Canada, House of Commons Debates, “Establishment of Special Joint Committee of the Senate and House of Commons”, 32nd Parl, 1st Sess (8 October 1980)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1980 at 3395-3414.
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COMMONS DEBATES — October 8, 1980
ESTABLISHMENT OF SPECIAL JOINT COMMITTEE OF THE SENATE AND HOUSE OF COMMONS
The House resumed consideration from Tuesday, October 7, 1980, of the motion of the Minister of Justice and Minister of State for Social Development (Mr. Chretien):
That a Special Joint Committee of the Senate and of the House of Commons be appointed to consider and report upon the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the government on October 2, 1980, and to recommend in their report whether or not such in address, with such amendments as the committee considers necessary, should be presented by both Houses of Parliament to Her Majesty the Queen;
That 15 members of the House of Commons to be designated no later than three sitting days after the adoption of this motion be members on the part of this House of the Special Joint Committee;
That the committee have power to appoint from among its members such subcommittees as may be deemed advisable and necessary and to delegate to such subcommittees all or any of their powers except the power to report directly to the House;
That the committee have power to sit during sittings and adjournments of the House of Commons;
That the committee have power to send for persons, papers and records, and to examine witnesses and to print such papers and evidence from day to day as may be ordered by the committee;
That the committee submit their report no 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. Roger Simmons (Parliamentary Secretary to Minister of State for Science and Technology and Minister of the
Environment): Madam Speaker, as I was concluding my few remarks on this subject last night, my good Tory friend, the hon. member for Esquimalt-Saanich (Mr. Munro), had the wisdom to rise on a point of order and express his concern over the degrading nature of the incident that I had raised.
You will recall that I was reporting to the House on an appearance on national radio earlier last evening by the Right Hon. Leader of the Opposition (Mr. Clark) during which he rather shockingly misrepresented the contents of this constitutional proposal. You remember, too, that at that time I gave some specific details of the misrepresentation by the Leader of the Opposition. I want my good friend from Esquimalt-Saanich to know that I have had time overnight to reflect on the suggestion he made, and I certainly agree with him. What I was saying on the subject should really not have been said in public. I will take his wise counsel and refrain from further public reference to the incident.
In so doing I trust that the hon. member for Esquimalt-Saanich will, for his part, undertake to raise the matter with his leader, to counsel him and appeal to him to stop the misrepresentation of the detail of this matter. It is degrading, Mr. Speaker, and therefore unbecoming of the Leader of the Opposition. I will take the hon. members wise counsel. It is advice well given and well taken. I ask him not to be unduly hard on my friend from Yellowhead. Lord knows, he has enough trouble these days, with Bill Davis and Brian Mulroney and the caucus. Besides, we need him, He is the best thing we have had going for us since John Bracken back in 1948.
The proposal that would establish a joint committee whose instructions would be to take these documents as a working paper is a good proposal. It really is the only effective and efficient, yet fair way, to handle a matter of this magnitude, diversity and complexity. Let all of us as members of this House, whether we become members of the committee or just interested observers in the process of that committee, keep in mind that it is, at best, a working paper. It is not the refined, finished document; for that we need the minds of the 25 people who will serve on the committee in the coming months.
For that reason it is perhaps premature for me, or for any member of the House, to address myself in any detail to the content of the resolution. That is, more properly, the job of the committee. I am sure, nevertheless, it would be quite in order for me to comment for a moment on some of the principles embodied in this proposal—patriation with a provision to amend, the charter of rights, entrenchment of equalization in the constitution.
Part of the wisdom of this particular document and the wisdom of those who drew it up, is that it does not address itself in any form or fashion to the substantive issue of distribution of powers among orders of government. For that reason alone the Prime Minister (Mr. Trudeau) is deserving of the commendation of this House and the provincial legislatures across the country. I am sure, knowing how close he has been to this subject over the years, that the temptation must have been very great indeed on his part to contrive an omnibus resolution embodying several other issues on which he and this government feel strongly. I refer, for example, to those measures that are required to make this country a truly workable economic union, and measures such as the free movement of goods and services. To the credit of the Prime Minister, he has resisted that temptation. These matters will be dealt with in due time as provided for in the proposal and in full dialogue with the provincial administrations.
It is the proposed charter of rights which I find most gratifying. Mr. Speaker, especially that right which deals with the free movement of people. I realize, in addressing myself to this subject, that it will strike down in Newfoundland, my own province, regulations concerning job preferences for Newfoundlanders. I realize that, but that is as it should be, for two reasons.
In the first place the Newfoundland regulations are morally wrong. They are morally wrong, given the spirit of this country. In the second place they are, in any case, counter-productive. What guarantee does the government of Newfoundland and Labrador have that retaliatory legislation or regulation will not be imposed by other provinces? How long will that take, if we keep applying the litmus test to people coming to Newfoundland and Labrador? If we say to them, “Where are you from?” and they reply that they are from Alberta, or Nova Scotia, do we say that they cannot work in Newfoundland? How long would it be before the government of Alberta would say, “What about the several thousand people in Fort McMurray who are native born Newfoundlanders? How long before we ship them back?” How long would it be, Mr. Speaker, before the number of Newfoundlanders who work with the CPR in Saskatchewan or in Powell River in British Columbia, in Flin Flon and Thompson, Manitoba, or Cambridge and Toronto in Ontario, are told the same thing? I am informed that there are a couple of hundred thousand Newfoundlanders in Ontario alone.
At last count the Newfoundland regulation accounted for exactly 382 jobs for Newfoundlanders. In terms of my point about counter productivity, if that figure is set against the numbers in Powell River, Fort McMurray, Toronto, Cambridge and Flin Flon. I submit that the comparable number would be slightly more than 382. Perhaps I have made my point, Mr. Speaker, about the regulation being counter productive. But apart from that, Mr. Speaker, it is wrong.
I do not want to live in a country where I am told where I can live and where I can work.
Of course, we have to entrench these rights in the constitution. If there was one thing more appalling to me than others at the first ministers’ conference last month, it was the sheer number of people who, with straight faces, told us that legislation could better protect our rights than constitutional entrenchment. By way of example, Mr. Speaker, suppose you were the premier of a province. Suppose you were the wisest, most fair, most humanitarian God-fearing premier Canada had ever had. And suppose, because of your humanitarian motives, you introduced the best legislation to protect the handicapped people of this country, to protect the Indians, the
Metis and Inuit, to protect the minorities, racial, religious and otherwise, and then, because of your mortality, one day you died or you left office, retired or were defeated. Suppose you were succeeded by somebody who would not necessarily subscribe to your humanitarian view of life: someone who may be more ruthlessly pragmatic about things. What would happen to your legislation then if left to the whim of the majority of that particular day?
That is the kind of reason why I insist and I believe very strongly, with everything that is in me, that the constitution must embody a charter of rights. I do not mean that we should not be able to get at it. This document has a provision to amend so we will be able to get at it in a way that requires due thought, and that requires proper, sober judgment. We will not be able to react to the political whim of the moment or to what appears to be politically popular at a particular time. Of course we must have entrenchment. It is appalling that so many voices are raised against entrenchment.
Last night I was invited by my Tory friends opposite to say a few words about Premier Peckford. I shall be glad to oblige. The Premier of Newfoundland and Labrador is a man whom I know very well. He is a personal friend of I5 years. Indeed, the only job he ever had other than that of a politician, is one which I gave to him. When I was principal of a high school he was the head of my English department. As young care-free bachelors we tripped around the globe together and we exchanged views on many subjects, including especially the subject of politics, I found that he and I share many of the same hopes and aspirations for our people in Newfoundland and Labrador.
Hon. members will understand, therefore, something of the sadness, the crushing disappointment and the jolting shock which I experienced a few weeks ago at the first ministers’ conference here in Ottawa when I heard the Premier of Newfoundland and Labrador utter these words, which I quote from a direct transcript of the proceedings: “The Prime Minister and Mr. Levesque articulated two different visions of Canada.” The Premier of Newfoundland said: “I would have to side with the one advocated by Mr. Levesque.”
Some hon. Members: Shame!
Mr. Simmons: As a Newfoundlander and as a Canadian, these have to be the saddest words I have ever heard. We all know what Mr. Lévesque’s view of Canada is. If there is one single aspect of the constitutional dialogue which is absolutely crystal clear in the minds of Canadians, it is Mr. Lévesque’s view of Canada; what he would like Canada to become. The kindest statement of the Levesque position—and I put it this way so it doesn’t appear as though what Mr. Peckford said was taken out of context—is that he believes in sovereignty-association. He believes that Canada ought to consist of a number—be it one, two or ten, it does not matter to Mr. Levesque—independent electoral units, states or provinces, call them what you will, which would be a free association, one with the other, for certain reasons of trade and monetary policy. That is the Levesque view. That, I am sad to reflect, is the view of Canada which Mr. Peckford has said publicly he favours.
I want to tell him, and I tell him in sadness, not in anger and not to score political points, that that is not the view shared by the overwhelming majority of Newfoundlanders and Labradorians.
Some hon. Members: Hear, hear!
Mr. Simmons: There is no part of this federation which has a more positive view of the federal role than does Newfoundland, and with very good reason. We have been benefactors for 31 years of the amazing wealth of this country. The very prospect of offshore oil and gas off Newfoundland’s coast is today a real live prospect, a real live possibility, because and only because of the tax policies of this federal government concerning frontier exploration.
Do hon. members realize the hundreds of millions of dollars of federal tax revenues which have made these discoveries possible? Do hon. members realize that the Newfoundland offshore development would today be nothing more than a pipe dream, nothing short of wishful thinking, were it not for the tax policies of this particular government and our involvement in the matter? Now that this governments policies have ensured that Newfoundland’s economic prospects will be better than anybody ever dreamed of, it saddens me to hear those at the provincial government level in Newfoundland wanting to rewrite history, and dishonestly parading the impression that somehow the offshore development is something for which they are responsible.
I have digressed, Mr. Speaker. I was talking a moment ago about Mr. Peckford. Let me tell you, sir, that his heart is in the right place. His immediate agenda for leading our province toward greater prosperity and cultural fulfilment is misguided. I tell him the Levesque route is a road to disaster. Premier Peckford, I am sad to say, is the victim of some very bad, unwitting advice from the pen and the lips of a few who actually share his dream and share my dream for Newfoundland and for Labrador but who lack the know-how to achieve it. They believe sincerely in their exasperation just like a twelve-year-old boy who by running away from home believes he can somehow solve his problems.
I am a Newfoundlander—
An hon. Member: Not very loyal.
Mr. Simmons:—I am a Canadian, and not necessarily in that particular order. Please do not ask me to choose between the two. I was not born a Canadian, but I am proud to say that I have been one for the past 31 years since 1949 when Canada had the good wisdom to join Newfoundland!
We, in Newfoundland and Labrador, did not vote in 1949 to forfeit our freedom but rather to expand it and to give it some meaning. How free are you when your sons and daughters had to leave their homeland to go to what was a foreign country—
Canada in those days—to get employment and to raise their families or to what we called the Boston states—the New England states—where there are today hundreds of thousands of native born Newfoundlanders—how free are you if that is the price of freedom? We did not forfeit any freedom in 1949. Let there be no mistake about that. We expanded it and we gave it meaning. We did not abandon our little independent proud fiefdom—our little relic of an almost feudal system. We did not abandon that little powerless, economically impotent fiefdom in 1949 so that we could become one of ten little economically weak fiefdoms in 1980. Because, Mr. Speaker, if you listened carefully to what some of the premiers were saying, and I refer particularly to Premiers Bennett, Lougheed, Levesque, and Peckford, it is clear that their concept of this country can only be described in terms of a feudal system, in terms of an economically weak fiefdom—or ten fiefdoms— at the mercy all the time of the international community.
On this note I conclude. We, in Newfoundland and Labrador, know where we came from as a people. We were a separate country from 1855 until 1949. We know where we came from and we are very proud of it, but please do not ask us to go back.
Some hon. Members: Hear, hear!
Mr. Friesen: Mr. Speaker, I simply ask for the unanimous consent of the House—I think the speakers time is used up— to ask the hon. member one short question.
The Acting Speaker (Mr. Blaker): Do I see that the hon. member for Burin-St. George’s (Mr. Simmons) is prepared to accept a question, and do I have the consent of the House to proceed with one question? Is it agreed?
Some hon. Members: Agreed.
Mr. Friesen: Mr. Speaker, I listened carefully to what the hon. member had to say. When talking about the premiers, the hon. member for Burin-St. George’s said, and I quote—I believe accurately that he did not want to be subjected to “the whim of the majority of the day”. I accept that. I think that is a very real danger. If the hon. member is afraid of that. why would he then support section 42 of this particular provision which enables the federal government to use exactly the same tactic?
Mr. Simmons: Mr. Speaker, I thank the hon. member for his question. He brings up an extremely important point. First of all, I am glad to hear that he docs agree with me on my concern about the whim of the moment. Section 42, if he would read it carefully, as I am sure he has, points out that not only will there be a simple SI per cent majority across the nation, but that there will be a 51 per cent majority in each of the defined regions, so that there is there the added protection which these regional majorities would afford. Also, if the hon. member for Surrey-White Rock-North Delta (Mr. Friesen)—I see he shakes his head on that, but I tell him that I have looked at it in the past hour or two because that very section was the subject of some other discussion I had earlier today. I ask him to read that, and if I have not reflected an accurate intent of that I would be prepared to discuss it with him further, either inside or outside the House.
The point I make is that section 42 does require that there be the majority of the several regions of the country defined in that section. Also, of course, notwithstanding what I have said about whims, indeed in contrast to what I said about whims, it is one thing for a legislature in which a premier commands a majority to, this week or this month, react very quickly to a popular concern in the country. It is quite another thing to invoke section 42 after you have gone over a period of months, and I submit years in some cases, through another process of consultation with the provinces and debate in this particular Parliament. In that context, I submit to my friend that section 42 becomes a method of sober second thought or third thought after the other processes have been gone through.
Hon. James A. McGrath (St. John’s East): Mr. Speaker, I have been in this House for the better part of 20 years. During that period of time I have had the privilege of sitting here with six different prime ministers and six different leaders of Her Majesty’s loyal opposition. It is a well-known and accepted convention in this House that the members of this place who occupy these particular offices are accorded a respect and a dignity in keeping with those offices. Because we are a civilized Parliament, and because of that convention, in all the years I have been here I have never witnessed such an attack on one of the members of this House who occupies the distinguished position of Leader of the Opposition and former prime minister—I have never witnessed such a scurrilous personal vilification of an officer of this House in all the years I have been here, and I am ashamed that it should come from a member of Parliament from my province.
Some hon. Members: Hear. hear!
Mr. McGrath: Having sat through the first chapter of the hon. member’s speech last night. I intended to treat it with the silent contempt that it so justly deserved. I was somewhat encouraged today to note that he was able to rise to a somewhat higher plane, although at times he did not succeed in doing that. However, I cannot ignore it. I can only deal with it in this way.
The hon. member will not serve himself well by indulging in that kind of personal vilification and scurrilous attack on any member of this House, particularly on a former prime minister and a man who is leader of Her Majesty’s Loyal Opposition (Mr. Clark).
Some hon. Members: Hear, hear!
Mr. McGrath: I suggest to my hon. friend that if he aspires to be anything higher than a parliamentary secretary, he better clean up his act. Indeed, I am sure hon. members will understand when I say to them that there was a perceptive rise in the level of debate in the legislature of Newfoundland when
the hon. member for Burin-St. George’s (Mr. Simmons) resigned to run for this House.
I welcome the opportunity to participate and, hopefully, make a contribution to this debate. It has been described, and I suppose will continue to be described, as an historic debate. Whether it is historic will, of course, depend upon the government.
Along with other hon. members I followed with great interest the developments of the past summer. I was fascinated when hardly a week went by without some news from some major metropolitan centre in Canada regarding Canada’s constitution. This, of course, was a part of the government’s strategy. I do not fault them on that. They wanted maximum exposure. Indeed, in certain circumstances that is commendable.
They had the committee of ministers, federal and provincial, meet in various cities across the country to try to pave the way for a consensus in preparation for the first ministers’ meeting that was to take place in September. All they succeeded in doing, unfortunately, was to agree on a preamble. There were some significant compromises made. Indeed, there were indications of that during the course of the first ministers’ meeting. Of course that series of meetings was supported by a government advertising campaign to which reference was made in the House today.
All of it was very carefully orchestrated to prepare the Canadian people for the unilateral action that the government now proposes by the measure before the House. That unilateral action was supported by an advertising campaign and a series of meetings which anticipated the failure of the first ministers to reach an agreement.
I listened with great interest to the speech of my learned friend, the Minister of Justice (Mr. Chrétien), for whom I have great respect and whom I look upon as a friend. I listened carefully because I was hoping to find within his remarks some hint that the government may be open to meaningful suggestions to change the course of action they set out. I listened because I felt very strongly in my own heart, as I feel today, that if the government is not prepared to be flexible, if it insists on digging in on this measure, on such a fundamental thing as the renewed patriation of our constitution, that will have the unfortunate, regrettable and perhaps even disastrous effect of dividing this country at a time when there is a mood abroad in the country, an element of consensus for meaningful constitutional renewal.
We have come a long way. We now agree there is a consensus on patriation. There is no question about that at all. Whether we patriate with entrenchment is the question. As a Canadian and a member of this House. I would find it repugnant to have such a basic thing as Canadian rights and fundamental freedoms, linguistic rights and the principle of equalization become the subject of a legislative measure of a foreign parliament. My view is that we should agree, and I believe there is agreement that we should patriate and the only body capable of dealing with entrenchment of anything. whether it is human rights, linguistic rights or the principle of equalization, is the Parliament of Canada and the legislative assemblies of the provinces.
Some hon. Members: Hear, hear!
Mr. McGrath: Why is the Prime Minister (Mr. Trudeau) afraid to entrust to this Parliament of the land, which passed the Bill of Rights brought in here by the late distinguished right hon. member for Prince Albert, the responsibility for dealing with those questions which are within its domain under the existing constitution? Why would this government be afraid to entrust to the legislatures of the land the right to deal with those things which are within their domain under the existing constitution? Those are the questions, sir.
As my leader said so eloquently in his speech during this debate. what the government proposes by this measure is not only to patriate the constitution with human rights and linguistic rights entrenched, but to change fundamentally Canadian federalism in such a way as to give the federal government, in terms of constitutional powers, powers that have no place in a federal system. In other words, the government would be assuming for itself, if it has its way, powers which are normally identified with a unitary state. That, of course, fits in very nicely with proposed section 42 which provides the constitutional means, if the government has its way, whereby the government can bypass Parliament and the legislatures of the country and go directly to the people.
There are times in a parliamentary democracy when a referendum or a plebiscite has its place. I can think of, for example, the question of compulsory military service, to name just one. But to make that an instrument of the constitution would, as my leader has said, and as others are now saying, fundamentally change the whole system of federalism in this country in such a way as to destroy ultimately the federal nature of the country and, consequently, could have the effect of destroying the country itself.
I say that as one who has always been supportive of a strong federal government, coming as I do from one of the so-called have-not provinces. Indeed, the last time we had a chance to debate the constitution in this House I expressed the fear that the provinces, if they had their way in terms of the additional powers they were seeking, could seriously undermine the ability of the central or federal government to carry out the national will and to protect the national interest. I believe in that principle very strongly. I now express the same fear in respect of the federal government, because if the Government of Canada has its way it could, as I have said, fundamentally change the structure of federalism in the country, which could have the effect of ultimately destroying the country as we know it.
We have come a long way in the past few years. Indeed, we have arrived happily at a point in time when there are very few in this country who would not accept the protection of linguistic rights in the constitution. Indeed, I recall as a member of this House the passage of the Official Languages Act. I recall
the division that caused in the House at the time. Indeed, that division was painfully felt in my own caucus. However, I would not hesitate to say that I believe one would be hard pressed to find a member in this House today who would be opposed in any fundamental way to the Official Languages Act. That is as it should be, given the fact that this statute, now the law of the land, helps to redress a grievance which went to the very heart of the unrest in Quebec, and the place of French-speaking Quebeckers in Canada.
I also recall, vividly and with personal regret, and this is the first time I have had the chance to say this publicly, that day ten years ago when this government, with the approval of this House, imposed the War Measures Act. It is difficult to find adjectives to describe that measure, but certainly you could describe it as a Draconian measure designed at the time it was drafted to protect the national security in time of war or, in the wording of the act, in the case of what the act calls “apprehended insurrection”.
That was not a proud moment for any of us, sir, because, and we did not realize it at the time, that move had the effect of placing the entire country under martial law; placing in suspension the very fundamental freedoms proposed for entrenchment in the constitution by this measure. That involves a question which we will want to get back to when we have a chance in committee.
Proposed section 2 of the bill sets out the charter of rights and freedoms. Who in this House would be against any of these basic human rights and freedoms? We are all in favour of “freedom of conscience and religion”, “freedom of thought, belief, opinion and expression, including freedom of the press and other media of information”, and we are all in favour of “freedom of assembly and of association” and the right to vote. Good heavens, who would be opposed to that?
Whether or not the entrenchment of these basic and fundamental rights and freedoms in our constitution, given our parliamentary system and tradition, is the way to go about it, raises a question that keeps bothering me. I have not satisfied myself on that score.
Having said that, that does not put me in second place to anybody who can speak just as strongly for entrenchment, because I believe just as strongly in these basic fundamental rights and freedoms. I believe with all my heart that this country should never permit the imposition of the War Measures Act in time of peace.
It was fascinating to watch the first ministers, the premiers of the country, together with the Prime Minister discuss through the public media Canada’s future. I was touched and deeply moved by the very learned paper presented by Premier Lyon on this question. I must confess I had not given this matter that much thought up to that point in time because I felt entrenchment was so fundamental there was nothing to think about. That argument put forward by Premier Lyon was given equal support by Premier Blakeney of Saskatchewan, representing both spectrums of political thought in this country. I found that very interesting. That is not really the point I wanted to make. It has to be said that we all favour some form of protection of these fundamental rights and freedoms.
The point I want to make is that we have to examine this bill in the context of sections 41 and 42 and the power the federal government assumes to itself in terms of the authority it will derive from these provisions of the bill to bypass the legislatures of the provinces on constitutional change. That is a move which, as I have said, will change the very structure of the nation, and which will change the very partnership concept of the nation that was at the root of the agreement arrived at in Charlottetown and in Quebec by the four founding provinces.
I will not go into that argument at this time because it was covered very adequately and very impressively by my leader and, I might say, by my learned friend and colleague, the hon. member for Provencher (Mr. Epp). My colleagues and I owe the hon. member for Provencher a great debt for the leadership he has given this caucus as our spokesman and chairman on federal-provincial relations.
Some hon. Members: Hear, hear!
Mr. McGrath: The last time I addressed this question in the House, which was just a few months ago, I made the point, and I repeat it now, that each one of us by virtue of his or her election to this place has three principal responsibilities or three constituencies we have to serve. We each one of us have a responsibility to our constituency. We each one of us have a responsibility to our province and, of course, we each one of us have a responsibility to the nation as a whole. There are times when the national interest has to take priority, and I would not hesitate, if the situation warranted, to place the national interest above my own province or constituency interest.
But there are times as well when the national interest is served, and well served, by a member addressing his provincial or constituency responsibilities, and I believe that such a time is now. That is why I would like to take a Newfoundland and perhaps regional perspective as one who takes second place to none in his commitment to this nation, in my commitment to Canada and in my commitment to a strong, viable federal government able to carry out its responsibilities. I am satisfied that I am serving the national interest when I address myself to the regional and provincial implications of the measure which is now before us.
Sir, I doubt if you would find anyone in this country who would be opposed to the entrenchment of the principle of equalization in any Canadian constitution. That too is a part of the very fabric of the nation. The fundamental concept of equality and sharing is the very root of our federal system, but we must be very careful that we do not entrench in the constitution the very thing which equalization seeks to address, regional disparity, and that is a concern of mine.
When this nation was formed 113 years ago, the Atlantic provinces were relatively prosperous for their time. Indeed, they were prosperous by comparison with the other parts of the
nation. Of course those of us who come from the region know all too well the painful history of how we have fallen behind over the past century and how we continue to fall behind. equalization and regional development grants notwithstanding.
What do I mean by the danger of entrenching regional disparity? Over the past century the face of Canada has changed, not only with the addition of new provinces but also with the expansion by the federal government of the boundaries of existing provinces. This has had the effect of placing the maritime provinces, and ultimately Newfoundland, at a serious disadvantage in terms of resource ownership. The benefits of the expansion of these boundaries are now being seen today in other parts of the country, and we are grateful and glad that there is prosperity in those provinces which have had their boundaries expanded.
The Halifax Chronicle Herald spelled it out very clearly at the weekend in a front page editorial, and I quote:
The maritime claim of today is fair and simple. It asks that it be compensated for earlier oversight. It seeks formal acceptance from the other partners in confederation of the right of the maritimes to consider as theirs that undersea land which is a natural extension of the property above sea level. It asks that the resources in that new territory be the property of the maritime provinces in the same sense that resources in formal federal lands now belong to the central and western provinces.
We have seen the boundaries of Quebec extended by 379,000 square miles to include the great James Bay hydroelectric power basin, which will mean ultimately so much to that province. Of course we have seen the industrial heartland of the nation, Ontario, have its boundary extended by 237,000 square miles to the north and to the boundary of Manitoba. We have seen Saskatchewan and Alberta each given an additional 250,000 square miles which were northern lands under the jurisdiction of Canada and belonging to all Canadians.
Simple justice would indicate that the only way the boundaries of our region can be extended is to include the extension of the land mass that lies underneath the sea to the continental shelf. It is the natural extension of our land mass, yet that simple justice is being denied us by this government.
Back in 1968 my party, under the leadership of the Hon. Robert Stanfield, the distinguished former premier of Nova Scotia, accepted as policy that the mineral rights of provinces on the continental shelf belonged to the coastal provinces. I am proud to say that one of the first things we did as a government under the Right Hon. Leader of the Opposition and hon. member for Yellowhead was to implement that commitment made to the Atlantic provinces 12 years ago.
Some hon. Members: Hear, hear!
Mr. McGrath: I have referred to the case of the maritime provinces, which of course by definition excludes my own province of Newfoundland, but I believe a special case can be made for Newfoundland. That case has been made before at first ministers’ meetings and in other forums.
When Newfoundland became a province of Canada in 1949, we entered confederation—notwithstanding the derogatory remarks of my friend, the hon. member for Burin-St. George’s, with which he will have to live—as a self-governing dominion receiving our status under the same Statute of Westminster. We carried with us our sovereignty as a self-governing dominion, including jurisdiction over the continental shelf.
There are those, of course, who would argue that we were at the time a colony of Great Britain. That argument, of course, is legally and technically not correct. We were a self-governing dominion, albeit with our constitution voluntarily in suspension that is, our legislative assembly —but it is interesting to note that five minutes before midnight on March 31 1949, by letters patent the British government restored full self-governing status and full dominion status to Newfoundland so that we would carry into this nation our sovereignty intact, thereby ensuring that Newfoundland would carry with her these just claims which we now make.
We now know that the continental shelf of Newfoundland, particularly the area of the Grand Banks, contains vast amounts of natural gas and oil. We believe that as a province we must control the rate of development of this important energy resource in order to maximize the economic benefits to our province and, equally, to protect our vital and important fishery resource, which will continue to be the mainstay of our economy, and of course equally to protect our culture and our distinct society and distinct way of life from the economic pressures which would flow from such a development.
We believe that these tremendous oil and gas reserves will give us, for the first time in our history as a province of Canada, a chance to be equal, the same equality enjoyed by the other provinces, an opportunity to create our wealth, a chance to stand on our own feet and, above all, an opportunity to pay back to the nation the tremendous sums of money which have been paid out to us over the past 30 years in the form of equalization and regional development grants. All we ask is an opportunity to contribute to the wealth of the nation while at the same time improving our own economy and giving our people an opportunity to stand on their own feet.
In the words of the premier of our province, “We are an old and a proud people: all we need is an equal chance to prosper”. We can have that equal chance if this government would only recognize what we feel is rightly ours, namely, our ownership of the resources of our vast continental shelf, the continental shelf which we brought into Canada when we became a partner in confederation in 1949.
Unfortunately, our claim to offshore oil and gas has been presented to the nation as a greedy and self-serving claim to something which is not rightfully ours. The fact is that if this government were to recognize that jurisdiction, we would not only be able to stand on our own feet economically but we would also be able to contribute substantially to the wealth of this nation by virtue of the tax revenues that the federal government would enjoy as a consequence of such a development and, of course, the royalties that would flow to the developing companies. We would not get it all, nor indeed would we want to get it all, but we do feel we are entitled to
our fair share and we feel we are entitled to control the rate of development of that which is rightfully ours.
Now, Mr. Speaker, I want to turn, in the few moments I have left, to another area of resource development which touches the heart of the constitutional debate, and that is the vast hydroelectric power potential, both developed and undeveloped, in my province. We have the largest untapped hydroelectric resource in the nation. The mighty Churchill Falls has been harnessed, and of course, as the House knows, Newfoundland is already locked into a 65-year contract with Quebec whereby Quebec is able to enjoy tremendous advantages as a consequence of a contract which was made well before the energy crisis could be foreseen. By the terms of that agreement, Newfoundland’s loss in terms of the present day price of electric power is approaching $1 billion annually. That loss, of course, is Quebec’s gain and enables that province to export substantial amounts of power at world prices to the United States. It is interesting to note that the Newfoundland government has formally requested the intervention of the Government of Canada with regard to the export of this surplus energy which is going into Quebec from Newfoundland. But that is a matter ultimately for the courts to decide because the Government of Canada has refused to intervene.
The inequity of this situation creates the paradox of a province, which is one of the greatest producers of hydro-electric power in the nation, and indeed in the world, having to impose on its people domestic energy costs which are more related to those of thermal fuel. For example, the city which I represent. St. John’s in Newfoundland, the oldest city in the land, has the second highest domestic energy costs in Canada, second only to Charlottetown, Prince Edward Island. Paradoxically, the city which has the lowest domestic electric energy costs in Canada is the city of Montreal. For example, a monthly electric bill, on the basis of 500 kilowatt hours, in St. John’s would cost $27.10. in Montreal the same power costs $16. I seriously question whether the nation can continue to accept within its federal structure such injustice and inequity. However, that is not the question I want to raise; it is one for the courts to decide.
Then we have the question of the undeveloped resources of the lower Churchill. the Gull Island site with the potential of 1700 megawatts, and the Muskrat Falls site with another 600 megawatt potential. The cost of these developments. of course, is staggering. It is $4.3 billion and $3.2 billion respectively. But they give you some idea of the scope of this tremendous renewable energy resource. lf one were to translate it into oil, it would amount to 55 million barrels annually for the Churchill Falls development at present world prices, 19 million barrels annually for the Gull Island development at present world prices, and 7 million barrels annually for the Muskrat Falls development.
Forgetting for a moment our contractual problems with the province of Quebec with regard to the Churchill Falls power development, my province—and this is the main thrust of my argument—has been frustrated in every attempt at the development of the lower Churchill by the province of Quebec, which insists on taking all the power at the border point at their predetermined prices and disposing of it as they will.
Notwithstanding the infinite patience of the Newfoundland government and the Newfoundland people in trying to reach an agreement with Quebec, the fact is that these negotiations have broken off irreconcilably and we now find ourselves in the position of having to come on our knees to the federal government to ask for our constitutional rights, to ask for rights which are ours under the existing constitution, to give us a corridor to transmit that power through Quebec to customers in Ontario and New York, just as the federal government does, which has the same constitutional power to provide corridors in the building of pipelines to transmit western gas and oil to the markets of Quebec. It is simple justice and simple equality.
My colleague, the honourable member for St. John’s West (Mr. Crosbie), and I did not press this point, and indeed the Newfoundland government did not press it during the period leading up to the Quebec referendum, for very obvious reasons. But on June 20 I asked the Prime Minister in the House if the government was prepared to recognize the constitutional right of the province of Newfoundland to transmit its hydro power through Quebec, just as the western provinces have that right with natural gas and oil. The Prime Minister answered:
That is the constitutional doctrine in which I have always believed.
I then asked the Prime Minister why he had not acted on the formal request from the Newfoundland government to provide for a corridor through Quebec for the transmission of Newfoundland power to customers in New York and Ontario, and the Prime Minister replied, as reported at page 2316 of Hansard of June 20:
—such action would only be possible if Newfoundland had the contract for the sale of its power to some other part of the country, and if Quebec were imposing unreasonable charges in the transfer of that power in the sense that it would constitute some kind of tariff or barrier which would be constitutionally inadmissible.
I find it passing strange that no such conditions were placed on the transmission of western oil and gas, and the pipeline is being built to bring those resources to Montreal and Quebec, and rightly so because the Government of Canada has the clearly defined constitutional authority under section 92(10)(a) of the BNA Act and under other relevant sections as well.
On September 4 and again on September 24, the Premier of Newfoundland wrote to the Prime Minister asking the federal government to exercise that constitutional power on Newfoundland’s behalf. ln his letter of September 24, the premier stated that such an agreement had been signed with the power authority of the state of New York to buy surplus Newfoundland power. The Prime Minister has so far failed to reply to the Newfoundland government, and I consider this to be a shameful abdication of the federal government’s constitutional responsibility to my province.
Some hon. Members: Hear, hear!
Mr. McGrath: The Prime Minister now comes before the House and asks me, as a Newfoundland member of Parliament, to support a measure which would provide for a new constitution for Canada, while at the same time he denies to my province the basic fundamental constitutional rights which are clearly ours under the constitution.
Sure, Mr. Speaker. I am concerned with basic human and democratic rights. I am concerned with the entrenchment of language rights and equality for all our people regardless of whether they are French-speaking or English-speaking. I am concerned as one who comes from an area of high unemployment where the per capita income is still well below the national average. Sure I want equalization entrenched in the constitution, but I say to the House, and I say through you, Mr. Speaker, to the Prime Minister, that I cannot in all conscience support any constitutional renewal regardless of whether it was acceptable, or regardless of how commendable, so long as this government fails to fulfil to my province its solemn contractual obligation under the existing constitution.
Some hon. Members: Hear, hear!
Mr. McGrath: Sure. I would like to have the luxury of supporting the mobility rights of the constitution. Who could be against the free movement of Canadians in this country? I come from a province which has an unemployment rate which hovers between 15 per cent and 30 per cent—a national disgrace on the fabric of this nation. Our people are not trained. We have the highest out migration rate in the country. We are trying to train our people. They want to stay home and we want to keep them home. We now have the possibility of developing our offshore oil and gas. What do we do? Do we open up these jobs to people who have the industrial experience in other parts of the country and who have the luxury of mobility to come down and take these jobs away from the young Newfoundlanders who have not had the luxury of that mobility and of that training?
I say, sir, that I want a country where my children can move about freely, but I also want a province where there can be equality of opportunity. There cannot be equality if a man is faced with the choice of hiring an experienced rigger from Alberta against an inexperienced rigger from Newfoundland. Once we get the experience, if all things are equal, I would be prepared to put our people on an equal footing with everybody else, but so long as we have our young people unemployed, so long as we have a 30 per cent rate of unemployment, as long as these things plague us, how can you expect me as a Newfoundlander to stand in the House and support mobility? It is not a new concept. This very government has a policy which provides that only native people will be hired north of the 60th parallel on the pipeline. Every municipality has a policy which says that you will hire all your own ratepayers first, and every province has that policy. All we want is the same principle.
I am one who became a citizen of this country by an act of this Parliament in 1949. I want to build in this country a climate of opportunity and freedom for my children. I take second place to nobody. I was denied these opportunities, indeed I was denied these basic freedoms. I had no say when my constitution was suspended in my country, and now I am asked to support what I find personally abhorrent, a measure that would ask that very colonial power to pass human rights and linguistic measures which rightfully belong on the floor of this Parliament and nowhere else. I find that personally repugnant.
Some hon. Members: Hear, hear!
Mr. McGrath: Let no one think for one moment, because I take that position and because my colleagues may take that position, that we are opposed to constitutional renewal and that we are opposed to unilateral patriation. God knows we want our constitution back here. National pride dictates that we have it back here, but that same national pride dictates that our constitution be framed in our own Parliament, in our own legislatures and nowhere else.
Some hon. Members: Hear, hear!
The Acting Speaker (Mr. Blaker): The Chair will recognize the hon. member for Témiscamingue (Mr. Tousignant) on a point of order, but as I did earlier with respect to the hon. member for Burin-St. George’s (Mr. Simmons). I should note that the time for debate accorded to the hon. member for St. John’s East (Mr. McGrath) has now expired and it is only with his consent and with the consent of the House I will permit a question.
Mr. Tousignant: Mr. Speaker, I will put my question to the hon. member in English, but he may need Rolaids after a while. It is easy to discuss and comment on the past, but I should like to know from the hon. member what his position would be now if the government had not implemented the War Measures Act ten years ago and if, for example, Place Ville Marie had been blown up killing 5,000 people.
Some hon. Members: Oh, oh!
Mr. Tousignant: What would be his position? It is easy to comment on this.
Mr. McGrath: Mr. speaker, I doubt if I would serve the cause of this debate well if I were to get into such a hypothetical question or to deal in any substantive way with the question. I mean no disrespect to my hon. friend. I just do not feel this is the time to go into it.
Hon. Jim Fleming (Minister of State, Multiculturalism): Mr. Speaker, I, like all those who have spoken before me in this debate over the last couple of days, express my pleasure and delight at the opportunity of contributing to this very important debate. Indeed I hope in hindsight several months or whatever from now it will be considered an historic debate.
There are several aspects in the proposal the government is putting forward to this House and to the special committee which deserve thorough consideration. I think in total out of
the package of 12 issues brought before the first ministers several weeks ago, the constitutional bill being put forward indeed covers three of those issues. As Minister of State for Multiculturalism vested with the responsibility of exercising and attempting to have my cabinet colleagues and, indeed, Parliament, exercise the principle that Canadians of whatever origin are equal in our country and should be treated equally; also as the minister of state responsible for a division or directorate within the citizenship branch of the Department of the Secretary of State carrying out a number of policies to bring various groups and sections of groups in Canadian society up to a level of fair treatment and a sense of full participation and allowing, through those policies, the retention of culture; especially as a fourth term member of Parliament representing the constituency of York West, a very culturally diverse constituency for which I have great pride: and as an observer throughout the first ministers’ conference several weeks ago, an observer particularly struck by the arguments put forward by several premiers in the area of human rights—I think those arguments were put forward in sincerity and with good will, but were ones with which I fundamentally disagreed—I want to dwell particularly on the proposed charter of rights and freedoms in the time available to me today. I will do that in the context of the contribution of my colleague who spoke before me, the former minister of fisheries in the previous government. With some passion and, I am sure, sincerity, he expressed his view of how we could move in an area like this in Great Britain rather than in this Parliament. The very essence of that argument is the difference between ourselves and the official opposition. Indeed we believe that this Parliament will approve the principle of entrenchment—we hope it will—and that the Parliament of Great Britain will not question the wisdom of this Parliament, and indeed it will be this Parliament that makes that decision.
Some hon. Members: Hear, hear!
Mr. Fleming: For more than half a century people of good will in all parties have tried and failed to put human rights in our constitution. I think all of us on all sides of the House have asked ourselves why in the recent months and years that this debate has gone on. I think one of the two main reasons lies in an observation of Stuart Keate, the well-known west coast publisher. He said:
Canada on any world menu must be considered like a good vichysoisse—cold, part French and difficult to stir.
In the realm of human rights I think the analogy is right on. The subject of human rights does not stir most Canadians. Most Canadians seem to take human rights for granted. As Bertrand Russell said, we have every right in the world until we need them. Only then do we realize that human rights are the stuff of life, our shield against the arbitrary authority of a bureaucrat, a policeman, a magistrate, a school board or a politician; our guarantee of fair treatment in school, office, factory or farm: and that the end of such democracies as Chile and Greece began, as in Hitler’s Germany, with violations of human rights no worse than we have known here in Canada.
The other reason we have failed to act will be plain to all who listened to the federal-provincial talks of last month. The majority of first ministers, fervently led by Premier Lyon, vehemently opposed entrenchment. Listening to the premiers gave me a feeling of déjà vu. Human rights have been debated in this House since confederation. Sir John A. Macdonald and Sir Wilfrid Laurier could probably speak on the subject without notes, and all that would be different would be the examples they would give in their speeches. The well-known historian Macaulay has written the following:
The more we read of the history of the past ages, the more we observe the signs of our own times.
Our debate continues the arguments of Sophocles and Cicero. Saint Thomas Aquinas talked of a natural law superior to man-made law, which man could perceive in the order of the universe. Out of natural law came natural rights, then the ideals of liberty and equality which, of course, throughout history toppled powerful governments in America and France, and the evolution of human rights in nations such as our own.
There are 2,000 years of history written eloquently in blood, and misunderstanding or non-understandings of human rights are still with us today. The issue is not whether human rights should be protected. The premiers are all committed to protection, but they say among other things that we are already well protected by our present constitution, traditions, and federal and provincial bills of rights.
Let us look at what protection we have now. We have the British North America Act, one of the world’s oldest constitutions. It brought to Canada the theory of the sovereignty of Parliament, restrained only by the need of each order of government, federal and provincial, to stay within their allotted jurisdictions. It guarantees sortie political rights, some minority and cultural rights, and it gives us a constitution of law in a context of British tradition.
What this means was vividly illustrated in 1933 when the Supreme Court of Canada tossed out an act by a Social Credit government in Alberta which some members here will remember. The act required all newspapers to reveal their sources of news and to publish, free, information supplied by the government. The BNA Act gives the federal government the power of disallowance. It can veto within one year any law passed by a province, so Alberta’s act was disallowed. When the case came before the Supreme Court, Chief Justice Duff searched the BNA Act to determine if the veto was justified. He found his enlightenment in the preamble, which describes our constitution as being “similar in principle” to Britain’s. The Justice said that meant a freely elected Parliament, and that in turn depended on freedom of speech and a free press.
But some experts doubt that this rather creative interpretation of three little words is enough to stop a province from muzzling the press. The words are in the preamble, not in the operative part of the act. The act sets up a federal form of government, not a unitary form as in the United Kingdom: the
words “similar in principle” may very well not apply, and probably were not intended to.
As for the power of disallowance, it has fallen into disuse. It was not used in 1959 when the government of Newfoundland tangled with two international unions and passed a law against freedom of association. No Quebec statute has been vetoed since 1911, despite gross violations of human rights. To say that the federal government is reluctant to use its veto power is, to say the least, an understatement. As a safeguard of human rights, disallowance proves the precept that power unused does become power abdicated.
Next, we have the 1960 federal bill, Mr. Diefenbaker’s Bill of Rights. It protects our basic rights and freedoms, but as has often been said in this house, despite the efforts of a very distinguished Canadian it is little more than another statute, Unlike a constitutional statute it can be repealed any time by any federal party with the majority. It gives people no protection against provincial violations in areas of provincial jurisdiction.
The Diefenbaker bill gives us, for example, the right to the enjoyment of property. But the Hutterites in Alberta have been restricted by Alberta law from enlarging their agricultural communes. Some judges in previous cases have held that the provinces’ authority over property and civil rights includes civil liberties. If so, our federal bill of rights is no protection. What about provincial bills of rights? All provinces have them. But they also have the power to amend, appeal or get around them, and with this goes the power of discrimination.
For example, the government of Quebec has a freedom of worship act that dates back to l85l. But for most of three decades, the thirties, forties and fifties, the Duplessis government in Quebec persecuted the Christian missionary society known as the Jehovah’s Witnesses. Homes were entered without a warrant, peaceful meetings were broken up, bibles and hymnals illegally seized, women jailed without trial, and hundreds convicted of sedition. When Frank Roncarelli of Montreal, a rich and respected restaurant owner, posted bail for 393 witnesses over a period of two years, premier Duplessis ordered his liquor licence be cancelled. It ruined a family business that catered to distinguished customers like the Barrymores, and forced Roncarelli to take a job as a labourer. It took him 12 years to get back a fraction of what he had lost because he had tried to be helpful and exercise his freedom.
This violation of Quebec’s freedom of worship act was finessed through the Quebec Liquor Commission, which could only be used by permission of Quebec’s attorney general, who happened to be premier Duplessis, through a magistrate who ruled that the Jehovah’s Witnesses were in business and thus required a permit they could not afford, and through a Quebec City bylaw forbidding the distribution of any “book, pamphlet, circular or tract whatever without . . . the written permission of the Chief of Police”.
Not only were the Jehovah’s Witnesses and their sympathizers outlawed, freedom of the press was clearly in police custody. For when the Quebec Superior Court upheld the Quebec City bylaw as “necessary for the protection of good order”, a dissenting judge pointed out that the bylaw could just as easily prevent the distribution of election literature or any city newspaper.
When the Supreme Court of Canada finally overruled the bylaw as infringing on the freedom of worship act, premier Duplessis simply had the act amended. Clearly, nothing but public opinion prevents any provincial government from violating fundamental freedoms. Thus, liberty varies from province to province. More important, there are gaps in the law into which our rights can fall, a grey area between federal and provincial jurisdictions. Indians are frequently victims of this gap. But provinces claim they cannot do anything about it because the federal Indian Act supersedes a provincial bill of rights.
Women, too, have little protection. In the late l96Os, for instance, a policewoman in Sault Ste. Marie sued the Police Commissioner, the Police Association and the city. She claimed she was doing the same work as male policemen and not getting as much pay. The Ontario Supreme Court dismissed her case. In almost every category of work, women doing the same job as men are paid less.
Black and coloured people have little protection under our laws as they exist today. A 1975 York University study found 39 per cent of blacks in Metro Toronto had been barred by colour from buying or renting housing, and 38 per cent had suffered discrimination on the job or in looking for a job.
It is clear only a federal bill of rights entrenched in the constitution would be binding on all levels of government. Nevertheless, Premier Lyon of Manitoba in that much touted speech of several weeks ago argues entrenchment would be “contrary to our traditional and successful parliamentary government”. He claims that since Britain has no constitutional bill of rights. Canada does not need one either. Anyone who says we do, he seems to suggest, is denying the genius of unwritten English common law and tradition. On a sentimental level I appreciate this view, as do members on all sides of the House, but I would not want to have to explain it to our victims of discrimination. As logic, to put it bluntly, it is a non-starter.
The reality is that many basic British freedoms are in writing. I think too many members of this House and Premier Lyon have forgotten that. In the thirteenth century England’s barons found their ancient, unwritten liberties were being destroyed by the sovereign, so they had them written down in the Magna Carta. Then, in the seventeenth century, public opinion once again outgrew the law as practised by England’s rulers, and the law was written down again in the 1689 Bill of Rights. The British have done this again and again, in writing, All Britons are well aware that their rights were bought with the lives of their ancestors. Can anyone imagine Mrs. Thatcher repealing habeas corpus? This and other pillars of freedom have so strong a moral force they are almost as binding in Great Britain as the constitution, as any constitution, and they were, indeed, written in law.
Another misconception is that the British themselves are satisfied with what has been called their miscellaneous, uncol-
lected, undigested mass of statutes, legal decisions and vague understandings. They may not have been dissatisfied before the growth of credit, electronic eavesdropping, and Third World immigration began to change their social mores and practices. Their system worked well when laws were made by Parliament. But now the bulk of all laws, here and in Britain, are made without public debate, and embodied in thousands of regulations that, with the best of intentions, could infringe on people rights. Even in Britain, the bastion of Parliamentary supremacy, the growth of government has coined such phrases as “administrative lawlessness”, and British legal experts are now pointing out that, when unwritten codes are weakened, written codes are required.
My third comment on Premier Lyon’s trust in English common law is that any comparison is irrelevant anyway. Britain is a small country, Canada is huge. Britain has one government. we have ll. Theirs is a unitary state. ours is a federation. They have a strong family structure, a high tolerance of non-conformity, and a population that is still fairly homogenous. We have two official languages, and one-third of our people represent almost all the nations on the globe.
Mr. Lyon contends our system has worked better than that of the United States, where the existing constitution guarantees human rights. I agree that our record on rights is relatively good. But we disenfranchised Asians at the turn of the century in British Columbia, a decision upheld by the Supreme Court, which shows that Canadian citizenship does not guarantee the right to vote. We have denied Chinese in British Columbia the right to work in certain jobs. But it is true we have not systematically oppressed any minority as the southern United States have persecuted blacks. Nor have we had the problem those states have had.
The United States constitution could not disallow racial prejudice, but it was the United States Supreme Court that in 1944 declared the so-called “white primaries” unconstitutional and stopped politicians from making appeals to prejudice. It was a series of decisions by the Supreme Court in the 1940s that laid the foundation for laws giving blacks equal treatment in factories, streetcars, baseball and hotels. It was the United States Supreme Court that in 1954, in a landmark decision, ended segregation in the schools. Without the entrenchment of rights in the American constitution, the black people would be much worse off, and Premier Lyon should think of that.
We have one vivid example, also cited by Premier Lyon at the first ministers’ conference. where racial pressures and responses in both countries were similar. Following Pearl Harbour, in Canada and the United States west coast citizens of Japanese descent were rounded up, dispersed or interned, their homes and businesses confiscated and sold at bargain basement prices. Cars worth a couple of thousand dollars sold for a couple of hundred dollars. The chicken farm and two-storey house of a twice-wounded Canadian World War I veteran sold for $1,492, after which sale expenses and taxes were deducted.
Mr. Crosbie: That is Liberal party history you are reading.
Mr. Fleming: The U.S. Supreme Court failed in this atmosphere of hysteria to uphold the most ordinary rights of citizenship. But after the war the U.S. constitution was invoked to provide compensation for all losses naturally and reasonably arising from the evacuation orders. In Canada there was no compensation unless claimants could prove that the Custodian of Alien Property had acted carelessly, which was never an issue.
In the United States the constitution recognizes an accused’s right to free legal counsel at every stage from arrest to appeal. In Canada free legal aid is probably just as available, but the right to counsel has no such broad protection. The American constitution authorizes the court to see whether or not the accused had a fair hearing. In Canada the court only considers if the warrant of commitment is valid, it does not probe into the heart of the matter. And in such areas as women’s rights, privacy and pollution, the American constitution has been more effective by far than our statutes.
Premier Lyon and Premier Blakeney might declare that it is too effective. Entrenching rights, they say, would put us at the mercy of the judges who would have to interpret what those rights would mean. They it would transfer power from elected representatives to appointed officials who could strike down laws which people feel protect their community values. Premier Lyon asked at the first ministers’ conference. “Does freedom of expression mean we can’t combat pornography?”. And he notes that the constitutional right of Americans to bear arms has hindered U.S. gun control legislation. The right to life has been a part of Canada’s Bill of Rights for 20 years, but the court has yet to interpret it in relation to the death penalty, euthanasia or abortion; it has left that to our legislatures.
The Chief Justice of our Supreme Court, Bora Laskin, has chided writers who have implied, as he said. “That we have some sort of mandate… to overcome what Parliament has prescribed”. Laskin says flatly, “We can’t do that at all”. Our courts do not take power from the people, as the premiers claimed at the conference, and constitutional rights would not give the courts new powers, only new laws. The courts have always decided disputes between citizen and state, and constitutional rights would not change that function. It would not take responsibility from elected representatives, and it would not mean relinquishing democracy. It would merely define the limits of power and thus ensure democracy at a level that it is not ensured at today.
It is, in fact, our governments of elected representatives that have most often infringed on human rights. Those same governments represented by the premiers at the conference should argue that the public wants first to go to government, not to courts. As Premier Lyon says, “We are representative of the people, but we are most representative of the people with the most influence”.
The human rights codes and acts of the provinces all contain clauses that allow a cabinet minister to make exclusions in
protected areas, and no matter how fair a politician tries to be, we are all subject to pressures that at times can distort our views. These pressures are most in evidence when we most need to keep cool. World War I, World War II and the pre-war and post-war communist scares each gave us hundreds of victims of violated rights. The infamous padlock law of Quebec allowed the attorney general to padlock the home of anyone suspected of preaching communism, and the term was undefined because the then attorney general of that province claimed that communism can be felt.
Families were thrown into the street and dispossessed without trial. Trade union offices were raided, civil liberties meetings were blocked. For a time the Montreal Star would not take a paid ad from the CCF. It took 20 years to get that law repealed, while the anti-communist laws of the mid-fifties of the United States, inspired by Senator McCarthy’s demagoguery, were struck down by the Supreme Court in less than half the time.
It is not a matter of how much one dislikes communists. It is always the unpopular who most need civil liberties. Unless we protect minority opinions, we are not protecting any, because majorities are never in any danger. As John Stuart Mill wrote, “Christ was crucified, Socrates condemned, and Galileo imprisoned on the basis of majority opinion”. It is the tyranny of the majority that minorities have to fear, not the tyranny of the judiciary.
The constitutional bill would place minority and individual rights beyond the reach of majority opinion, and beyond the reach of political expediency. Rather than lessen, it would increase legislative responsibility. since the constitution would force us to exercise more care in delegating power to administrators. Premier Lyon has tried to turn the virtue of entrenchment into a defect. Opinions change, as he points out, and new rights emerge—rights for children, homosexuals, the handicapped—and entrenchment would prevent further progress. History gives us no grounds for such fears. It has certainly not prevented the growth of liberty in the United States.
In Canada it was common not all that long ago to refuse to sell property to a Jew. A case was taken to the Supreme Court in 1945. Our time honoured right to do what we want with our property had come in conflict with developing views against discrimination. Mr. Justice MacKay invoked the UN Charter with its principles of human rights to show that such discrimination went against public opinion.
Whenever the precise meaning of a statute is in doubt—and words being what they are, it usually is—our judges, as law professor Frank Scott has noted, prefer the one that interferes least with individual freedom. “Courts,” says Chief Justice Bora Laskin, “necessarily, are creative”. But Premier Blakeney says that the right to go to court is for many people a hollow mockery of liberty, a right only for the rich, that the best way to effect change is to badger and lobby your MP. True. it is cheaper to write to one’s MP than to get a lawyer. But if a law has violated one’s rights, will that action change the law? As Premier Hatfield has stated, “You don’t change laws like that”. When sanctions are absent, rights are imaginary.
On the other hand, entrenching rights could not stop a legislator from going to bat for a constituent. It would not stop a constituent from badgering and lobbying. The constituent would have the best of both worlds. Premier Blakeney at the first ministers’ conference made one final point: true security is not “entrenched rights protected by a court,” he says, “but our country’s, spirit of moderation and tolerance”. He quotes an American judge who wrote, “that a society so riven that the spirit of moderation has gone, no court can save; that a society where that spirit flourishes, no court need save.”
In answer, let me quote another American, a man with sortie experience in civil rights, Dr. Martin Luther King. He said, “Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.” In a country like ours, with so many different racial and ethnic groups, rights that depend on public sentiment alone are far from safe. Recent history confirms that a country which is free is safer than a country which is not.
We need an entrenched bill of rights to underwrite liberty and safety in Canada. We need it so that learning the constitution in school will teach children that indispensable spirit of moderation and tolerance. We need it so that our legislators can measure new laws against it, and so that our bureaucrats know what they can and cannot do. We need an entrenched bill of rights because we have had attacks on East Asians in Toronto, and because in one western province alone we have had recently four crosses burn on the lawns of West Indians and Asians who have come to Canada. We need it so all Canadians in this country will know that we all weigh the same on the moral scale. We it because to become a nation in law we must have an entrenched charter of rights and freedom.
We need that entrenched bill of rights to guarantee in practice what all three political parties in this House endorsed in principle almost ten years ago—the reality of our cultural pluralism, or what many of us call multiculturalism, that each and any of us, no matter our heritage or national origin, no matter our race or religion, we are in Canada all equal.
Mr. Waddell: Mr. Speaker, before the hon. member to my right begins. I wonder, if there is time, whether the minister would permit me to ask him two short questions?
The Acting Speaker (Mr. Ethier): That would require the unanimous consent of the House. Is it agreed?
Some hon. Members: Agreed.
Mr. Waddell: I appreciated the ministers speech, as I always do. May I take it that the minister is not committing the government, but personally would be prepared to consider compensation from the Canadian government to Japanese Canadians? Perhaps some sort of fund for Japanese Canadians
could be provided, if the matter cannot be worked out with individual Japanese Canadians, for those, as the minister quite properly described them, unjust acts that took place during wartime on behalf of the Canadian government in depriving them of their property.
Mr. Fleming: Mr. Speaker, when I rise in the House I rise as a member of the government and I must express myself as a member of the government. As I understand it, there is no policy at this time to do what the hon. member suggests. I have often expressed my personal view, as I did in this speech as the minister, of the terrible events that took place at that time. When I look back at history, at a time when I was not here, at this act which I believe was wrong. I agree with the hon. member. I am not the Minister of Justice and neither am I, as minister or as a member of cabinet, in a position to give any kind of assurance, but I think I have expressed clearly my view of what took place after the war and during the war regarding Japanese Canadians.
Mr. Waddell: Mr. Speaker, I appreciate the minister’s answer and I hope he will take up the matter of compensation for Japanese Canadians with the government.
The minister cited a number of examples of provincial violations of civil liberties such as the padlock law, the press laws in Alberta and others. When one studies civics, history or polities in Canadian schools, examples of provincial violations are given. In light of the recent evidence regarding the War Measures Act to which the minister made reference, is he prepared to say or was he saying that it was wrongfully applied ten years ago? Was that his position?
Mr. Fleming: No, I have not said that. Mr. Speaker, I think we all look back on any event in history that led to the incarceration of people, or the limiting of rights. with some concern. We heard sortie excellent comments on that from the hon. member for St. John’s East (Mr. McGrath). I recall, as a journalist at that time, that with the exception of two members of the NDP, all members of this House voted for the imposition of that act.
An hon. Member: No, they did not.
An hon. Member: No.
Mr. Fleming: I thought that overwhelmingly members on all sides of the House did, but I stand corrected. Overwhelmingly, but not all, an hon. member says.
If the hon. member who asked the question listened to my speech, he will know that I do not think that the position on an entrenched charter of rights or the current situation is absolutely cut and dried. It is still the public will and mood that affects judges as well as it affects legislators. I believe entrenchment of the boundaries within the constitution is a much better protection than simply the will of Parliament at any time.
During the course of my speech I tried to give a number of examples of that and to argue against some of the points made by Premier Lyon. We are human in what we do in this Parliament. We hope that the constitution protects, sometimes, against our weaknesses, with all the good will and good intentions that we have.
Mr. Taylor: Mr. Speaker, I am sure the hon. member does not want to mislead—
The Acting Speaker (Mr. Ethier): Order, please. Is the hon. member rising on a question of privilege?
Mr. Taylor: I have a point of order, Mr. Speaker. I am sure the minister docs not want to mislead the House. He expressed the opinion that Hutterian brethren were suppressed in Alberta. Mr. Speaker, since the election of Premier Lougheed in 1971, Hutterian brethren may buy land like anybody else in the province of Alberta.
Mr. Fleming: Mr. Speaker, the hon. member suggests that I misled the House. My information is that the current statutes provide that no Hutterite colony may acquire land within 40 miles of any other colony and that the land they bought must be less than 6,400 acres and must have been on sale for 90 days. It seems to me that that is discriminatory.
Mr. Taylor: That was thrown out in 1972—per usual the Liberals are ten years behind the times.
The Acting Speaker (Mr. Ethier): Order, please. Perhaps the hon. member and the minister can get together behind the curtain and settle this. The hon. member for Cambridge (Mr. Speyer).
Mr. Chris Speyer (Cambridge): Mr. Speaker, in rising this afternoon to take part in the debate which concerns the fundamental re-examination of our democratic institutions, which concerns the nature of the relationship between the federal government and the provinces, which concerns the rights of individuals, it is difficult for me to find words to convey adequately my sense of apprehension about the changes being proposed by the government.
The resolutions being proposed are pregnant with implications which go to the very root of the social contract which underpins the desire of Canadians to live together.
Today in this country, in the west, there is a legitimate sense of apprehension. There is a sense of resentment, and there is a sense of alienation from central Canada. This is caused, in many ways, by the legitimate perception that central Canada is trying to exclude the influence of the west in terms of our national body, Parliament, and certainly in terms of our federation.
In the last year we had an illustration of this within the province of Quebec which was debated and where there was a decision by way of a referendum, the subject matter of which was the very status of a province within confederation.
Regarding Atlantic Canada today, posited upon foundations of equity, we have heard the demand for offshore resources so eloquently put by my friend from St. John’s East.
In my province, Ontario, there is a genuine concern among people and in government about the effect of high oil prices on our economy and industry. There is apprehension and a sense of concern about whether the rapid growth of industry, which has hitherto taken place in the province, will be arrested as a result of the ability of other provinces to attract the same type of industry.
What we have in this country, in my respectful submission, are tensions and concerns which besiege us and which demand the necessary political compromise and which will allow us to live together in a spirit of national community as one people.
What we are searching for, and what it is imperative that we find, is a process of continual renewal that will enable us to reach a consensus to live together as issues transform themselves from day to day, from year to year, from decade to decade.
The constitution we are seeking to amend is based upon political compromise. What could have seemed more improbable in 1864 than George Brown, in what is now Ontario, crossing the floor of the House and, on the basis of an issue of national federation, making an offer to support the Macdonald-Cartier government? What could have been more improbable than that? What could have been braver than Mr. Cartier accepting such an offer in circumstances where there was such hatred between Canada east and Canada west?
The compromises made at the birth of our country by Sir John A. Macdonald with respect to his preference for a unitary state are well known. He believed in a unitary state, but because of the make-up of the country he saw how necessary it was to have a federal union.
The point I wish to make in the most emphatic way I know, is that this nation was founded on agreement reached voluntarily by the Fathers of Confederation This agreement is the very essence of a democratic constitution with terms to be arrived at by the consent of the parties. It is that consent which makes it enforceable. Without the act of agreement, without an act of consent, and without the voluntary nature of arriving at terms which are acceptable, it is the very denial of freedom which is the hallmark of this country.
The resolution brought forward by the government which an amending formula on our constitution, in the of consent, could have the gravest consequences because it will necessarily increase the divisiveness which exists in the different regions of the country. It is an act which negates the desire to work out the political consensus which is the essence and spirit of confederation. It is of dubious legal validity.
If the Minister of Justice (Mr. Chretien) truly believes that the course of action he is pursuing is the correct one and if it does have constitutionality, then why will he not refer the matter directly to the Supreme Court as expeditiously as possible and put at rest the legitimate concerns of the premiers and of members of this House? Why will he not do that in order to determine its validity?
Mr. Waddell: He thinks the courts are unreliable.
Mr. Speyer: Mr. Speaker, there are a number of areas to which I would like to address my attention. The first is with respect to the charter of rights, which the Minister of State for Multiculturalism (Mr. Fleming) spoke about at great length. There seems to be an innuendo, certainly from the speech given by the Minister of Justice, to which I listened attentively on Monday, that to oppose or to doubt the value of entrenchment of some of these rights is to doubt or to oppose the rights themselves. This is an absolute distortion of the truth. The Minister of Justice in his speeches this summer and in the speeches he has given in the House respecting this matter, has told us about the nobility of the values espoused in the charter of rights. What I think needs assessment in this House and what the public needs to understand are the implications of entrenchment and the implication of special entrenchment of these rights.
Essentially, members of this House and members of the public must come to grips with and must understand that there is going to be a major shift of power from Parliament and from the legislatures to our courts. We must recognize that fact, and we must understand what its implications are.
The Minister of Justice has quite accurately outlined the antecedents of the codification of rights since 1947 with respect to the bill of rights in Saskatchewan. Isle has passed on to the Bill of Rights which Mr. Diefenbaker introduced in 1960, which was accepted by this House, but there is certainly nothing new to this. We know that with the Magna Carta there was the desire of the people of England at that time to have an acknowledgement, to have written down and to have a codification of what rights did exist. That same principle and policy prevailed with respect to the petition of rights in England in 1689. We know what happened in France as the Minister of Regional Economic Expansion (Mr. De Bané) pointed out in his address to this House. We certainly know that it happened in the United States. But, what are the implications of entrenchment and what are the implications of a bill of rights?
Let us just juxtapose the rights which are in the Bill of Rights with those that are in a charter of rights, and let us compare them. Surely there is no difference in the Bill of Rights between freedom of religion and freedom of religion within the charter of rights. There is no rational impact in terms of difference.
The point is what consequences flow as a result of putting them in a charter of rights which do not exist in a bill of rights? It seems to me the question to which members of this House must address themselves is: are we enlarging the rights of citizens by including them in a charter of rights? Or, are we in effect giving better protection to the people of Canada by embracing them in a charter of rights than that which now exists within the Bill of Rights? What are the implications of this?
There is no doubt that many people view the Bill of Rights on one level as a great success because it did codify the essential beliefs which Canadians have. But on another level, and this is something that one probably does not sec except maybe hear front law school professors or in decisions of the court, the Bill of Rights in some ways has not been successful. That is the fault of Parliament, and it was the fault of Parliament at the time it was passed. What members of Parliament did not do was state clearly, as was their duty, what implication follows as a result of a violation of one of those rights, what consequences will flow in circumstances where there has been a denial of some of these rights.
In particular, I would like to address my attention to that question in the context of certain examples. I think it is very important, in terms of the legal consequences that may flow, that before we choose a preference—and that is what we are doing here—we understand exactly what those results are.
Let me give this illustration. Under a charter of rights there can be no doubt, certainly on the basis of the speech which has just been given by the Minister of State for Multiculturalism, nor on the basis of the paper which the Right Hon. Prime Minister (Mr. Trudeau) gave when he was attorney general of Canada in 1966 with respect to codification and a charter of human rights—I have that document, which is public: nor can there be any doubt that they wish an American type of system. What are the ramifications of such, and are they desirable?
First of all, if we had a system in which the primacy is given to the Bill of Rights or to certain legal implications arising from these rights, what happens in circumstances where a man is charged with possession of stolen goods and a police officer makes a technical mistake in a search warrant? A raid occurs with respect to certain premises where, let us say, ten pounds of cocaine are found. The search warrant is defective, the search and seizure are unlawful and, under the charter of rights, because there was an unlawful invasion of rights which we wish to entrench, that man will go free.
What were the circumstances of common law? The circumstances of common law were that even though the search warrant may have been technically invalid, that evidence of finding the cocaine docs not become inadmissible; it does not in any way exonerate the offender. The choice we have to make is do we give Primacy to these types of rights? Do we understand these types of matters? Say, for example, in a case where a man is charged with an offence and gives a voluntary statement acknowledging the commission of the offence but he is not accorded by the police officer at the first reasonable opportunity his right to counsel—should a man be able to walk the streets and to be exonerated in those circumstances because a police officer has neglected to give that warning, which is a person’s constitutional right under the charters of rights?
These are very difficult choices, because there are two rights and there always have been two rights. We have had to balance them. We have had to balance the right of liberty and the expectation that a person’s rights are going to be afforded to him on the one hand, and the right certainly that a guilty man should not necessarily go free because the constable blundered. Those are the choices that we have.
There are certain rights that I expect will be entrenched with respect to questions on freedom of religion and freedom of conscience. It may well be that those rights ought to be entrenched. But there are other rights which are contained in these resolutions which cause me a great deal of alarm. I heard mention made of Premier Lyon. I happened to be in attendance on the day when he gave his exposition of his point of view with respect to it. I was very impressed by the reality and the practicality of the submissions he made at the first ministers’ conference. Let us make no mistake about it, there will be a major shift out of this House and into our courts. It will be the courts that will be deciding social policy. ln this regard, maybe our leading constitutional expert, certainly in the twentieth century, Mr. W. P. Kennedy, in terms of how the British North America Act was interpreted by the courts, said: “Seldom have statesmen more deliberately striven to write their purposes into law, and seldom have they more singularly failed before judicial technique of statute interpretation.”
If we are going to entrench rights, if we are going to entrench legal rights, let us at least have the courage to give the courts a proper sense of direction. Let us tell them within the charter of rights what we expect when there is a violation of those rights. We did not do that adequately in the Bill of Rights, unfortunately. This charter of rights is absolutely silent on the point. Certainly the courts have the right to expect that we will give them a sense of direction. If they are to have judicial review with respect to these matters, do we not have the duty to tell them, to argue among ourselves and to vote on whether they are in the circumstances, for example, legal rights?
Are they to take the primacy of those legal rights and knock out the whole tradition of common law, that evidence which is relevant to the commission of a crime may very well be inadmissible on the ground of a violation of some of these legal rights? These are difficult questions, but they absolutely must be addressed.
Resolutions have been put forward without any discussion so far of the implications. This is dangerous. We must at least say what we expect to come out of these resolutions. I find them totally inadequate in that regard.
When talking about the constitution. I would feel personally remiss if I did not state some expectations that I have with respect to this country and some of my personal feelings, because I believe the policy of this House is motivated by one’s philosophy. I believe there is an historic rhythm to almost everything in life. I believe there will always be times of prosperity and times when we are not so prosperous. For example, when confederation took place, as a result of my reading of the confederation debates I feel that there was a great expectation that the west would not be annexed by the United States, but would grow and be a place of great opportunity for people in Canada.
What happened? In the first 30 years of this century there was absolutely no doubt that that challenge and opportunity were being fulfilled. Then two factors occurred. One was the drought and one was the depression. Time passes on. In the seventies, as a result of historical accident, energy, which previously we had in abundance, became a scarce commodity. The west, which has an abundance of oil, natural gas and energy, again became a place for prospective prosperity.
The design of this country cannot be to alienate a region of it which is entitled to its own sense of determination in order to improve the standard and attain the aspirations it has within confederation. I might make an analogy that I hope the members from Quebec may appreciate and be more sensitive to than other members. In the sixties, governments within Quebec were certainly federally oriented. They knew that there was a revolution occurring. It was called the quiet revolution within Quebec. There had to be some acknowledgment of some type of singular or special status to acknowledge the history of people who live in Quebec. They said we must have this because it is the will of the people within this province.
What did Anglo Canada do? It probably cast a deaf ear. They did not believe what was happening in Quebec in the sixties. We did that to our great detriment, because there is an evolution to things. We came to recognize in the seventies the frustrations of the sixties and what people were saying within Quebec. We were faced with a government that was determined to separate front Canada as a result of our lack of sensitivity.
By parity of reasoning, may I say to this House that the satiric phenomenon is occuring in the west. My great apprehension is that the government is insensitive to a sentiment that is occurring in the west. There is a hardening. I am not a westerner, but I have had the advantage of being in the west on a great number of occasions in the last year, for personal reasons.
I have talked to my colleagues in the west. I believe them when in caucus they talk about the sentiment within their ridings. I believe there is a sense of alienation and resentment. I believe there exists a sentiment that a leader could lead them in the same direction that Rene Levesque led Quebec.
Some hon. Members: Hear, hear!
Mr. Speyer: Does the government, with the majority of seats in this House, have the perception which we lacked in the sixties to stop this in the bud? Does it have the good will? Does it have the humility to be able to talk to western premiers, to understand the sentiments of the west and to react in a sympathetic way to their determination to have within their region a sense of prosperity and a real say about the way in which this federation operates? That is the most important question.
As I said in my opening comments, I am firmly of the opinion that this nation is run on consent. It is run on a voluntary nature. The way in which we enforce the terms of confederation is by the act of consent or agreement. To impose the terms of confederation by acting unilaterally will do nothing except increase the resentment of the people in the west. We do that at our great peril.
I plead with members from Quebec and other members in the government party to try to understand these feelings. In my judgment, we can still negotiate, as Sterling Lyon put it, Why is there the necessity to rush constitutional change? Why must it be done by Christmas time? Why can the Prime Minister not meet and discuss some of these matters which are agitating Canadians?
An hon. Member: Is 53 years not enough?
Mr. Speyer: In those 53 years we did not have the problems in Quebec and the problems that we find in the west. If there is an imposition of terms that are unacceptable, what do you expect the sentiment to be in different parts of the country? I see the Minister of National Revenue (Mr. Rompkey) here. I am not sure what is happening in Newfoundland—
Mr. Crosbie: Neither is he.
Some hon. Members: Hear, hear!
Mr. Speyer: To listen to the arguments which the premier of that province is making on behalf of those people, it is significantly different from what is happening in the west? Those are the questions we must face in this parliamentary debate. The government should have the humility to extend the debate, to see if what they are doing, which is not by consent, certainly not with the consent of the provinces, is legal, because we are a law-abiding nation. There is profound doubt as to the legality of what is happening. What would be the problem with having the Governor General by order in council refer the matter immediately to the Supreme Court?
Apart altogether from the question of whether it is legal or not, there is absolutely no reason to rush into such profound changes in circumstances where we are going to act to the detriment of the community spirit which we all hope exists within Canada.
Mr. Serge Joyal (Parliamentary Secretary to President of the Treasury Board): Mr. Speaker, the debate which began last Monday in the House represents an important period in the political history of our country. In view of its importance and of the interest it holds for the people of Canada and especially the people of Quebec, it the duty of each member to express his views, give his opinions, show his colours and give the reasons why he believes all Canadians should support the proposed resolution. Nobody has the right to remain uncommitted at a time when the rights, freedom and equality
we have fought for over the last 200 years are about to be decided in this House. The most basic and significant reason why we must endorse this bill is that it makes equality between French and English the cornerstone of the Canada of tomorrow. This struggle has been going on for 200 years. It began with the appointment of Jean-Antoine Panet as the first Speaker of the House of Assembly in 1793. This scene, where Francophones chose the first Speaker, after an historical event which gave us a common future with the other founding people, hangs in the National Assembly in Quebec City to remind each and every Quebecker that, so long as this resolution is not passed, the struggle, which began 200 years ago, will continue. In the nineteenth century many other prominent Canadians reminded their fellow citizens of this struggle they would have to continue.
I would like to quote Étienne Parent, one of the great economists of the nineteenth century, who said in 1840, and I quote:
We ask that the English majority which will be in the united legislature treat the French language the same way the French majority which was in the House of Assembly of Lower Canada, under the old constitution, treated the English language.
What French-speaking people have always been claiming is not a particular status, or favours, nor have they made fancy requests; what they are looking for in Canada is essentially and fundamentally equality. This is what they claimed under Louis-Hippolyte Lafontaine in 1845, when the Parliament of Canada was, as it is today, about to send an address to Her Majesty to ask for the recognition of the equality of French and English and to have section 41 of the Union Act repealed. The representations made by Louis-Hippolyte Lafontaine brought about the inclusion in the constitution of 1867 of this article providing that, in our Parliament, English and French will be two languages which will have equal treatment. At that time several people. George Etienne Cartier first among them, thought that those provisions would be sufficient to enable French-speaking people to assume fully their roles and their responsibilities. In 1963, Lester B. Pearson had to take the initiative to create a royal commission to define, and I quote:
—what steps should be taken to develop the Canadian Confederation on the basis of an equal partnership between the two founding races, taking into account—
—and he added at the time—
—the contributions made by the other ethnic groups to the cultural enrichment of Canada—
That is what we are asked to crown today. In was, this Parliament adopted almost unanimously a piece of legislation which crowned all the hopes, that is the Official Languages Act which was passed with the support of all parties in the House. At that time, we all believed that it was the answer to the fears, that it was the hope which was going to bring French-speaking people to assume fully their roles in the Public Service of Canada and to see to it that the public receives in both official languages the services they require from the government of Canada. However, it took a sad story, the story of the Gens de l’air, and nobody in the House forgot it, to demonstrate that this piece of legislation, the Official Languages Act, was not without loopholes, unfortunately.
Is there anyone in this country who does not remember that for a whole week in June, 1976, public opinion had been set on lire against the use of French in air traffic communications? Is there anyone who does not remember that the tribunals had travelled throughout Europe for six months trying to determine the consequences of using French in air communications? Who does not remember the decision rendered by Quebec Superior Court Chief Justice Deschenes stating that the Official Languages Act was fundamental and that nobody, let alone Air Canada, could ignore the equality between French and English? Who does not remember that Justice Louis Marceau reversed that decision in January, 1977. stating that the Minister of Transport had sufficient powers at the time to prohibit the use of French in air communications and that the Official Languages Act could not ensure the equality of french and English?
All those who had believed in the law until then and who had thought that what Parliament had done in 1969 was a dream come true lost hope. ln his Annual Report for 1978, the Commissioner of Official Languages had to urge Parliament to legislate again to give the Official Languages Act judicial priority over all other federal statutes. He had to do so again last spring, and I should like to quote him, so that all my hon. colleagues may realize that, among the various steps we are called upon to take, there is one which is directly in response to this admonition by the Commissioner of Official Languages.
The commissioner insists that the Official Languages Act should have judicial priority over all other federal statutes, in case of conflict between their respective provisions. He insists also that the equality between French and English be enforced, that it should apply to all ministers, directors of Crown corporations and agencies, higher officials, and that no one should be allowed to hide behind these statutes and regulations to forbid the use of either French or English. What the commissioner has asked for, Mr. Speaker, can be found in this bill in sections 25 and 16 of the proposed resolution. So I want my colleagues who freely express their opposition to this resolution in this House to be fully aware that the resolution answers the demands put forth continuously for over 200 years by generation after generation of Francophones, throughout this country and in this Parliament.
If the new constitution is to be successful in the future, it will be due to the fact that it recognizes in a fundamental way the equality of French and English within all institutions that come under the Canadian Parliament.
My colleague the hon. member for Matapedia-Matane and Minister of Regional Economic Expansion (Mr. De Bané) and myself have introduced several private bills in this House in the last three years to bring in these changes. Two years ago the government announced in the Speech from the Throne that they would fulfil these expectations. Today we have the opportunity to take a decision and I ask hon. members from both sides in the House to give due consideration to this aspect of the resolution. I know it is not perfect and I will elaborate on this later in my speech, but I would like hon. members to be fully aware that all Quebeckers who voted No last May did so with the conviction that a new federalism would start with the inclusion in the Canadian constitution of equality of the French and English languages.
And the critics we have heard in the last few days have jumped on this type of bandwagon. Those who have been saying lately that this move does not meet the expectations of a renewed federalism do not know what has been going on in Quebec in the last four years. They do not know that the new constitution must first establish clearly under what conditions and in which context Francophones and Anglophones will have to keep living together in this country.
This does not mean that the provision contained in this proposed resolution will necessarily succeed in allaying all concerns. The Commissioner of Official Languages once again has expressed other concerns regarding the language of work in the civil service. The proposed resolution does not contain any provision to this effect. Yet, in June, I973, this Parliament stated, and I quote:
—civil servants should generally be able to discharge their duties within the Canadian government in the official language of their choice.
The conditions in which such a right can be exercised should of course be qualified. There is no Canadian in this House who does not recognize the special geographic conditions of the country, the regionalisms the special needs of each constituent of our country.
Now that we have the opportunity to solve that problem once and for all, during consideration in committee we will have to ask the commissioner to provide the necessary explanations so that the resolution will finally answer all our expectations.
For several days now, we have heard a number of criticisms about Bill 101 according to which this resolution would undermine Francization efforts in Quebec. During the next few minutes therefore I would like to answer each of those criticisms, because if I were convinced that by passing that resolution we would jeopardize the future of French Quebec. I would be the first to object to it in the House. However, I feel that it is far front endangering the survival and development of French Quebec. The resolution is the specific answer to one of the most harrowing phenomena in Quebec.
First I would like to speak about what is commonly called the Quebec clause of Bill 101. We know that under that legislation Canadians from other provinces who settle down in Quebec must register their child in a French school unless they obtain a certificate proving that they will not remain more than three years in Quebec. The resolution under consideration repeals that clause of Bill 101 and I think that we should be glad about it.
The Premier of Quebec admitted, in 1977 at the time Bill 101 was passed, that that clause made him uneasy. He told us he had misgivings about balkanizing Quebec.
At the Montreal conference in 1978 he was prepared to abolish that clause provided other Canadian provinces reciprocated, that is pledged to guarantee the language rights of Francophones outside Quebec.
Today, we guarantee reciprocity in section 23(2) of the proposed resolution.
Quebec should not come and tell us we are acting against the views it held towards its Canadian partner. When one tries to grasp the extent of the problem, one realizes that the number of people to whom that provision of Bill l0l applies is, all things considered, quite small. ln 1977-78, 915 people got a permit to enrol their children in an English school because they were either members of the armed forces, diplomats, students or researchers or other workers from other Canadian provinces coming to Quebec for a definite period of time.
There were 1,541 in 1978-79 and only 994 in 1979-80. Is that a threat to the cultural security of Francophones in Quebec? We must not kid ourselves or kid the people.
To say that this proposed resolution will allow all immigrants to send their children to English schools is really to misread the proposed resolution. And that fear the Premier of Quebec is sustaining in the consciences and minds of Quebeckers must be denounced. Section 23 says that a citizen of Canada whose mother tongue is French or English has the right to send his children to a minority language school. Specifically it means that an immigrant Australian, American, Spanish, Italian or from any country in the world, coming to Quebec is still going to send his children to French schools. That is what Bill 101 says and section 23(1) does not change that at all. Consequently, it is a falsehood, a mistake and a monumental fraud to say that immigrants to Quebec will be entirely free to send their children to English school.
The proposed resolution is that English-speaking citizens whose mother tongue is English, whether they were born in Canada or became Canadians afterwards, will enjoy the opportunity of enrolling their children in a school of the language of their choice. However, Mr. Speaker, one has to be aware of how far-reaching these changes can be, We should not frighten the people to the point where Quebeckers will be faced with something they will no longer be able to control.
If you consider the statistics with respect to immigration in Quebec particularly since the years 1976, 1977, 1978, you realize that in I976, out of 29.282 immigrants who came to Quebec, 11,991 came from countries where one of the national languages is English. In 1977, there was a big drop and out of 19,000 immigrants who came to Quebec, 5,477 came from English-speaking countries. In l978, there was an even greater decrease and out of 14,000 immigrants who came to Quebec, 3,685 came from English-speaking countries. We are now witnessing a restoration of the balance of English-speaking immigrants coming to Quebec in proportion with the English-speaking population in that province.
Mr. Speaker, may I call it six o’clock and, with your permission, continue tomorrow.
The Acting Speaker (Mr. Ethier): It being 6 p.m., the House stands adjourned until tomorrow at 2 p.m. pursuant to Standing Order 2(1).
At 6 p.m., the House adjourned. without question put, pursuant to Standing Order.