subject on which to do that. My comments apply to myself as well as to everyone in this place. Fingerpointing, personal attacks or extreme partisanship have no place in this particular debate. There must be an openness and willingness to consider positively the points of view, ideas and amendments submitted by any hon. member of this chamber or the committee, or when the committee reports back to the House.

There is a better way to conduct ourselves in this debate. We do not need a stubborn, arbitrary, unilateral manner. We do not need a mindless, thoughtless, incoherent babble from people who oppose someone or who oppose part or all of what is being submitted by the government. We certainly do not need personal attacks nor do we need the imputing of motives. In fact. we should be listening to one another and accepting the views of others in good faith. There is not a member of this House who agrees with this resolution I00 per cent; I suspect even the Prime Minister (Mr. Trudeau) could point out two or three things that are in it which he does not like. And that applies to every member in this chamber.

We do not need a gang of five going to court, nor do we need an attitude and state of mind from the government which precludes openness and favourable consideration of suggestions and amendments put forward by opposition parties or individual members from any party when the committee meets. I and others do not like the fact that the government is acting unilaterally on this matter, even though I fully understand and appreciate why they feel compelled to do so. Someone said, and I forget who it was: We were elected to make laws, not legislatures. We were elected to support or oppose governments, not establish them. We were elected to work under the rules, not make them by ourselves.

The five principles that are in the legislation have been policies of my party at various periods of time. For example, patriation has been part of our party policy since the 1930s, when the CCF spoke up for patriation of our constitution. We support the amending formula. Language rights has been party policy for many years. I am hopeful the government will, in committee, do something about what appears to me to be a double standard. But we support in principle the entrenching of language rights. We have supported for many years entrenching a charter of rights even though that in itself will not be sufficient to guarantee those rights. We have always supported the principle of equalization and here again we hope the government will accept amendments which would make that provision in the resolution even better. We hope it will specify and spell out equalization payments.

Most of all, my party insists that this resolution embody a sixth principle, namely, the matter of ownership, control and the right to manage the resources by the provinces.

Mr. Deputy Speaker: The hon. member for St. John’s East (Mr. McGrath) rises on a point of order and wishes to ask a question with the hon. member’s permission.

Mr. Benjamin: Mr. Speaker, I am trying to get this finished so I can get to the airport. I will try to keep my remarks under 40 minutes and if he would be good enough to question me then I would be happy to try to answer him.

Yesterday was the tenth anniversary of the imposition of the War Measures Act during peacetime. Ten years ago yesterday my former leader and political mentor—I hope he still is my political mentor—Tommy Douglas, told this House the NDP party did not accept the government’s heavy-handed tactics which could cause a person to be held for 90 days or more without an opportunity to prove he or she did not belong to a subversive organization. He said:

This government now has the power by order in council to do anything it wants-to intern any citizen, to deport any citizen, to arrest any person or to declare any organization subversive or illegal.

I am not convinced the present wording of the government’s proposed constitution act would prevent a repeat of this denial of rights. Section one of the proposed charter of rights says:

The Canadian charter of rights and freedoms guarantees the rights and freedoms sol out in it subject only lo such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

The words “as generally accepted” are a loose definition which could be interpreted in many ways. I hope the government will be willing to review this section when it is before the committee. I wonder why this qualification should apply to the right under section 12:

—not to be subjected to any cruel and unusual treatment or punishment.

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[English]

Yesterday was international credit union day. I thank my colleagues in all parties for giving unanimous consent to my motion under Standing Order 43 earlier today which paid tribute to the credit union and eaisse populaire movements in Canada and around the world. It is in that spirit and in accordance with the principles and philosophies of the co-operative movement, the major foundation of the political party to which I am happy to belong, I want to make my remarks on the resolution containing a joint address to Her Majesty the Queen regarding the Constitution of Canada.

There is a better way to conduct ourselves in this debate. We do not need a stubborn, arbitrary, unilateral manner. We do not need a mindless, thoughtless, incoherent babble from people who oppose someone or who oppose part or all of what is being submitted by the government. We certainly do not need personal attacks nor do we need the imputing of motives. In fact, we should be listening to one another and accepting the views of others in good faith. There is not a member of this House who agrees with this resolution 100 per cent; I suspect even the Prime Minister (Mr. Trudeau) could point out two or three things that are in it which he does not like. And that applies to every member in this chamber.

Most of all, my party insists that this resolution embody a sixth principle, namely, the matter of ownership, control and the right to manage the resources by the provinces.

Mr. Deputy Speaker: The hon. member for St. John’s East (Mr. McGrath) rises on a point of order and wishes to ask a question with the hon. member’s permission.

Yesterday was the tenth anniversary of the imposition of the War Measures Act during peacetime. Ten years ago yesterday my former leader and political mentor—I hope he still is my political mentor-Tommy Douglas, told this House the NDP party did not accept the government’s heavy-handed tactics which could cause a person to be held for 90 days or more without an opportunity to prove he or she did not belong to a subversive organization. He said:

This government now has the power by order in council to do anything it wants—to intern any citizen, to deport any citizen, to arrest any person or to declare any organization subversive or illegal.

I am not convinced the present wording of the government’s proposed constitution act would prevent a repeat of this denial of rights. Section one of the proposed charter of rights says:

The Canadian charter of rights and freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

—not to be subjected to any cruel and unusual treatment or punishment.

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Would that qualification to which I referred permit a repeat of the disgraceful treatment accorded to Japanese Canadians 40 years ago? Talk about the entrenehing of rights in a constitution does not necessarily guarantee one will receive those rights. The counter-example is that in the American constitution, with those rights entrenched, the treatment of the American-Japanese was as bad as, or worse than, that accorded the Japanese in Canada. It took the Americans as long to redress the harm done as it did Canada. I agree the Americans did redress that harm in a better way then we did, in a larger way. But it took them as long, even though those rights were entrenched. So entrenchment by itself does not guarantee one will always receive those rights.

Why should there be a qualification on the right to be told with what offence you are being charged? I hope the government as well as all other members of the committee will want to look at that and improve upon it. There are many ideas in the constitutional proposal I agree with; I have illustrated the five principles that are there and the sixth that we feel must be there. While we will support the passing of the motion to establish the committee we will take full part in the proceedings of that committee and we will have amendments and proposals to make. We want to hear from and listen favourably to the suggestions and amendments made by members of the Conservative party and the Liberal party. We want to deal with other concerns.

I cannot vote against the principle of patriating our constitution. I cannot vote against the entrenchment of language rights. I cannot vote against a charter of rights being in our constitution. I cannot vote against equalization. But surely that does not prevent me, or any hon. member in this House, or any citizen of Canada, from expressing concerns about other provisions in the resolution and asking for, and achieving some success with regard to acceptance of amendments moved by the opposition parties or by the government which make improvements or corrections affecting concerns other than the principles I enunciated and which we feel we must support.

For example, there is a need to provide for equalization payments instead of the possibility, maybe the probability, of patronage pay-offs. The constitution must always be in touch with the people of our country; it must be a reflection and not a manipulation of the people who live here.

The Indian and native people in my part of the country have special concerns. Of equal priority to constitutional reform is the need to correct the greatest land fraud in history—the unpaid debt of land entitlements. In my province the federal government generously gave the Hudson’s Bay Company 3.3 million acres of land and it swiftly gave the CPR ten million acres. It negotiated with the Indian people and they were entitled to l.5 million acres through agreements which have yet to be lived up to. My colleague, the hon. member for Nunatsiaq (Mr. Ittinuar) will speak further on this matter. Do these original peoples, whose roots in our country go back thousands of years, deserve that kind of treatment?

I want to deal with resources for a few moments. In order to understand why resources are important to me, to my party, to my province and, indeed, to all western provinces and, in effect, to all of the provinces and territories, one needs to go back in history before the discovery of oil or gas or potash. The national policy for this country, developed by Sir John A. Macdonald, goes back to the days when tariffs were used to encourage the growth of domestic industry in central Canada. An indivisible part of national policy has been the provision of transportation services to the maritimes and the west by the federal power.

Thus, this country grew by two principles: tariff protection for central Canada and efficient transportation for the west and the Atlantic. In recent years, however, the transportation system has not been adequate. As Mr. Justice Hall said in his eminent report, “Feelings exist that western Canadians are the source of someone else’s affluence and to a degree they blame the transportation system for their frustration.”

For one reason or another, the federal government has never understood this feeling. The Prime Minister (Mr. Trudeau) seems to be unable to speak about western concerns without tipping over a bale stack in the process. During the constitutional negotiations this summer, the Prime Minister asked the west to trade resource dollars for federal investment in the transportation system. In all sincerity and kindness I should like to ask the Prime Minister why the west should pay twice—once through tariffs and once again through resource dollars.

The west has been vulnerable to boom and bust cycles in the economy. I remember the “dirty thirties”—I am a child of the depression. I saw farmers who lost their homes and their farms when four-fifths of the crops went to pay off interest on debt. In the past five years the west has been moving ahead and now that we are moving, our citizens feel others are holding us back just when we have the chance to diversify our economy with resources in order to avoid the boom and bust cycle.

The issue of resources is as important to us, Mr. Speaker, as language and culture is, not only to the people of Quebec, but to the rim of Canada. To us in the west at least, resources are just as important and through bitter experience, that concern has become equal to other concerns. Two decisions of the Supreme Court are part of our bitter experience. In 1973, the government of Saskatchewan levied a tax to capture windfall profits from oil companies. There was no objection to them receiving their cost of production and a reasonable return on their investment. In the CIGOL case, the Supreme Court supported a challenge to the Saskatchewan government’s right to levy that tax. It was bad enough that we had to fight the oil industry and the oil corporations but in that instance the minister of justice of the day went to the Supreme Court on behalf of the federal government in support of the oil companies’ case. And some people wonder why there is bitterness!

In the Central Canada Potash case, the Supreme Court struck down Saskatchewan’s pro-rationing regulations which were originally introduced by a provincial Liberal government. Saskatchewan won both court cases in the lower courts but lost

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in the Supreme Court. Neither case upheld a federal law. Both struck down a provincial law concerning resources, leaving the companies unregulated and untaxed by either government.

No constitution is acceptable to the NDP unless it clarifies the situation and provides that natural resources and the right to indirect taxation belong to the provinces. It should provide, specifically, for the provinces to levy indirect taxes; for provincial concurrence with federal paramountcy for interprovincial trade and for provincial concurrence with federal paramountcy for international trade.

If the federal government accepts the principle of provincial ownership of resources and accepts this amendment to the proposed constitution, we will have the beginnings of a work- able package. This is not just meaningful to Saskatchewan, Mr. Speaker. I know the premier of Alberta has pooh-poohed this to some extent and said it did not mean much to that province. I wish he had checked with his minister of mineral resources. In the case of Alberta alone, 20 per cent of oil and gas production is freehold, that is, it is on land where someone other than the government owns the mineral rights. Most of those lands in Alberta—and here we go again, Mr. Speaker— are owned by Canadian Pacific and Hudson’s Bay Oil and Gas. Production from those freehold lands amounts to 90.5 million barrels of oil annually and 489 billion cubic feet of gas annually. If Alberta is permitted to levy indirect taxation equivalent to a 30 per cent royalty under our constitution on production from freehold lands, it would collect a net in excess of $600 million per year. How rich would you have to be before you would not seriously consider wanting the right to that $600 million per year’! By the way, that would exceed Saskatchewan’s total income from hydrocarbon production, so it is important, And not only to Saskatchewan, Mr. Speaker.

Sometimes the problem is not so much what the government wants to do as the way in which it wants to do certain things. I have read the resolution for a joint address and it raises many questions. First of all, is it wise to write the constitution in a language that few people can understand? Being an innocent prairie boy, I had a great deal of difficulty understanding some of the wording. One need only look at what I see as being the “guts” of the resolution, section Sl of the Constitution Act. What does that mean to the average citizen? Imagine putting that on a ballot for a referendum.

More important, in my view—and certainly this is not the view of my party as far as I am aware; the party has not officially expressed a view—there is an illusion that this resolution, once it is accepted here and in the United Kingdom, will somehow patriate our constitution. This resolution asks the United Kingdom parliament to pass a law called the Canada act which, in turn, automatically becomes the constitution act. No matter how one reads it, the Canada act will remain on the statute books of the United Kingdom unless and until it is repealed by the United Kingdom parliament. The United Kingdom parliament is totally sovereign over its own laws and it could repeal the Canada act or amend it. I am not saying that the United Kingdom parliament would do that, but it could.

In Canada we do not have provision for a chapter in our statutes. We would have the constitution act printed as an appendix to our statutes, as is the BNA Act, Hon. members know what can be done with an appendix; it can be taken out by a doctor, or in its other sense removed by Parliament. Merely passing this resolution is not sufficient to totally patriate our constitution, neither will unilateral action solve: this problem threatening to divide us.

Our country was not created because it was convenient geographically. In the nineteenth century there were serious divisions between us then as there are today. There were some factors then, as there are now, which provide a basis for co-operation. Co-operation 113 years ago was essential because British trade and fiscal policy removing imperial preference left us vulnerable to continental integration. Agricultural and other trade was potentially continental; we had to head off competition with the Americans. Co-operation was required from all people in Canada in those days. It still is. The Canadian Wheat Board is a good example. The first American canals and railways pressured us into building railroads. These were expensive ventures which required a strong federal government. However, it has always been the case that we also need strong provincial governments. After all, it was the provinces—New Brunswick, Nova Scotia, Upper and Lower Canada—which originally passed resolutions to create the BNA Act. There was no national Parliament as we know it now. The constitutional debate which create our country had input not just from heads of government but from the general consensus of the people.

I regret very much that following the September 8 to September 12 conference the government did not follow a policy resolution of the New Democratic Party. I want to read it into the record. We said, prior to the conference that if by the end of the first ministers’ conference there is deadlock and no prospect of success through the first ministers’ negotiating process alone, in the place of unilateral action, which could be divisive, we recommend a new round of deliberations be started almost immediately and that the conference participants include multiparty delegations selected by Parliament and each of the provincial legislatures. These delegations should be made up of equal numbers of delegates from each province and the number of delegates from Parliament would be equal to the total number of delegates from the provinces. We further said, Mr. Speaker, that in addition, the original peoples be given the right to direct representation and vote in the deliberations; that the multiparty delegations from the Territories be given the right to direct representation and vote in the deliberations; that a delegation of women’s organizations be given the right to direct representation and vote in the deliberations, and that after a series of regional meetings in the intervening period, this process of deliberation end one year from now. We stated, also, that a two-thirds majority of those individual delegates present and voting on proposals in each session should determine the recommendations by the conference and that the package of proposals produced by the

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negotiations would require ratification by seven legislatures representing all of the regions of Canada, one of which must be the province of Quebec, and by the Parliament of Canada. Having obtained such ratification, these proposals would then constitute law and would then constitute Canada’s constitution.

I guess it is too late for the government to do that now. We just wish they had listened and taken that into account and considered doing it.

I want to close my remarks with some final thoughts on the whole matter. However, allow me first to complete my remarks in terms of whether or not we are following the best method. l do not disagree with what the government wants to do; l do disagree with some of the ways in which the government proposes to do it. We are being asked to have the parliament of the United Kingdom pass an act which has the force of law in Canada. lt seems to me that one thing you do not do is allow one legislative body and government to set the rules for the structure of executive powers which are to reside somewhere else.

As a result of the Quebec referendum, the government—and I understand this—has chosen to move quickly, albeit unilaterally, in order to try to satisfy the people in Quebec, as well as all the rest of Canada, who want to have their constitution brought home. Yet the action being taken by the government has been rejected by the people in Quebec, certainly by Mr. Levesque and by Mr. Ryan. This should give the government pause and cause it to be even more favourably disposed to receive and accept amendments from members on this side of the House as well as amendments from its own side.

When any one of us from any party presents a case, a point, a suggestion or an amendment, it should be received and considered in good faith as being sincerely and honestly meant, in the most open, positive and most favourable way possible by all other members of this House and of the committee.

I close by saying that the government having made the decision it has made—and it has the right to make the decision in terms of how the government wishes to proceed-this Parliament has the opportunity to bring about an accomplishment which could be heralded, remembered and spoken about for the next 200 years. We have that opportunity, provided we all deal with this together in a spirit of co-operation. If we do not deal with this in that manner so that it will be something spoken of and remembered and recognized for the next 200 years, we will not have done our job very well. We will have let down our country and our people.

We do well to remember and think about our original peoples and all they have done over these thousands of years; we might all think about and remember les habitants and all they have done since they came to this country and pioneered in the Atlantic and Quebec regions and then in the west. Think about all those who came since then—the English-speaking peoples, the peoples of many other races and cultures, who settled this country. I invite my compatriots here to consider, too, what some others have done. Specifically, I want to tell my hon. friends in this chamber about one of the most moving experiences of my life. It occurred when I visited a cemetery in Adagem, which is in northern Belgium. There were 980 Canadians aged l9 to 30 buried there. They were from the Regina Rifles Regiment, the South Saskatchewan Regiment and the Royal 22nd Regiment, the Van Docs. There were the names of French and English Canadians alongside Polish, Ukrainian and German names. When all of us are carrying on this debate, deciding on how to conduct and address ourselves to succeeding generations, let us remember all of those and make sure that what they have done has not been for naught.

Some hon. Members: Hear, hear!

Mr. Ron Irwin (Parliamentary Secretary to Minister of Justice and Minister of State for Social Development): Mr. Speaker, that was a very moving finish to a very eloquent speech. It is indeed an honour to be here today to address what is a very important resolution not only to this House but to the country, a resolution which will ultimately patriate our consti- tution for the last time, which will entrench a charter of rights and give us an amending procedure.

It is my hope that this matter will soon go to the committee of the House and the Senate so that it can be expeditiously dealt with at the committee level and a joint address sent to England and the Queen before Christmas. It is unfortunate that a group of premiers have decided to take us to court, but not unexpected. The premiers of this country have been looked after by a successive number of federal parliaments. It is about time we started to look after the country. I am going to quote a lot of Conservatives. In 1865, Sir John A. Macdonald made a very profound observation. He said:

We have strengthened the general government. We have given the general legislature all the great subjects of legislation. We have conferred on them, not only specifically and in detail, all the powers which are incident to sovereignty. but we have expressly declared that all subjects of general interest not distinctly and exclusively conferred upon the local governments and local legislatures shall be conferred upon the general government and legislature. We have thus avoided that great source of weakness which has been the cause of the disruption of the United States.

In the ensuing 115 years, through judicial interpretation and legislative negotiation, we have gone in the complete opposite direction. It is a myth today to say that the federal government is stronger than or even as strong as the collective powers ol the provinces. Let me set out immediately the distribution of direct expenditures on goods and services between the two levels of government over the past 113 years.

In 1870 the federal government spent 52 per cent and the provincial governments, including the municipalities, 48 per cent. By 1926 we were down to 26 per cent and the provincial and municipal governments up to 74 per cent. In 1950 we moved up to 48 per cent with a provincial-municipal level of 52 per cent. In 1975 we were down to 24 per cent and the provinces with the municipalities were spending three times as much as us.

We have been too generous to the provinces and in our generosity have seriously impaired the imbalance of federal-provincial relations. No matter what party you belong to, you

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are still a member of this Parliament and want to maintain a balance. Either that or you do not understand what confederation is all about.

I might say that one of the most generous periods has been under the present Prime Minister (Mr. Trudeau) in the last l2 years.

Some hon. Members: Oh, oh!

Mr. Irwin: You laugh, but the facts say so. Check them. Instead of talking rhetoric, go to the figures, they are there.

Madam Speaker: I am sorry to interrupt the hon. member, but I am prepared to rule now on the amendment proposed by the hon. member for Nepean-Carleton (Mr. Baker). I am in the hands of hon. members. I could delay the ruling if the hon. member wants to continue his speech. However, since the amendment is an important one, I am prepared to listen to some argument from both sides. I do have some reservations about the amendment; however, I am prepared to rule now. I am in the hands of hon. members as to whether they would like me to rule now or have the hon. member continue.

Mr. Collenette: Madam Speaker, after quick consultation with my colleague, the Parliamentary Secretary to the Minister of Justice (Mr. Irwin), may I say he will be quite willing to yield the floor to you to give this judgment at this time, It is crucial that we have a ruling on the substance of the amendment proposed by the hon. member for Nepean-Carleton. We are quite in agreement with that.

Mr. Baker (Nepean-Carleton): If you make your ruling now, Madam Speaker, you will not be permitting us to argue in advance of having prepared the ruling. I wonder if the hon. gentleman would like to continue his speech. I do not want to hold up the debate. What is being suggested could be done the first thing after question period. It appears there is some doubt on the part of the Chair. I would like to be able to consider an argument with respect to it because I put the motion forward quite seriously. I hope that will be agreeable to my hon. friend.

Madam Speaker: That is acceptable to me, if that is the desire of the House. If we hear the hon. gentleman, we will have to think about what we do at four o’clock. We would again have to decide whether to continue with this matter or take it up on Monday.

Mr. Collenette: I am sorry, Madam Speaker, I misunderstood. I thought you were going to render a decision on the admissibility of the amendment proposed last evening. If you are saying you want to entertain argument, before you make your definitive decision, I suggest that we hold this over until Monday.

Madam Speaker: Is that agreeable to the House?

Some hon. Members: Agreed.

Madam Speaker: We will hold it over until Monday.

Mr. Irwin: I will continue. Sir John A. Macdonald strengthened the union. He knew the union and knew what he wanted to do. We have gone through a traumatic experience in Quebec—and we have short memories if we do not think it was. Having overcome a cultural challenge, we are now looking at an economic challenge. It makes little difference to me if this country is destroyed culturally or economically. In the end, it is the same result.

Last weekend I was in my riding of Sault Ste. Marie. Whenever possible, I discussed the constitution with various friends. Quite frankly, in Sault Ste. Marie at this time of the year it is not the main topic of discussion. We do not stand on street corners and talk for 40 minutes about the constitutional debate. However, I did try. I found, as probably most members opposite found, that the people want patriation. They want an end to 50 years of endless and often needless debate. There is a time when you have to get off the ski lift and attack the hill. I suggest that members opposite are too frightened to get off the ski lift and do something.

Some people have asked, what is the disagreement. Actually, they ask what we are doing here. I have a certain difficulty explaining to them that on most of the items we have agreement. We all want patriation, we all want some charter, we all agree on entrenchment of fundamental rights such as conscience. religion, expression and a free press. There have been no serious disagreements about democratic rights such as voting and the duration of legislatures and parliaments. There have been some questions about mobility rights, but in our hearts, as indicated by the speeches, it is obvious to all present that we want Canadians to be able to move anywhere in Canada and work at what they want without having to be born in a specific province or having to live in a specific province for a certain number of months.

Mr. Deputy Speaker: Order please. 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.

Debates, Government Documents, House of Commons Debates, Section 1 [Constitution Act, 1982], Section 50 [Constitution Act, 1982], Section 51 [Constitution Act, 1982], Section 6 [Constitution Act, 1982], Section 8 [Constitution Act, 1982], Section 92A [Constitution Act, 1867]

PrimaryDocuments.ca

Canada, House of Commons Debates, “Establishment of Special Joint Committee of the Senate and House of Commons”, 32nd Parl, 1st Sess (17 October 1980)

THE CONSTITUTION

ESTABLISHMENT OF SPECIAL JOINT COMMITTEE OF THE
SENATE AND HOUSE OF COMMONS

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Canada, House of Commons Debates, “Establishment of Special Joint Committee of the Senate and House of Commons”, 32nd Parl, 1st Sess (17 October 1980)

THE CONSTITUTION

ESTABLISHMENT OF SPECIAL JOINT COMMITTEE OF THE SENATE AND HOUSE OF COMMONS

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ESTABLISHMENT OF SPECIAL JOINT COMMITTEE OF THE
SENATE AND HOUSE OF COMMONS