Canada, House of Commons Debates, “Establishment of Special Joint Committee of the Senate and House of Commons”, 32nd Parl, 1st Sess (20 October 1980)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1980 at 3828-3842.
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COMMONS DEBATES — October 20, 1980
ESTABLISHMENT OF A SPECIAL JOINT COMMITTEE OF THE
SENATE AND THE HOUSE OF COMMONS
The House resumed from Friday, October 17, 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 House 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 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 united 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.
Madam Speaker: Last Friday, I was prepared to rule on the admissibility of the amendment proposed by the hon. member for Nepean-Carleton (Mr. Baker). Out of courtesy for hon. members and the House I had offered to entertain some arguments on both sides concerning the admissibility of that amendment. I am still prepared to rule today but as hon. members had preferred Friday to voice some arguments I am going to hear them now. In a spirit of co-operation I shall ask them to be as brief as possible and to discuss only the reason why they consider that amendment to be admissible or not.
Hon. Walter Baker (Nepean-Carleton): Madam Speaker, I am just looking at the words of the parliamentary secretary last Friday as reported at page 3805 of Hansard, and I quote as follows:
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.
I gathered that my friend had some objection that he wanted to raise with respect to the amendment. I think it might be appropriate if the House heard what those objections were, and then perhaps there might be some response.
I have not had any guidance from the Chair on what the Chair’s objections are so that I could answer them. But he obviously did. I wonder if he might give his argument in opposition and then I might deal with that. I suppose the assumption is always in favour of admitting amendments if at all possible.
Mr. D. M. Collenette (Parliamentary Secretary to President of the Privy Council): Madam Speaker, since you were in the chair on Friday at ten minutes to four o’clock, you will remember that there was a little misunderstanding. Perhaps I could explain it once again to the hon. member for Nepean-Carleton (Mr. Baker).
You entered the chamber and I thought you were going to give your decision on the admissibility of the amendment proposed by the hon. member for Nepean-Carleton. We on this side were quite prepared to waive the time of the Parliamentary Secretary to Minister of Justice and Minister of State for Social Development (Mr. Irwin) for his speech so that we could hear your decision and, perhaps, even waive private
members’ hour. The comments made by the hon. member for Nepean-Carleton were based on something you said which I did not catch, to the effect that, notwithstanding the fact that you were prepared to rule, you would also be prepared to entertain further argument.
I thought in my wisdom, since the President of the Privy Council (Mr. Pinard) was not here—and he is intimately concerned with this amendment—that perhaps we could hold it until Monday. That is the reason we are bringing it up again today, but if it is the decision of the Chair to rule right away, we have no objection.
Madam Speaker: It is not the decision of the Chair to rule right now but I am prepared to rule this afternoon. I extended the courtesy to the House to allow any hon. member wanting to give further argument on the acceptability of this amendment and I am prepared to hear that; if not, I am prepared to rule. After hearing arguments, I will see whether they substantially modify what I intend to rule this afternoon. I thought that some hon. members might have argument. I understand this is a normal courtesy that is usually extended to the House, and it is for this purpose that I am doing it.
Mr. Baker (Nepean-Carleton): I appreciate your thoughtfulness, Madam Speaker. The reason I rose just a few moments ago is that we are now faced with a judgment that has not been argued and we are facing an argument not knowing, in the general area, what the objections of the Chair might be. I assume it is the duty of the government House leader and, or, his colleague, to indicate if the government has some objections and if they can help the Chair, then they should deal with those objections. Surely the onus does not lie with the proponent, in the absence of any indication of what the illegality might be, to advance argument to sustain it.
I thought that the interpretation of the rules should be that these motions ought to be sustainable, and ought to be sustained unless there is a reason that they should not be. That is the reason I look to my friends to advance some arguments as to why they ought not to be.
Madam Speaker: May I explain what is going on in my mind. I hope we both understand the same thing.
It seems to me that it often happens when an amendment is proposed that members make points of order on the amendment. When the amendment was proposed, one of my deputies was in the chair and he took it immediately under advisement. I understand no points of order were raised as to the acceptability of the amendment. This sometimes occurs and, of course, sometimes it does not.
If there are no members who want to rise for this particular reason, that is fine, and I shall proceed. I shall give a chance to hon. members if they want to rise, however.
Mr. Baker (Nepean-Carleton): Madam Speaker, it is interesting that the government now decides it is going to sit silent. If I may say so, I think that is a lack of courtesy, as the President of the Privy Council (Mr. Pinard) has just indicated, for what ought to be the appropriate procedure.
If I am put in the position that I must offend in the face of a possibility of a ruling by Your Honour without Your Honour indicating, in a general way, what the objections are, or being prepared to rule in the event that no one speaks up, then I think the process is an unusual one, if I may say so. It is the reverse of what I think ought to be the appropriate procedure, that the House hear objections from the other side, if there are any. Otherwise, I think it would not be abnormal for me to ask the Chair what the objections are in a general way—not a judgment, but if there are some objections to it, tell me the area in which I have to argue. That is all I am asking, Madam Speaker. Normally that is the responsibility of the government House leader or his assistant, if he does not feel capable of arguing the question himself. It would normally be his job, I think, to help the Chair. However, it would be helpful if I had some general idea of the area in which I should argue.
Mr. Collenette: Madam Speaker, on Friday I was trying to be helpful to the Chair and all hon. members of the House because I said that we on this side would stand down and allow you to present your decision, but it was the hon. member for Nepean-Carleton (Mr. Baker) who said he was not going to hold up the debate. He said, and I quote:
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.
It was to accommodate the hon. member that I then suggested we wait until today so that he could formulate arguments in favour of his own motion, since that seemed to be what he was proposing on Friday. That is at page 3805 of Hansard.
Mr. Baker (Nepean-Carleton): Madam Speaker, I do not want to prolong this, but what I think we have is a grinning Parliamentary Secretary to the President of the Privy Council (Mr. Collenette) who is suggesting that I have not propounded reasons for my motion, and if he will re-read the speech which preceded the granting of the motion, he will see exactly the reasons that the motion is there. If that motion is invalid, and the parliamentary secretary thinks so, then I believe it is a duty of the parliamentary secretary, or the President of the Privy Council or of someone to stand up and state the reasons generally so that I can meet those objections, if that is possible.
Hon. Yvon Pinard (President of the Privy Council): Madam Speaker, last Friday, around four o’clock, you very simply stated that you were ready to give a ruling on the amendment put by the hon. member for Nepean-Carleton (Mr. Baker). In your preamble, you suggested that you had some reservations about the amendment and we on this side were quite prepared to hear your decision. The hon. member for Nepean-Carleton, seeing the weakness of his case and
seeing his chances of success progressively diminishing, sought leave to delay the debate in order to put forth more arguments.
Madam Speaker: Order, please. Those explanations have already been given, I think. That is quite clear. We have Hansard here. I think we are all quite aware of what went on last Friday. As I said. I did that out of courtesy for the House. I think that is quite natural, normal and customary. If nobody wants the floor, it is then clearly my duty to hand down a decision, and for the benefit of the hon. member for Nepean- Carleton (Mr. Baker)—
Of course I cannot review the general areas in which I intend to rule in favour or against this amendment. I was just extending a normal courtesy, but if there are no speakers, of course I shall be able to rule.
Mr. Pinard: Madam Speaker, it is quite obvious to us that the argument is unfounded and we would not want to be considered as accomplices of those who are trying to delay the constitutional debate.
Mr. Baker (Nepean-Carleton): Madam Speaker, now we understand the erudite and learned argument of the government House leader against the motion that is put. I know he worked all weekend preparing such a learned argument, and he is to be congratulated because he has advanced the cause of the House of Commons to a great degree.
An hon. Member: Oh, oh!
Mr. Baker (Nepean-Carleton): I hope the hon. member for Lincoln (Mr. Mackasey) will join in it, but I just want the Chair to know—and I say this with respect—that it is very helpful to members who advance motions in good faith to find out from the Chair, but also perhaps from the other side, why there might be some objection. It is very helpful in understanding.
However, if Your Honour wants a citation with respect to why I believe there is room within the rules for this kind of amendment, let me start off by telling Your Honour what this amendment says, and what the amendment that was advanced said. What the amendment was for was to provide an opportunity to the House of Commons to deal, appropriately and in accordance with established principles, with an address to Her Majesty the Queen, if that is to be the end of the debate.
If Your Honour reads carefully what the government has proposed in the literature which is now in general circulation in Canada, you will see what the government’s proposal is going to be. If the committee recommends adoption of resolutions in the form of the proposed resolution, with or without changes, and both the House of Commons and the Senate concur in that recommendation, those concurrences will constitute a request or a joint address.
The point of the argument I made in my speech is that by no stretch of the imagination, even the imagination of the Prime Minister (Mr. Trudeau), can what is not a joint address constitute a joint address. As I also made clear in my speech at that time, that affects you in your responsibilities in terms of the Chair. It may very well affect His Excellency the Governor General in terms of his responsibility.
It is an important point, and what that amendment is trying to do is to give the House of Commons, not extended powers, because I am sure that would be the argument against it, and at committee not to give the committee extended powers, but to complete the powers that are necessary for the committee legally and lawfully to carry out what the government eventually wants done, i.e., an amendment and an address to Her Majesty the Queen. At this point in time that is impossible.
Why is it in order? I will quote from the chapter in Beauchesne on privileges of the House, citation 21 at page 13, as follows:
It follows, therefore—
I will read the whole section.
The most fundamental privilege of the House as a whole is to establish rules of procedure for itself and to enforce them. A few rules are laid down in the British North America Act, but the vast majority are resolutions of the House which may be added to, amended, or repealed at the discretion of the House. It follows, therefore, that the House may dispense with the application of any of these rules by unanimous consent on any occasion, or, by motion may suspend their operation for a specified length of time.
It is within the ambit of that citation that this amendment is brought. My respectful submission is that it not only is important, in carrying out what is the responsibility of the House, Madam Speaker, to complete what is a joint address which is what the government wants; it is within the realm of citation 21, and certainly if the argument against it is that we are seeking greater powers than are contained in the motion standing in the name of the Minister of Justice (Mr. Chrétien), I ask you, Madam Speaker, to take a look at the proposals laid out by the government in its publication.
The government is seeking greater powers and the consent of this House to have greater powers than those to which it is entitled by law, and I think it falls within the ambit of this House, in the words of that citation, “by motion may suspend their operation,” to suspend the operations of its own rules for a specified period of time, and that is precisely the purpose of this matter, to carry out the intent and purpose of citation 21.
Aside from the practical side of it, it is a very important matter for this House of Commons to consider. I laid out, I thought, for the assistance not only of the members of the House but of a particular member of the House, namely you, Madam Speaker, the pitfalls in the practice that is being adopted by the government in this matter. That is something we are going to have to consider, and it is for that reason that I think the House owes a duty to itself to agree to this amendment. If it does not, that is fine; the House then has neglected its duty to itself. Regardless of that, the question is as to its propriety and, in my judgment and in my respectful submission, it falls within the ambit of our rules of practice.
Mr. Pinard: Madam Speaker, I listened very carefully to the remarks of my hon. colleague. He referred directly to the text of the motion under consideration and I submit that the amendment he proposed is inadmissible for several reasons. The most obvious is that if one reads carefully the amendment of the hon. member for Nepean-Carleton (Mr. Baker), one realizes that it is an absolute negation of the main motion. The main motion proposes that a special joint committee of the House and the Senate consider the proposed resolution. The hon. member, in his amendment, proposes the opposite, that is that the committee not consider the proposed resolution but rather that it be directed to study a resolution, something which has nothing to do with reality. Moreover, he wants the committee to report that the House would not be able to consider the report but would have to consider the resolution itself. Therefore, I think that right from the start, the amendment is contrary to all parliamentary practices and that it is an absolute negation of the main motion. He is asking a committee to do something it is not empowered to do. All a committee of the House can do, whether it be permanent or special, is to bring in a report.
In our motion, we ask the committee to report on whether or not the text of the resolution should be accepted. The request of the hon. member for Nepean-Carelton is a denial of that. In addition, he presupposes the decision of the committee because, theoretically, in principle, in its report the committee could very well recommend to the House that it reject the text of the proposed resolution submitted to it.
If that were the case then, theoretically, the amendment he proposes would prevent the committee from reaching that conclusion because we are duty-bound to study the resolution itself. If the committee comes to the conclusion that it does not want us to accept its report recommending that the proposed resolution be accepted, if we want the committee to be free to reach that conclusion, then we cannot endorse the amendment of the hon. member for Nepean-Carleton which, in advance, even now, before the committee looks into the matter, before it brings in its report, requires of it that it advise us that the House of Commons is not studying its report but a resolution. Again, that is another argument against the amendment proposed by the hon. member for Nepean-Carleton. It is out of order, contrary to parliamentary practice and common sense.
Madam Speaker, since the hon. member for Nepean-Carleton has finally, and with great difficulty, attempted to justify his amendment, it becomes obvious that on the other hand we, members of the government party, cannot, under our standing orders, find his amendment in order. However may I point out to you what, in reality, the motion as it now reads will lead to—and here I am not speaking of the amendment but of the main motion. It will achieve the same result as that sought by an amendment that is illegal, contrary to our rules and therefore out of order? Because the committee will be able to study, clause by clause, the proposed resolution referred to it. If we look closely at the amendment of the hon. Progressive Conservative member, it says, and I quote:
That the committee shall be deemed to have the resolution directly before it for the purpose of discussion and amendment,—
Madam Speaker, there is absolutely nothing in our motion which prevents the committee from considering the joint resolution “for the purpose of discussion and amendment”. On the contrary, it is the mandate of the committee to discuss the project and amend it if necessary by December 9. Therefore, the first part of the amendment of the hon. member from the Progressive Conservative Party is already covered by the main motion. His proposal is useless because it is already written.
As to the second part he mentions:
—and that the committee shall report the resolution as amended in a form which will permit both Houses to directly consider and amend the said resolution.
But as far as the form is concerned, I shall not repeat what I said; it is unacceptable for the reasons I mentioned. But in the facts, Madam Speaker, the hon. member for Nepean-Carleton who is so knowledgeable about the Standing Orders of the House—
Mr. Andre: That is trickery—there is no agreement on the second part.
Mr. Pinard:—in spite of his cries, the hon. member for Calgary Centre (Mr. Andre) knows very well that once the report of the committee is completed, what the House will be studying is the committee report as to whether the proposed resolution should be adopted or rejected. If one is to assume that the committee report will recommend the adoption of the proposed resolution for a joint address, what the House can do then is to ask, and there are no restrictions to that, as long as it wishes, that the report be referred to the committee for amendment in such and such a way. So in a quite indirect manner, the House will be able to debate amendments to the resolution even if it is a committee report that is being considered. I would therefore like it to be quite clear and I challenge my learned colleague to prove me wrong with valid references in support of his opinion. Once a motion for passing it is before the House a committee report can be returned to a
committee so that it can amend it in a given manner. I therefore think that I am not just demonstrating tricks of parliamentary procedure. It is rather obvious and I am quite sure the hon. member was aware of that.
So what he is looking for in the second part of his amendment which in itself is out of order, is still something he can obtain by the means he was aware of and that I have just brought to his attention. In this approach, therefore, there is absolutely no trickery, Madam Speaker. In fact the House is dealing with a motion calling for a resolution to be referred to a committee. Then the committee would be entitled to discuss and amend it. Finally the House would hold a debate after December 9 to look into the committee report. It is too early at this stage to anticipate what the committee’s findings will be, but if they were to the effect that the text of the proposed resolution should be accepted, then the opposition could ask as often as it pleased for the report to be sent back to the committee to be amended in such and such a way, and we would end up with exactly the same result as the one sought through the proposed amendment.
For the reasons I have just indicated, Madam Speaker, I finally suggest that the amendment is out of order as to its form. Substantially, it brings nothing new and provides hon. members of the opposition with no entitlement other than those which already exist under the main motion.
Madam Speaker: The hon. member for Nepean-Carleton (Mr. Baker) proposed an amendment to the motion on Thursday evening which the Chair took under advisement. For the benefit of hon. members I shall read the amendment to the House.
“That the motion be amended by adding thereto after the fifth paragraph the following:
“That the committee shall be deemed to have the resolution directly before it for the purpose of discussion and amendment, and that the committee shall report the resolution as amended in a form which will permit both Houses to directly consider and amend the said resolution.””
The motion of the Minister of Justice and Minister of State for Social Development stated inter alia that a committee be appointed to consider and report upon a certain document and “to recommend in their report whether or not such an address with such amendments as the committee considers necessary” should be presented to Her Majesty.
Those powers are in no way different from the powers sought in the amendment by the words “that the committee should be deemed to have the resolution directly before it for the purpose of discussion and amendment” and if that assumption is correct then the Chair’s view would be that that part of the proposed amendment was redundant and not needed. The proposed amendment then goes on to say “that the committee shall report the resolution as amended in a form which will permit both Houses to directly consider and amend the said resolution.”
The Chair has some misgiving about this part of the amendment. First, it appears to be a general instruction to the committee to amend the proposed resolution contained in the document to be referred to it, and second, and most important, it appears to be a substantive proposal to change in this instance our normal rules and practices relating to the procedures of referral of matters to committee and consideration of reports therefrom. As such, it is a substantive proposal beyond the scope of the motion and cannot be received by the Chair.
Mr. Baker (Nepean-Carleton): Madam Speaker, naturally I accept the ruling, but it may be appropriate to ask a question now or at some other point in time by way of a point of order or perhaps even on House business, if I can ask a question on Monday with respect to House business. The ruling was clearly that this is a substantive proposal beyond the scope of the motion which is precisely the point I made. It offers the final stage of what is the normal practice respecting joint addresses to Her Majesty the Queen, with the right of members of Parliament to move amendments and debate the resolution itself in full Parliament.
In view of the statement of the government House leader that we would arrive at the same result, as if the amendment in fact was adopted, I wonder if the government would be prepared to put a motion, hopefully to be accepted on unanimous consent, that the substance of the motion become part of the order of procedure of this House with respect to the committee and the work of the House after the committee has reported. If they would do that, I would so move it when it is appropriate, in the hope that we could settle this very important question as to how we are to address Her Majesty the Queen, because we must do so with respect to the amendments the government seeks to the Constitution of Canada.
Mr. Pinard: Madam Speaker, I want it to be very clear that a committee report recommending the adoption of the resolution submitted to it and having the effect of endorsing such report has exactly the same effect as a direct resolution which would be debated on the floor of the House. This being said, I suggest it is premature, before the committee report is known, to negotiate on the shape the debate could take at the third stage, that is once the stage of the study in committee will be over.
So as regards the substance of the hon. member’s question, even though I do not agree with him as to the preamble, once again, I want this to be very clear. I want to say that we consider the debate on the committee report to be essentially the same thing as the debate on the resolution itself, and that, likewise, it is the substance that should be debated. Having said this, and I reckon we differ in opinion on this point, if my colleague would prefer the debate to be on a resolution rather than on a committee report, we have to wait to know the substance of the committee report before we are able to negotiate in an intelligent way.
I would therefore suggest to him that he wait for the committee’s report. Once the report is drawn up and available, we will be open to discussion to determine both the form—and I emphasize this—and the duration of the debate at the third stage.
In the meantime his request is premature, but I do not close the door entirely. I appreciate his intelligent discussion of the matter. I was expecting his question and I believe he also expected my answer. Right now we are at a very preliminary stage; this is merely a motion of procedure to refer this to a committee. There is no reason why this should be delayed any longer.
Once the committee has amended, if it so decides, or discussed in depth the proposal, until December 9, and depending upon the nature of its report, I will be pleased to discuss with my hon. colleague both the form of what we will be called upon to discuss at the third stage and the duration of that debate. At that time we may come to agreement. For the time being this is premature.
May I take this opportunity, since my colleague raises a point of order on the business of the House, to offer right now and ask for unanimous consent to recover the time lost on countless occasions since the beginning of this debate for reasons of form, by sitting this evening from six to eight without interruption, and from ten to twelve this evening, in order not to conclude the debate this evening but to hear a greater number of members if such is the wish of Conservative members.
We would give consent to the House sitting without interruption on the motion from now until twelve.
Mr. Baker (Nepean-Carleton): Madam Speaker, I appreciate the offer. To date I have found the debate to be a most interesting one. If one checks the record, as I am sure Madam Speaker has, one will find the Liberal party has found it much more interesting than we have, in that it has put up more speakers during the course of this debate than we have, by actual count. I appreciate their interventions in the debate because indeed it is a fundamental one. It is such a fundamental one that, in my judgment, there is no need to change the rules of the House of Commons. But if at some point a motion is brought—and the hon. member knows the sections of the rules about which I am talking—and that motion is carried, naturally the House would go ahead.
I appreciate the words of the hon. the member, that this matter is still open, because it is very important. But I say to him that what we are talking about is the terms of reference of the parliamentary committee which will be considering the proposals of the government. So, in that sense it is not premature at all. In fact I think it is necessary. I say with respect it is absolutely necessary the committee know the extent of its responsibilities and will not be involved in a process that can possibly deny to Parliament, at the whim of the government, the benefit and right to have before it an address to Her Majesty the Queen in the normal manner, with the power of any member on any side of the House of Commons, because it is everyone’s country, to move appropriate amendments. That is the purpose of wanting to do it now. My friend has said the door is open. I think it is a very important door which he has left ajar, and I thank him.
Mr. Pinard: Madam Speaker, obviously the door will be open after the committee report. My hon. colleague seems to be asking that we open the door before it goes to committee. The motion is there, the ruling has been made; that is clear. Essentially I told him—and I will not repeat it because it is on the record—that the door was open for negotiations as to the form of the debate at third stage as well as to the length of the debate at third stage. I said that in French; perhaps he misunderstood me.
Mr. Baker (Nepean-Carleton): I heard it. My French is improving.
Mr. Pinard: Since I do not have the consent of the Tory party to debate from six to eight and from ten to twelve o’clock tonight, I will be more generous and promise not to put up any Liberal speakers between six and eight o’clock and between ten and twelve o’clock, so that more Tory speakers may use the time.
Some hon. Members: Hear, hear!
Mr. Ron Irwin (Parliamentary Secretary to Minister of Justice and Minister of State for Social Development): Mr. Speaker, I am pleased we are finally getting back to what I think is very important—the constitution—not points of privilege, points of debate, but points of substance.
When I finished speaking on Friday I think I had fairly shown that although Sir John A. Macdonald had wanted a strong federal government and had framed the British North America Act in such terms, over the years, through legislation and federal-provincial negotiations, we had weakened that concept. I think I had shown fairly, with the use of figures, that today the federal government spends approximately 24 per cent of the revenue collected in this country while the combined spending of the provinces and the municipalities is now 76 per cent. I was in the process of explaining—and I thought we agreed on more things than we disagreed—everyone says they want patriation.
We all stand for some form of entrenchment of certain fundamental rights. We all want democratic rights, with few exceptions, specifically in Newfoundland. We think that mobility is good for this country, that a person should be able to move from one province to another, find a job and take up employment as a Canadian, not just because he happened to be born in that particular province or lived there for a certain number of months.
We all agree on the life, liberty, and security of persons section, and on the unlawful search, detention and imprisonment, arrest, charge and trial procedures. Indeed, there have been suggestions we don’t go far enough. Now there have been some suggestions about tuning up the non-discrimination sections in the proposed constitution. But, generally, everyone in this House supports the entrenchment of a clause defending non-discrimination by reason of race, national or ethnic origin, religion, age or sex.
Not only in this debate but during the referendum, and I sat here and listened to it, most speakers in this House supported the entrenchment of minority language rights throughout Canada. Now there has been some suggestion that perhaps the will is no longer here. I hope not, and I think not.
I am asked by the curious, back in my riding—as I explained on Friday we don’t stand around Sault Ste. Marie in the cold fall and discuss the constitution for 40 minutes—what is the problem? I try to state it as fairly as possible. I say we agree on most things, that if there is disagreement with the New Democratic Party it is because they want the power over natural resources to be given to the provinces. I say the official opposition does not like the idea of a national referendum if the provinces and federal government cannot agree on constitutional amendment in future, especially the right of the federal government to call a referendum of its own volition.
I have come to know and respect many of the members opposite since this Parliament has been in session. I say with sincerity I hope history does not ultimately label your parties as obstructionists. But I think that will be the verdict. John Diefenbaker came so close, and failed. He said:
If only we had pressed on instead of delaying to permit the further consideration of one or two minor matters.
That will not happen again. I saw it happen here today, Friday, and Thursday, because of the opposition, who prefer to debate points of privilege and points of order when we are here debating the constitution of this country, which will be in effect for the next hundred years.
Some hon. Members: Hear, hear!
Mr. Irwin: We have failed 100 many times in the past. On balance, between unanimity and the good of the country, there is really no choice as far as we are concerned. Every member of this party, from the Ottawa Valley to the Manitoba border, which happens to be all Liberal, will be supporting this constitution when it comes back, not apologetically but with pride, because we know it is necessary. In the north we are not saying “Now is the time”.
Let us look at the limes we came very close, and let us start with John Diefenbaker. I have a great deal of respect for John Diefenbaker. As a matter of fact when I cast my first vote it was for John Diefenbaker, when I was living in Toronto.
For two things he was never criticized, his courage and his passion for this country. He wore that passion on his sleeve. John Diefenbaker fought for a Bill of Rights and, when it passed, how many Canadians thought at that time that that beautiful piece of legislation would be interpreted by the courts into insignificance? That is exactly what happened.
How did he feel about entrenchment? This is what he said:
A bill of rights for Canada is the only way in which to stop the march on the part of the government toward arbitrary power, and to curb the arrogance of men “clad in a little brief authority”.
He went on to say:
—some say that it is unnecessary and our unwritten constitutional rights protect us (a familiar refrain).
They have not in the past.
They cannot unless you and I have a right to the protection of law in the courts of the land.
How wise he was. We often forget that as well as being a legislator he was noted as a civil liberties lawyer. His years before the bar and his years as a legislator brought him to the conclusion that we needed a binding bill of rights.
Mr. Blenkarn: Why don’t we have a John Diefenbaker?
Mr. Irwin: It was more refreshing when we did have John Diefenbaker.
What about the provinces and the provincial governments? He said with regard to the provincial governments:
My experience with the provincial governments indicated that they were too jealous of their jurisdiction over property and civil rights to support any amendment applicable to themselves. I have little hope that their attitude will be altered in the years ahead.
He was right, their attitude has not changed.
What did he say about the different types of citizenship, which they are basically espousing in the provinces? He knew there could only be one type of citizenship. He knew that without that basic tenet there could be no Canada. He said:
There are others who claim that the Parliament of Canada cannot pass laws to preserve the constitutional freedom of Canadians.
If that be true, then Canadian citizenship is a provincial variable.
There will be nine kinds of Canadians in Canada whose freedoms will be based on the home address of each of us.
If that contention be true, Canadian unity is a meaningless term—
John Diefenbaker came so close. Do you remember in 1961 when he and the Hon. E. D. Fulton had reached a consensus with the provincial attorneys general, after about 15 months of work? It was at that time that we almost had what we are trying to get today. But the government tarried, they waited and did not act—the chance was gone. He failed. Let us learn from that experience. Let us stop nitpicking and get on with the job, unless you really do not want it to happen, unless you want the failure of 20 years ago. Diefenbaker’s experience was invaluable and we should learn from it.
Let us look at our side. The Right Hon. Louis St. Laurent tried, and he failed. How did he feel about our responsibilities? He said:
National unity demands that all those who form part of the Canadian Parliament feel that their responsibility is to the Canadian people as a whole. and that they are not the representatives of any provincial government or any municipality or other local authority.
Over the last few days I have heard many charges hurled at the opposition. It is alleged that they are front men of the provinces, that they are spokesmen for the provinces, and conduits for the provinces. My instinct tells me this is not true. But I will be quite frank with you—you are more preoccupied with provincial rights than you are with the country as a whole. Perhaps it may be because of the uneven balance which occurred in the last election and the way we have broken up the country politically. I don’t know the reason, but quite frankly, what my ears tell me in this debate is that the oppositions are sounding very parochial and very provincial. I do not think this is healthy for the country.
St. Laurent had problems with the provinces when he abolished appeals to the Privy Council, which was done without provincial consent for the simple reason he could not get it from Duplessis. If Mr. St. Laurent had waited for provincial consent, our government of last resort would still be in London. It would be something, for the premiers of the provinces could say in that case, “I am not going to the Supreme Court of Canada, I am going to the Privy Council or I am going to London to have the case adjudicated”. This is exactly what would have happened if the government had waited for unanimity.
Thirty-one years ago, in 1949, Mr. St. Laurent told an audience of young people:
We will be in full possession both theoretically and in practice of our autonomy. We will be masters in our own home—
He was referring to the time when we would abolish appeals to the Privy Council and gain the right to amend the Canadian constitution at home. Those young people in that audience are now in their late forties and early fifties, and they are sick of waiting. How many more decades must they wait? The time is now. I do not know about the opposition, but the government of this country and the people of Canada want and deserve to be masters of their own home.
I would like to deal now specifically with the speech made by the Leader of the Opposition (Mr. Clark) to the House on October 6. I listened to that speech, because it was an important speech. The Leader of the Opposition represents a great segment of Canada. In certain ways, he made an amazing speech. There seemed to be an obsession with section 42 which deals with the referendum. The Leader of the Opposition seemed to have little or no faith in the ability of the people of this country to make an intelligent decision in a referendum. He would prefer to leave these basic rights and their amendments to the politicians.
I would remind the Leader of the Opposition, and it is unfortunate that he is not here, that if it had not been for the people’s referendum in Quebec, if we had left the matter to the great legislator Lévesque, we would not even be debating this constitution today; we would be discussing sovereignty association. It was not the politicians of Quebec who were in power who saved us from separation, it was the people of Quebec. I believe that the Opposition Leader underestimates the intelligence of the ever average Canadian and overestimates the intelligence of the average politician.
Politicians get stampeded as easily as the public, probably more so. For instance, in Australia where there is a referendum process, over the last 64 years out of 24 amendments proposed, only four passed. Presumably they were proposed by the political institutions and rejected by the people. Yet, the Leader of the Opposition feels that section 42 is “the greatest menace to rights”. It is odd that he should feel that the public is the greatest menace to rights.
The Leader of the Opposition touches or, rather, meanders through section 44; and also section 51, which deals with colonial status, without saying too much of substance and at page 3295 of Hansard he is reported as saying:
This is our position: To bring back the constitution with an agreed formula and nothing else.
What the Leader of the Opposition is really proposing is really nothing more than an empty gesture. As a basis for meaningful discussion, I find this quite discouraging. This nation needs better direction than that.
I use the word “direction” because this constitution is more a direction than it is a destination. For the Acadians, that direction is a better way of preserving their culture and way of life through minority education rights. For the people of Saskatchewan, it is a direction that was started decades ago when they were the first province to bring in a bill of rights and to propound a series of schemes with one basic foundation which was, essentially, common sharing for the common good.
For the Quebecker, the direction is a Canada in which he will strive to protect English minorities inside Quebec, and the rest of the country will strive to protect French-speaking minorities outside Quebec, and that is the way it should be. For Alberta, the direction will serve as a reminder that we in Ontario have paid out millions in equalization grants to other provinces and have not once, even though it is owing to us under the formula, asked for such a grant ourselves. It is also a reminder to Alberta from the people of northern Ontario that for years we paid 25 per cent over the world price for petroleum because it was a good idea to develop the petroleum industry in Alberta. We did not begrudge paying this price because we thought that it was a good idea and for the common good of all Canadians. When someone drew an imaginary fine at Ottawa and said, “Everything west of that fine belongs to Alberta”, we said, “Fine, that’s the way it should be”.
For the Franco-Ontarians, that direction is away from the divisive debate which we recently saw in Penetanguishene, and in the future, when numbers warrant, there will be the right to minority language education. It will not be left to the whim of the local board of education. I am sure that the direction is right and the correct one to take. It is a direction toward the people. There should always be a direction toward the people.
Too often we feel that the power is here, and we forget that we are just the holders of power for the time being. This is something which Premier Peckford should remember. He feels that the provinces created the federal government and the federal system. I suggest to him that it is more accurate to say that the people created the federal system and these same people should be asked to amend the constitution in a referendum from time to time when it becomes necessary.
I sat in the House through most of the debate. I came to this sitting full of enthusiasm and hope. At the beginning I really thought that all of us together would create a historical moment, that we as one would mould a constitution and set aside political differences to give to the people not only something that they vitally need but something that they vitally deserve. I felt that there would be some differences and some suggestions, but in the end that we would come together as one, as ten fingers come together to strengthen two hands, as one voice speaking to England.
I felt that we had learned through the mistakes of the past. I was wrong; we have learned nothing. But this time there will be the political will to go the distance. This time there will be no retreat, and Canada will get a constitution. Henry David Thoreau once said:
If a man does not keep pace with his companions, perhaps it is because he hears a different drummer.
It would appear that the sound which we are hearing is not the same sound which members opposite are hearing.
Mr. Dinsdale: That’s right.
Mr. Irwin: That is certainly right. It appears that that sound periodically says that there are certain rights which should be enshrined in the constitution and members opposite are not hearing it. It is the sound which says, “If we are a country, then we must protect minority rights”. It is a sound that says, “How long must we suffer the indignation of going, cap in hand, to England to do something which we should be doing in our own country?”. It is a sound which says—
An hon. Member: Oh, oh!
Mr. Irwin: I listened to you, and now you are going to listen to me.
It is a sound which says, “Any Canadian, no matter where he is born, has the right to work anywhere in Canada.” It is a sound that says, “This country should no longer tolerate padlock laws, like in Quebec, and laws which discriminate against regions.” It is a sound which says, and this point was raised earlier, “This country does not tolerate union busting under the name of security.” It is a sound which says that this time there will be a codified law against discrimination because of race, national or ethnic origin, colour, region, age or sex.
This time the aspirations of a nation will not be thwarted by those who use fear as a means of confusion, or those who use points of privilege as points of debate instead of points of substance. If members opposite cannot hear that drummer’s beat, then they ought to move aside because this time this legislation will not end up in a bucket of dust, and this time, when the numbers are counted, we will be there.
Some hon. Members: Hear, hear!
Mr. Tom McMillan (Hillsborough): Mr. Speaker, many members have referred to this debate as historic. For my province, Prince Edward Island, the debate is indeed historic, because we are considering a proposal that would end P.E.I.’s provincial status as far as having any future say in constitutional matters is concerned. Isn’t it ironic, Mr. Speaker, that the very province which served as the birthplace of confederation, in September, 1864, will, 116 years later, receive the hardest blow from the most far-reaching changes in Canada’s constitution since confederation?
In my own remarks, I intend to focus, almost exclusively, on the injustices which the government’s constitutional package would inflict on my province. I do so unashamedly because, if members in this House do not stand up for the smaller provinces, no one will; certainly the government will not. At the same time, by focusing on injustices inflicted by the resolution on my province and region, I hope to draw attention to the violation which is being done to confederation itself. Just as the civility of any society can be judged by how it treats its minorities, the vitality of our federal system can be measured by how it responds to the concerns of its smallest partners. By that standard, the government’s package of constitutional change fails miserably.
Let us look at the proposed resolution for a joint address to Her Majesty the Queen respecting the Constitution of Canada, in particular, the amending provisions. The Parliament of
Canada will be asked to approve a proposal to ask the British parliament to terminate its authority in all matters relating to the amendment of the Canadian Constitution. I have no quarrel with that. My party has long favoured the patriation of the British North America Act. Why should we Canadians have to go cap in hand to another country, even our mother country, for changes in our constitution? We should not.
But, following patriation, the amending formula that would likely apply under the government’s resolution would be that outlined in sections 41 and 42. In reality, there are two amending formulae. The first would require the approval of Parliament and some of the provincial legislatures. The second would require the approval of Parliament and of the people of some of the provinces through a Canada-wide referendum. In either case the same approach is taken in the calculation of provincial consent, whether expressed indirectly through the provincial legislatures or directly through a plebiscite. It is at this point where, in effect, three classes of provinces in Canada would be established.
In the first class of provinces would be Ontario and Quebec, for each is treated as a region unto itself and given an absolute veto over any future constitutional change. All other provinces would be reduced to the status of second class, except for Prince Edward Island, which would have the dubious distinction of being in a class by itself, that of third class.
In the west, for example, the approval of any two provinces comprising 50 per cent of the population of that region is required. Although not enjoying a veto, as Quebec and Ontario would, any province in the west would have at least a chance to join with another province in that region to make up the required 50 per cent. In effect, given the current populations of the western provinces, British Columbia would have a near veto because no other two provinces together now make up 50 per cent of the total population of the west. British Columbia, then, would have to be one of the two. In future, however, if population shifts occur, such may not always be the case, and ail western provinces might be on an equal footing as far as sections 41 and 42 are concerned.
By contrast, in the Atlantic region, Prince Edward Island would not now, and will likely never be able to join with any other single province in the region to meet the 50 per cent regional population requirement for constitutional change under sections 41 or 42. Thus, Prince Edward Island’s approval or disapproval of a proposed constitutional change would be rendered irrelevant. The island would be denied any role whatever in constitutional decision-making. I am not arguing for Prince Edward Island to have a veto over constitutional change. Nor am I arguing that the rule of federal-provincial unanimity should apply before constitutional change can occur. Clearly, that would place Canadians in a constitutional strait-jacket.
But, just as the approval of all provinces should not be required for constitutional change, so also no province should be cut out of constitutional decision-making altogether. Yet the resolution proposes to do exactly that to Prince Edward Island.
On Wednesday, October 15, the Prime Minister (Mr. Trudeau) described the amending formula in the resolution as the Victoria charter. Mr. Speaker, it is not. At best, it is a substantially modified Victoria charter. Under the Victoria charter, 50 per cent of the provinces in the Atlantic region, any two provinces, would have had to agree to a change in the constitution. Although the Victoria charter required the approval of at least two provinces in the west comprising 50 per cent of the population of that region, the same charter only required the approval of two of the provinces in Atlantic Canada, regardless of population. Accordingly, under the Victoria charter, Prince Edward Island could join with any province in the region to approve or oppose constitutional change. Under the modified Victoria charter, no such possibility exists.
Mr. Speaker, my party strongly opposes section 41 and section 42 because, among other reasons, these sections create three classes of provinces in a country where such a political caste system should be anathema. To my mind, section 42 is particularly repugnant. By providing for the imposition of constitutional change through referenda, section 42 undermines the elected representatives of the people at the provincial level. In doing so, the section debases the provinces as vital partners in our federal system.
The affront to federalism posed by section 42 is compounded by the fact that the federal government—not the federal government in concert with the provinces but, rather, the federal government acting alone—would control the rules of the referendum, its timing, and even the wording of it. Worse still is the danger that the federal government might also use huge amounts of advertising and public opinion polling dollars to manipulate the results. Indeed, the record of the present government demonstrates the likelihood of that happening. Under such circumstances, the referendum votes of the people of Prince Edward Island would be buried under an avalanche of votes from the huge metropolitan areas of the country. In Ontario alone there are at least eight cities which have populations greater than Prince Edward Island’s. Surely democracy is more than just a matter of numbers. I ask hon. members, should Prince Edward Island’s long history as a separate province not count for something?
A much fairer formula for Prince Edward Island, for the other provinces and for all of Canada is, I think, the so-called Vancouver formula—a formula agreed to by all the provinces and the federal government this past summer, but one on which the Prime Minister has refused to act. Under that formula, constitutional change would require the approval of Parliament and seven provinces making up 50 per cent of the population of Canada, with an opting-out provision on certain selected exclusive provincial rights. Any proposed changes to the constitution would then proceed according to the formula. Such a formula would give my small province some role in constitutional matters though, of course, not a veto.
For example, suppose six provinces comprising 50 per cent of the population of Canada agree to a constitutional change but they require the approval of a seventh province, irrespective of its population. Prince Edward Island could be that
seventh province. Similarly, although less likely, suppose seven provinces agree to a constitutional change but they do not quite make up 50 per cent of the population. They might require the approval of Prince Edward Island’s tiny population to put them over the top.
I am not arguing that Canada should tailor-make its constitution to meet the particular circumstances of Prince Edward Island, or of any other single province for that matter. I am saying, though, that whatever formula is adopted, it should not be unfair to any province. By that test, the Vancouver formula is infinitely better than the so-called modified Victoria charter.
Sections 41 and 42 constitute a direct assault on P.E.I.’s interests as a separate province of Canada. The resolution is an affront to our province—and, indeed, to all provinces—in a number of ways.
May I draw your attention, in particular, to section 44. That section effectively emasculates the Senate of Canada in constitutional decision-making. It says that an amendment to the constitution can be made without the approval of the Senate under specified circumstances. The government is proposing to change unilaterally, in a fundamental way, a central institution of Parliament; an instrument established at confederation specifically to safeguard the rights of small provinces like Prince Edward Island. And it is doing so in a fashion that the Supreme Court of Canada declared ultra vires when the government tested the legality of a similar measure, Bill C-60, before the court just ten months ago.
To my mind, Canadians all too often and too lightly dismiss the Senate as an anachronism. Now is not the time, nor is here the place, to point out the usefulness, both real and potential, of the red chamber. But it is well worth stressing the importance placed upon the Senate by the provinces, especially the maritime provinces, at the time of confederation.
In a federal assembly based on representation by population, the maritime members knew they were destined to be heavily outnumbered. Their one hope of redressing the political imbalance lay in the Senate, or the “Legislative Council” as it was then called. The upper house was clearly seen, and specifically constituted, as a defender of regional and provincial interests. The question of representation in the Senate was, in fact, the most hotly debated issue of the proposed federal scheme at the Quebec conference in October, 1864.
The leader of what was later to be called the Liberal party, George Brown, called the equality of representation for the regions in the Senate “the very essence of the compact” that was confederation. “On no other condition”, he said, “could we have advanced a step”. Professor Robert MacKay, an acknowledged expert on the Senate, has described it as “the last means of defence for the protection of provincial or sectional rights”. Yet the present federal government is proposing to reduce dramatically the power of the Senate in constitutional matters. Not only will small provinces like Prince Edward Island be left to fend for themselves in the face of national referenda dominated by the large populous provinces and cities of Canada, those small provinces will also lose the protection afforded them through the Senate by the terms of confederation itself.
What the present federal government is trying to do is nothing less than change the rules of confederation to the point where we will no longer have a federal system in any true sense of the term. My leader has said that the Prime Minister’s concept of federalism is much closer to a unitary state than a federal state. I believe he is right. If we are to have a form of unitary system in Canada, then the maritime provinces may as well close shop today. Certainly, they will cease to have any real say in constitutional questions.
And where will it all end? In future it will be easy for the federal government to obtain the constitutional changes it wants. Not even the Senate will be there to stop a majority prime minister hell-bent on getting his own way. For example, the British North America Act guarantees the right of a province to a number of members in the House of Commons not less than the number of Senators representing the province. That guarantee is a most important one for P.E.I. Few other provinces, perhaps none of them, need the same protection because their respective populations are large enough to assure them an adequate number of seats in the House.
Yet section 50(f) of the government’s resolution proposes that the relevant section in the Canadian constitution may be changed in accordance with the amending procedure prescribed by section 41 or 42 of the resolution. Given the adverse implications of section 42 for P.E.I., one wonders how long the island will be guaranteed a minimum of four seats in the House of Commons. My province will not be able to count on the Senate to safeguard its historic constitutional right in that connection, since the role of the upper house in constitutional matters will have been severely curtailed if the resolution is not substantially changed.
A moment ago, Mr. Speaker, I referred to George Brown’s 1864 description of confederation as a “compact”. I believe that, in a special sense, confederation was a compact and that great violence will be done to it by the federal government’s resolution.
I would be the first to agree with my lawyer friends in the House that the confederation settlement was not a contract in the technical or legal sense. The BNA Act was, after all, a British statute, not a Canadian one. None of the colonies was sovereign at the time of confederation, so no government among them was legally competent to enter into any binding agreement with the others. Furthermore, Ontario and Quebec were brought into existence by the BNA Act. Thus they could not have been parties to a legal compact that established them.
Confederation was, nevertheless, a distinctly Canadian response to a Canadian problem. If confederation was not a
compact in the strict contractual sense, the parties to it did make mutual commitments. The terms of the union written into the BNA Act, though finally settled by the British government, followed very closely the Quebec resolutions agreed to by the political leaders of the British North American colonies.
Some of the colonies represented at the Charlottetown and Quebec conferences—my own province, for example—chose not to enter confederation until after 1867, despite pressure from the imperial government. That fact demonstrates that the colonies did have, and did exercise, a fair measure of self-determination.
In a moral sense, then, if not in a legal sense, confederation was a compact. The various communities shared widespread assumptions about the nature of the confederation agreement and those same assumptions made it possible for the communities to accept the agreement.
There was, in other words, a spirit of confederation. That spirit dictated, among other things, that the federal Parliament may not unilaterally cause the Canadian constitution to be amended in any way it chooses. Unilateral action by the federal government on fundamental constitutional amendments, especially those affecting the provinces, would be incompatible with federalism. Worse still, such action would be a serious breach of the mutual commitments made when the Dominion of Canada was established and when new provinces were subsequently added. Yet that is what the present government proposes to do with its resolution.
The spirit of confederation is not only linked to the fact that distinct social and political communities came together to build a new country. The spirit of confederation is also linked to the fact that those communities, in one form or another, continue to exist to this very day. The spirit of confederation in 1867 consisted of a due regard for the nature and interests of the communities that formed Canada. And the spirit of confederation is the same now. The country could not have existed in 1867, and it cannot exist now, without a reasonable respect for the communities which comprise it and for the institutions through which those communities express themselves.
By riding roughshod over the provinces in such a basic area as the constitution, the present federal government is extinguishing the spirit that gave birth to our country and that has helped keep it united for over a century.
The current federal government is trying to act alone to change permanently the nature of Canada, overriding the wishes of Parliament and the provinces. It is proposing a charter of rights that, however commendable in some ways, imposes enormous obligations on the provinces in what are their exclusive fields—education, property, and civil rights. And, in all of these changes, the government is applying a double standard. The Prime Minister is asking the British parliament to make all the changes he wants. But changes sought by others, in future, will require a new amending formula that is heavily loaded in favour of the federal government at the expense of the provinces, especially Prince Edward Island, which would be excluded from the process altogether. The government’s resolution betrays the spirit of confederation and, in doing so, betrays Canada itself.
Your Honour, I do not want to leave the impression that I am personally opposed to everything in the resolution. The entrenchment of the principle of equalization, in section 31, is especially welcome. Still, let us not be seduced into believing there is more in section 31 than meets the eye. Although there is an expressed commitment to provide “essential public services of reasonable quality to all Canadians”, how such a goal is to be achieved is not mentioned. Certainly any reference to equalization payments is conspicuously absent.
In any event, equalization payments, though laudable, are not a panacea for the economic ills that affect many parts of our country, including my own region. The fact is, the per capita income in the Atlantic provinces still lags well behind the Canadian average despite equalization payments and other efforts by both levels of government to reduce regional economic inequalities.
Indeed, an over-reliance on the transfer payment approach to regional disparities is part of the problem. Instead of helping the so-called have-not provinces to become self-sufficient, transfer payments—whether to individuals or to provincial treasuries—have tended to make those provinces even more dependent on the rest of Canada. Since transfer payments are rarely an investment in the economy of the recipient, the money commonly gets recycled back to Quebec and Ontario through expenditures on goods and services produced in the industrial heartland of the country.
In P.E.I., for example, government transfers to persons contributed 23 per cent of the total personal income of the province, compared to only 13 per cent for Canada as a whole. Of the $505 million expenditures by the federal government, the provincial government, local government, and hospitals on the island in 1978, the last year for which figures are available, $426 million was provided by the federal government alone. Prince Edward Island, like the other Atlantic provinces, has become, in a special sense, a ward of the federal government.
Frankly, Mr. Speaker, I am not convinced that such regional economic servitude is exclusively the result of either neglect or accident. One cannot overlook the fact that it has served the interests of central Canada to have the Atlantic provinces as a ready market for their manufactured goods, rather than engaged in manufacturing themselves. National policies, from protective tariffs to freight rates, have consistently favoured Ontario and Quebec—the very provinces whose votes have enabled the Liberal Party of Canada to govern the country for most of this century.
As the Premier of Prince Edward Island put it at the first ministers’ conference in Ottawa last month:
Could it be that the central government only responds ‘in the national interest’ when those who are asked to make concessions are minorities in the House of Commons, but never when those expected to make concessions are the numerical majorities? Could it be that, if we had a truly federal state, in which all partners
had a more significant voice, national policies might more truly reflect the interests of all provinces and, hence, the entire country?
I wish to close my remarks today on the constitution, Mr. Speaker, by expressing profound regret that the government has seen fit to proceed with its constitutional package in a highly partisan fashion. Not only has it alienated most of the provinces through its high-handedness, it has also refused to involve, in any real way, members of the opposition parties in the House. To the extent that the people of Canada have been invited to participate, it has been through government manipulation at the hands of professional pollsters and propagandizers.
The Prime Minister has made constitutional reform his exclusive preserve. I want to stress at this point that, in my view, no member of the House should doubt the Prime Minister’s genuine dedication to Canada nor the breadth of his knowledge of constitutional matters. But a constitution must reflect the preoccupations of more than just one man. A constitution must reflect the aspirations of the society for which it provides the rules of government. What is more, a society’s constitution must have a degree of acceptance in the population at large, even if the legal complexities may not be understood by every citizen.
I believe this government can learn a lesson from history, from the Fathers of Confederation, in particular. Over a century ago they set aside their often bitter partisanship for a greater cause, the union of the British North American colonies. Sir John A. Macdonald, no shrinking violet himself when it came to partisan politics, invited his arch-enemy George Brown, and two other reformers, to join him in a coalition to bring about constitutional change as a means of breaking the political deadlock then faced by the Canada, a deadlock that was greater than any between the federal government and the provinces today. To his lasting credit, though he hated the government leader, Brown accepted Macdonald’s invitation.
The coalition of 1864 lasted right up to confederation because the politicians of the day were prepared to place the public interest ahead of their narrow partisan or personal interests.
By the same token, most of the delegations from the various colonies at the constitutional conferences preceding confederation were composed of representatives of more than one party. At the Charlottetown conference, for example, the P.E.I. delegation was comprised of three government members and two opposition members. At the Quebec conference, the ratio was four to three, with the delegations of other colonies similarly formed.
I am not now calling for a coalition government to deal with Canada’s current constitutional problems. By my fear is this: if the Prime Minister and his government are able to use their parliamentary majority to impose their will—against strong opposition in Parliament, against the opposition of almost all the provinces, and against significant opposition in the country at large—the victory will be seen as a Liberal party victory. For constitutional change to have lasting success, it must be seen as the country’s victory.
Some hon. Members: Hear, hear!
Mr. McMillan: The Fathers of Confederation, despite vigorous debate, soon recognized their meetings in Charlottetown and Quebec as a divinely granted opportunity. They rose to the occasion and built better than they knew.
I must confess, Mr. Speaker, that I was taken aback by the force of media opposition to my party’s call this past summer for a broadly-based special convention to deal with proposals for constitutional change. Such a convention would involve representatives from all parties, at both the federal and provincial levels, government and opposition members alike, as well as a number of distinguished Canadians outside the political realm. To my mind that proposal was a worthy one, though it may be too late to act on it now. It is, however, not too late to follow the spirit that motivated the proposal for a constitutional convention, the same spirit that gave birth to confederation more than a century ago.
The distinguished political scientist, Donald Smiley, has written, and I quote:
A politically organized society cannot in the long run survive without the capacity to appeal effectively to the will and imagination of its citizens, particularly one so little formed as that of Canada and so vulnerable to disintegrative forces from within and assimilative pressures from without.
However successful the present government might be in parliamentary one-upmanship, a constitution cannot be forced on a people if it is to serve them long and well. I urge the government to reassess its tactics in the crucial days and weeks ahead. The confederation spirit has served the country well for over a century. If given another chance it will not let us down now.
Hon. Bryce Mackasey (Lincoln): Mr. Speaker, I have listened to most of the contributions and speeches which have been made on this very important subject matter, the proposed resolution which will, I think, affect the future of this country very dramatically in time. I do not for a moment attempt to minimize the impact of this proposed resolution, if adopted. I think the real question is not whether it will have an impact on Canada and on its citizens but whether that impact will be beneficial or detrimental to the future of Canada and to its citizens.
I have listened through a great many debates in this House. I have participated in a few. I have always felt somehow that the House of Commons, with all its faults, had always met the challenge of the day, and I have a feeling that it will once again.
I must commend the hon. member who just sat down for his very reasoned, passionate and logical contribution. There have been many in this particular debate because the whole nature of the House of Commons is such that members from all parties on issues, particularly as important as this, should reflect the concern and the misgivings of their particular regions. That really is the main function of a federal system,
and I must say that I was particularly impressed the other day by the contributions, for instance, of two members from Newfoundland, diametrically opposed as they are, in good Newfoundland tradition, on certain issues. They reflected the tremendous appreciation they have for this great country. They reflected, in impassioned speeches, the concern the regions have that somehow we may be stumbling into a formula which somehow would create the type of imbalance that the Fathers of Confederation were concerned about.
I am not a historian. I am not an expert on the constitution. I reflect, as did the bon. member for St. John’s East (Mr. McGrath), those very forces which molded my thinking. The bon. member’s views are conditioned by the privilege of having lived in Newfoundland prior to 1949, although at times he does not look that old, and he is now a member of the federal Parliament. My views are conditioned by my background, that of an English-speaking Quebecker in my infancy. I am one who has had the privilege of sitting in this House elected from a Quebec riding for I do not know how many years, perhaps 15. Now I have an equally glorious opportunity to represent a riding in Ontario.
Fortune was such that I spent 18 months in the Quebec Assembly where not only Bill 101 was adopted but also Bill 1, which we hear little about these days. It was struck down by the Human Rights Commission of that province. I sat in that assembly in the months preceding the legislation which set up a referendum, and so I know to a great degree how emotional this debate can be and how thin the line is between reasoned participation and impassioned rhetoric which will not stand the test of time.
I participated in this House in the official languages debate. I can remember the resistance to change in those days. That was understandable. Members came from parts of the country where bilingualism was not an issue. To the everlasting credit of the House of Commons that important piece of legislation was adopted, after reasoned debate and concern for what were legitimate points of view expressed in that debate. I think in retrospect there is nobody in this House who would want to touch that piece of legislation, even though time bas proved that at times it was implemented with too much zeal, or not enough.
I was here and participated in the flag debate. I remember that debate very well. What I remember are the good contributions which were made from all parts of the House. Again I understood the concern of bon. members who felt that somehow we were severing for all time our ties with the Commonwealth of Great Britain. I remember the impassioned and moving speeches on the Red Ensign and on the contribution that flag had made to this country in two wars. There were legitimate concerns, but again in retrospect I think we feared for nothing. The Canadian flag has been a unifying flag, perhaps because it was acceptable to all Canadians regardless of whether they traced their heritage to Great Britain or France. It was a flag which was devoid of symbols. It was uniquely ours, and again I must say that that was a traumatic debate which lasted the better part of a year, or a summer at least.
I will not refresh the memories of hon. members with other milestones in the slow but sure evolution from colonialism to full nationhood. Initiatives have been taken not only by this side of the House but also by Conservative prime ministers. I might say on behalf of the bon. gentleman who has led the Conservatives and who was prime minister for a little while that, in his way, the Leader of the Opposition (Mr. Clark) bas contributed to unity by his methods and by the efforts he made to learn the other official language of this country.
I often wonder if perhaps in French-speaking Quebec those efforts are appreciated to the degree they should be, because never again can we Liberals in that province subtley suggest that the Conservative party did not understand or did not want to reflect bilingualism. I think that myth should be dissipated once and for all, not only because of the efforts of the Leader of the Opposition to learn French but because of the stand of the opposition on the Official Languages Act.
Some hon. Members: Hear, hear!
Mr. Mackasey: I do not propose to speak in any great detail about this clause or that clause. After all, what we are asked to do in the House is to refer the resolution proposed by the government to a joint committee of the House and the other place. Once that proposed resolution reaches the committee, there, I am sure, many of the concerns, observations and fears of hon. members opposite can be resolved, discussed, debated, put at ease and, perhaps, result in amendments—I do not pretend to know. But I do know that hundreds of thousands of people who are watching this debate on television, Canadians from all walks of life, are beginning to ask—at least that is what I found over the weekend—”when will you complete the preliminary step toward the adoption of the resolution, and when will this resolution be turned over to the committee?” I do not pretend to know the answer, but I leave with the House leaders the observation that if this debate is to have the desired effect on a matter as fundamental as changing the constitution, if it is to be done in the proper atmosphere, then I think we would want to come to some conclusion as to when this resolution should be referred to the committee, and I do not think the opposition would want to be charged with obstruction through a series of questions of privileges or points of order.
As so many hon. members have pointed out, we are affecting the constitution of this country to a tremendous degree, at least the written portion of the constitution, the British North America Act. I have thought very deeply about it because, by reason of the fact that I am English-speaking and did have the privilege of living for so many years in Quebec and representing ridings in Quebec, I was preoccupied, more than most, I suppose, with constitutional minority rights. The minorities about whom I was most concerned, of course, were the French-speaking Quebeckers. I used to get up in the House in the 1960s and speak with great pride about how well I was treated in that province as an English-speaking Quebecker. I am sure I spoke in every province in the 1960s at the request of the late
Mr. Pearson on the type of Canada we could fashion with a high degree of tolerance and understanding of both official languages, cultures and religions, which was a way of life in Quebec, if only the same tolerance and understanding could spread right across this great country of ours.
I must say that I have seen tremendous progress. I can remember when, in 1962, I felt a moment of embarrassment when a group of my constituents came to visit Parliament and I could not find a bilingual guide to explain the beauty of this building. That is no longer the case. I can remember also when documents were never tabled in the House in both official languages simultaneously. It was understood. You babbled something about translation when you tabled the documents, and it was done six weeks or two months later, if at all. That is no longer the case.
I have seen much progress in Ontario. Since I have represented Lincoln, I have been impressed at the progress that the Conservative government of Ontario has made in the area of language and culture.
I was also there in Quebec, Mr. Speaker, when the provincial government took away some of the privileges that I had as an English-speaking Quebecker, which to me had become rights; for example, the right to put a sign over my store in any language if I was in business, a right which Quebeckers no longer enjoy. I realized then how fragile the rights of individuals are if the force of those rights is found in provincial legislation and not in the federal constitution. I came to that conclusion a long time ago, Mr. Speaker.
Indeed, when I think back to the vision of Mr. Diefenbaker’s Bill of Rights, Mr. Pearson with his flag, or the Prime Minister’s (Mr. Trudeau) dedication to the Official Languages Act, I do not think it is an exaggeration to say that if these fundamental changes had not been made, if we had not moved to strengthen the symbols of federalism and strengthen federalism in the House itself, if we had not once again pleaded with French-speaking Quebeckers of the calibre of our Prime Minister, the Minister of Justice (Mr. Chrétien), the present Postmaster General (Mr. Ouellet) or, going back, the late Guy Favreau—I could name them all, some of them no longer here—if we had not prevailed on those people to come to the House of Commons to remind French-speaking Canadians that this was their country, all of it, not just Quebec, that indeed there was a role for them to play, that they could become prime ministers and that they could become cabinet ministers of great strength and influence who commanded respect despite the fact that they were French-speaking Quebeckers, that discrimination, at least here, was a thing of the past, I doubt very much that we could have won the referendum.
So I say to you, Mr. Speaker, and to all hon. members, that what we are doing right now will have the same impact in two, three, five or ten years from now if the force of separation in that province or in other provinces rears its ugly head. The Fathers of Confederation opted for a federal system. If you read their speeches carefully you will find that they also opted for a strong central government in our federal system, as strong as they could obtain and not lose the support of Quebec and the Atlantic provinces.
I have suggested that, throughout the years, through provincial legislation, through economic shifts, the central government has become relatively weak in comparison to some of the provincial governments, particularly in the field of the economy. You might say to me now that there are ways and means in which this imbalance can be redressed. That is true, it has happened. The federal government assumed tremendous powers through necessity during the war, powers which it has been reluctant at times to give up. Some powers, I think, it has given up too easily. But the present formula for federalism, what we are tinkering with—and that is the danger of tinkering with it—has been remarkably successful.
We are the finest country in the world because of our economic system. We have been able to combine free enterprise with social reform, and provide our system with the best educated work force in the world because of our dedication to equality of opportunity and free education wherever possible. We have the healthiest work force in the world, thanks to medicare and the determination of a series of governments to look after social reform. We have the very unique concept of equalization, sharing, which have spelled the difference between inequality and equality of opportunity in this country.