Canada, House of Commons Debates, “Resolution Respecting Constitution Act”, 32nd Parl, 1st Sess (21 April 1981)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 9341-9378.
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COMMONS DEBATES — April 21, 1981
RESOLUTION RESPECTING CONSTITUTION ACT, 1981
The House resumed debate on the motion of Mr. Chrétien,
seconded by Mr. Roberts, for an Address to Her Majesty the
Queen respecting the Constitution of Canada.
And on the amendment of Mr. Epp, seconded by Mr. Baker
(Nepean-Carleton)—That the motion be amended in Schedule
B of the proposed resolution by deleting Clause 46, and by
making all necessary changes to the Schedule consequential
Mr. W. C. Scott (Victoria-Haliburton): Mr. Speaker, I
would like to finish the remarks I started some time ago on
this resolution. I am mindful of the statement of the Prime
Minister (Mr. Trudeau) in Vancouver that if the country splits
up over his constitutional resolution then the country is not
worth saving. What an arrogant, narrow attitude for a Prime
Minister to have.
Before I leave the first schedule and move on to the charter
of rights, I would like to refer to the part of the resolution
which would repeal Section 20 of the British North America
Act. Section 20 reads as follows:
There shall be a Session of the Parliament of Canada once at least in every
Year, so that Twelve Months shall not intervene between the last Sitting of the
Parliament in one Session and its first Sitting in the next Session.
I must ask what the Prime Minister’s purpose is in seeking
to have Section 20 repealed. Why should we give any Prime
Minister, especially the present one, the right to call Parliament into session or not call it into session, as he wishes?
Should the Prime Minister be allowed to run the country
without having to convene Parliament? In theory and in
practice, if Section 20 is repealed, a Prime Minister could run
the country for a year, or even longer, as his private fiefdom,
substituting orders in council for acts of Parliament.
In the second place, I cannot think of one single reason why
anyone would want to wipe this or any other item of Canadian
history off the books. To do so would not serve any useful
purpose or add anything to the sense or purpose of this
document. What it does is point to the sinister purpose behind
the inclusion of this schedule in the resolution and, indeed, the
whole resolution itself.
For the benefit of those members who still feel that they can
vote for this resolution, I would like to read Section 58(2) of
Part VIII of this resolution. Those members who tell their
constituents that they are voting for this bill so that we can
bring home the British North America Act and amend it here
in Canada will have a lot to answer for if this resolution is
approved by the Parliament of the United Kingdom and
imposed on our country. Section 58(2) reads:
The Constitution of Canada includes,
(a) the Canada Act,
(b) the Acts and orders referred to in Schedule I; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).
There can be no doubt as to the meaning of Section 58.
What we are debating here is the new Constitution of Canada,
to replace the BNA Act of 1867 and all its subsequent
amendments. Paragraph (c) clearly states that when the Parliament of Canada makes any amendments to our Constitution, assuming this bill becomes law, such amendments will be
to the Prime Minister’s Constitution and not to the one we
have lived under for the past 114 years.
I would like to voice my objections to some of the specific
items in the resolution, in the unhappy event that it should
become the new Constitution of Canada. Commencing with
the preamble, I would like to address myself to the motion put
forward on behalf of my party by the hon. member for
Provencher (Mr. Epp). I cannot understand how anyone could
object to this motion. It is basic and fundamental to the
founding principles of our nation. Our motion reads:
—Affirming that the Canadian nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the
position of the family in a society of free individuals and free institutions.
In his statement before the joint Senate-House of Commons
committee on the Constitution, the hon. member for Provencher went on to say:
—affirming also that individuals and institutions remain free only when freedom
is founded upon respect for moral and spiritual values and the rule of law.
I have on my desk some of the representations made to me
on this subject by my constituents in Victoria-Haliburton.
These are in response to a newspaper release that I sent out, in
which I noted that the unholy alliance of the Liberals and
NDP in this House rejected our motion. I might add that I
have to date received not one piece of correspondence supporting the Liberal-NDP position, but I have received well over
two thousand responses supporting the position of my party.
I have been a little surprised, but very pleased, that all of
the mail I have received in response to the position I have
taken on the issues of the supremacy of God, abortion, the
right to own and hold property and capital punishment has
supported my stand all the way. I feel that I am representing
the views and convictions of the majority of my people.
On the question of abortion, I reject out of hand any motion
that the expectant mother should be the sole arbiter as to
whether she will or will not abort a foetus. That would be
tantamount to giving pregnant women decision-making powers
that are rightly those of the courts and the medical profession.
I am deeply disturbed as it is by reports that some courts have
ruled that a foetus does not have the status of a person until it
is delivered. I suggest that that is why some people want to
specify in our charter of rights that only persons have rights.
It is an established fact that a foetus is a living thing,
medically, morally and spiritually, and yet, if we are to accept
recent court rulings on the subject, the foetus does not have
any rights until it has been delivered. This raises the very
serious question as to who is to speak for the foetus until it is
delivered. It is we who must answer the question. It is our
responsibility, and we must decide how best to protect the
foetus until it is delivered and becomes a person under the law.
Abortion must not be allowed to become a political football.
It is one of the most serious social and moral issues facing our
society. But it is more than just that; it is a matter of life or
death. I totally reject the concept of abortion on demand. To
me, it is unthinkable. We must not accept abortion as just
another method of birth control. Basic standards of moral
conduct rule out abortion as a means of escaping the consequences of permissive and irresponsible lifestyles.
To return to the statement on Conservative Party policy,
presented to the constitutional committee by my friend, the
hon. member for Provencher, I draw the attention of the
House to page 6 of his statement, wherein he states our policy
with regard to right of ownership of property. This statement
seeks to amend Section 7 of the resolution by substituting the
Everyone has the right of life, liberty, security of the person and the
enjoyment of property and the right not to be deprived thereof except in
accordance with principles of natural justice.
I find it difficult to understand how anyone could quarrel
with this statement of principle, especially in a country where
the right to own and hold property has been a fundamental
right since confederation.
Here again the Liberals and NDP joined forces to oppose
this motion, but I was surprised and pleased some time ago to
hear that the member for Winnipeg North (Mr. Orlikow)
spoke out in support of this motion in his remarks in this
House on the Constitution resolution. On page 8135 of Hansard for Wednesday, March ll, the member for Winnipeg
North quoted from the fifth amendment to the American
constitution. I quote the member as follows:
—no person shall be “deprived of life, liberty or property without due process of
The member for Winnipeg North might have completed the
amendment by adding: “nor shall private property be taken for
public use, without just compensation”.
The point is that the member stated that this provision is in
the resolution that we are debating, and that he supports it. I
am pleased to have his support for the principle of our motion,
but unfortunately the right to own property is not contained in
the government’s version of the resolution. However, I would
like to take the member’s words in Hansard literally and to
hope that he will stand by his guns and insist that this
provision be included in Section 7 of the resolution, as it now
appears in the late Right Hon. John Diefenbaker’s Bill of
I believe that the rule of law and the strict adherence to this
concept offers greater protection than someone’s interpretation
as to what constitutes natural justice. Interpretations can vary,
according to who happens to be sitting on the judge’s bench at
any particular time.
Section 15 of the resolution is too weak and lends itself to
abuse by any future government that might want to bestow
special privileges or special status on particular groups in our
society for political gain or expediency. It would lend itself too
easily to quota systems in hiring and appointing, a form of
discrimination. I am opposed to discrimination in any form, no
matter how it is dressed up in pious rhetoric and legalese.
To stay with that point for just a moment, I would like to
cite an example of what I mean. One of our proposals would
make it unlawful for anyone to discriminate against anyone
else in the workplace, in making accommodation available to
any person, and in other ways that have often been referred to
as selective placement.
Our motion reads as follows:
Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
Now I would like to move to Section 7 of this resolution. As
I mentioned earlier, in the unhappy event that this Constitution is foisted on the Canadian public, Section 7 leaves a lot to
be desired. It is here that we can take the first steps towards
relegating the Prime Minister’s permissive society concept to
the trash heap where it belongs. In fact, it is in Sections 7
through 14 that we would like to lay the groundwork for bona
fide, de facto protection for law-abiding Canadians.
Beginning with Section 7, I must again insist that the
wording of this section falls short of guaranteeing the rights
spelled out in the section. Fundamental justice can mean many
things to many persons, whereas due process of law refers
specifically to the protection of life, liberty and the security of
the person according to established law.
Fundamental justice is a high-sounding phrase, and like just
about everyone else I like the sound of it. But for the purposes
of safeguarding human and civil rights, I must refer to the
precious wording of the law as we have enjoyed it in Canada
through the British common law.
Although the phrase “established by law” appears elsewhere
in the section entitled “legal rights”, I am concerned that the
wording of Section 7 might encourage courts to interpret it to
mean something other than what is intended. I think that this
is just one more example of the sort of escape hatches, or
loopholes, that this government is trying to slip through in this
This concern has been expressed by other members who
have taken part in this debate, namely the concern that our
parliamentary system of government and the British common
law will be replaced by something that the average Canadian
does not even fully understand. There is a deep and legitimate
concern that the role of Parliament and the powers presently
conferred on Parliament will be gradually assumed by the
Supreme Court of Canada.
We are all reasonably familiar with the basic difference
between our constitutional monarchy or parliamentary system
of government, and the republican system in the United
States. The United States system is based on the Roman
triangle, with the executive, legislative and judicial powers at
each of the three corners. The Supreme Court of the United
States has the responsibility of interpreting the U.S. constitution. However, in the final analysis, the voice of the people is
expressed in the House of Representatives; the House of
Representatives has the final voice. The final voice of the
Canadian people is vested in their Parliament, and that voice
and that power must remain here if we are to survive as a
Several months ago when these debates first began, the
concern was expressed that if we follow the government’s
present course with this resolution, the Supreme Court will not
only interpret and rule on law, but will also be allowed to make
laws. In my view, that would subordinate Parliament to the
For over 300 years, Mr. Speaker, the courts and Parliaments
of Canada and the United Kingdom have resisted pressure to
introduce some elements of the United States jurisprudence, in
particular their rules with regard to the types of evidence
allowed to be introduced into criminal trials. As recently as
January of this year the present government attempted to
introduce the U.S. exclusionary evidence rule into the body of
Canadian law. Happily they were forced to back down.
I have with me a letter from the vice-president of the
Ontario Association of Chiefs of Police on the subject of law
enforcement which reads as follows:
Further to our conversation of last night, I am enclosing a copy of a news
release issued by the Canadian Association of Chiefs of Police, January 27th,
At an Executive Meeting held by the Ontario Association of Chiefs of Police
on January 28th, 1981, the news release by the Canadian Association of Chiefs
of Police in reference to the recent amendments to the Charter of Rights and
Freedoms was reviewed.
The members, who represent the entire police community of Ontario. were
unanimous in their decision to support the stand taken by the Chiefs of Police of
the Canadian Association of Chiefs of Police of which we are members.
The fears expressed by our fellow chiefs are not imaginary. You might say we
are confused and wonder why this sort of legislation would be introduced which
would destroy the fine justice system we have in this country today.
Knowing your background and the stand you have taken in issues involving
the safety of the citizens of Canada, I am sure that you would agree that if the
American exclusionary rule, commonly known as the “fruit of the poisoned tree
rule” were introduced in law in the Dominion of Canada, the quality of law
enforcement in this country would degenerate.
We, in law enforcement, and indeed as citizens, are extremely concerned and
solicit your co-operation and support in changing or amending the Charter.
Yours in matters of mutual interest.
J. G. Wales,
Ontario Association of Chiefs of Police.
This matter of law enforcement is causing a lot of concern
not only to the police forces throughout my area but, as stated
in the letter, to the Canadian Association of Chiefs of Police.
Anyone who reads the newspapers and reviews the lenient
sentences imposed today by our courts on hardened criminals
will know that this is not a time for Parliament and the courts
to treat criminals as though they were a privileged class. I have
stated many times in this House and in my riding that more
tears are shed today for the criminals than are shed for the
victims of crime.
This is a time for us to get tough on those members of our
society who scoff at our laws, who prey on innocent, law-abiding citizens and who are presently getting the sympathy that
should be reserved for their victims. I have always been a
proponent of capital punishment and I am more convinced
today than I have ever been that we must reinstate capital
punishment for premeditated murder and for murder resulting
from the commission of other types of crimes.
A few days ago a man was convicted in a local court for the
murder of a Catholic priest. It was a heinous, callous, deliberate murder. The evidence was so conclusive that the murderer
pleaded guilty. And yet, Mr. Speaker, this convicted murderer
was allowed to bargain with the court and received a five-year
prison sentence. Was that justice? No, of course not, It was a
travesty of justice. I was sickened by it.
In my closing remarks I would like to say that I cannot
support this attempt on the part of the government to replace
the British North America Act with this Constitution before
us today. This document does not contain the elements of an
acceptable Constitution, and it contains too many items and
provisions that are unacceptable to the majority of Canadians.
This is evident from coast to coast. Canadians are wondering
what is going to happen to the nation that they have enjoyed in
the past, yet the government persists in going ahead with its
Constitution—or the Prime Minister’s Constitution, as I would
have to call it.
On behalf of mysef I and my constituents in Victoria-Haliburton, I call upon the government to withdraw this
resolution and act upon the Progressive Conservative Party’s
motion which calls for patriation of our Constitution and its
amendment here in Canada.
Mr. Marcel Ostiguy (Parliamentary Secretary to Minister
of Agriculture): Mr. Speaker, it is quite an honour and a
privilege for me to address the House today in this historic
debate. It is a responsibility and a duty for me as a Canadian
and a Quebecer, and finally as the representative of the
constituent of Saint-Hyacinthe-Bagot to take part today in the
building of our nation. Indeed, we have been discussing this
issue in the House for the past six months. I wish to point it
out, Mr. Speaker, because in spite of the fine speeches we have
heard in this House, the debate on the patriation of our
Constitution has sometimes been diluted in an abundance of
electoral and time-serving considerations or has been turned
into a mere exercise of political marketing.
I refer, Mr. Speaker, to the Leader of the Official Opposition who has tried throughout this debate to use the patriation
project to enhance his own image as party leader, while
squandering the valuable time of the House at a cost $300,000
per day out of public funds. I also refer to the eloquent silence
of the Ontario premier who felt that the anglophone vote was
more important than the rights of half a million of Franco-Ontarians. It is essential, however, to keep in mind that
beyond all electoral considerations, beyond the provincial
boundaries and jurisdictions, Canada’s sovereignty and the
basic rights of all Canadians are at stake in this proposed
constitutional reform. It is within that perspective that the
action of this government must be judged and it is within the
same perspective that we must judge the people who downcry
Of course the opposition against the proposed federal constitutional reform cannot be passed over in silence. But as La
Presse editorialist Marcel Adam so rightly put it in an article
published last February 28, and I quote:
It is not enough to awaken public opinion and have it endorse one’s cause. One
must also take constructive initiatives likely to defuse the crisis.
When the Right Hon. Leader of the Official Opposition
crisscrosses Canada, warning people that our country is on the
verge of breaking up, his statements certainly cannot be
described as being “constructive initiatives”. The official
opposition dug in its heels unnecessarily to prolong this debate
which has now been going on for 54 years, and yet that same
party approves the position of the government, if we are to give
any currency to this excerpt from the brief presented last
January by the hon. member for Provencher (Mr. Epp) on
behalf of the Progressive Conservative Party, and I quote:
We are tabling our proposed amendments to the government’s proposed
resolution, knowing full well that the majority of Canadians want the constitution brought back to Canada. Most of them also want that a charter of rights
and freedoms of the people of Canada be enshrined in the constitution.
As I was saying, the official opposition dug in its heels to
prolong the debate, in spite of that statement, so their attitude
can hardly be called a constructive initiative. Finally, Mr.
Speaker, when the Ontario premier categorically refuses to
make Section 133 of the British North American Act applicable to his province, although recent polls published in the
Toronto Star reveal that 52 per cent of Ontario residents
would accept institutional bilingualism, here again we cannot
say that his attitude is constructive. And yet, Mr. Speaker, our
government did not relent in its efforts to break out of that
Having heard the evidence and recommendations of no
fewer than 97 interested groups, having received 1280 briefs,
having held 104 sittings and debated the resolution during 263
hours, the Joint Committee of the Senate and the House of
Commons presented to Parliament a proposed resolution
improved by 82 amendments which in many cases greatly
enhance the situation and the dignity of all Canadians. And so
it is that Parliament today is studying a constitutional proposal
which at long last will free Canada from the final remnant of
the colonial era and proclaim the full sovereignty of the
Canadian people. We now have before Parliament a charter of
rights and freedoms which will guarantee at last the basic
freedoms and the democratic rights of all Canadians everywhere in Canada.
At long last Parliament is considering an amendment formula which henceforth will enable the provinces to have their
say about the changes to be made to our Constitution in the
future. This amendment formula once rallied near unanimity
in Victoria ten years ago and, as my colleague for Hochelaga-Maisonneuve (Mr. Joyal) indicated, it will confirm the partnership status of the provincial governments and grant them
the authority to propose and approve any change which might
affect their powers. This amendment formula will at last
enable us to break free from the constitutional impasse in
which the rule of unanimity has kept us for 54 years. As
recently as last week, Mr. Speaker, I entertained the hope that
the eight dissenting premiers would propose an amending
formula that could form the basis of future negotiations.
Today however, I must confess my great disappointment in
the face of this proposal which I think is a backwards step
compared to all the hard work done by Parliament over these
long months of debate. Not only do the eight opposing
premiers reject the idea of entrenching a charter of rights
applicable to all Canadians into the Constitution, but their
amending formula includes an opting out provision for any
province that is dissatisfied with an amendment. Is that the
way to build a nation? Is that the way to Canadian unity?
An editorial in this weekend’s Citizen summed up the
position of the eight provinces very well. It reads as follows:
A constitution is not a constitution unless it binds the elements of a nation
The unlimited opting out provision, the absence of an equalization guarantee
and the exclusion of a deadlock-breaking mechanism combine to make this
accord not an exercise in nation building, but rather a blueprint for nation
That is where the so-called heroic filibustering by the official opposition in the last few weeks has brought us. That is
the result of the trade-offs to which the Prime Minister agreed
in a last ditch effort to gain provincial agreement for his
proposal. Both the government and the official opposition have
found unacceptable the proposal made by the eight dissenting
premiers. The Minister of Justice (Mr. Chrétien) qualified it
as “incremental sovereignty-association” and in an interview
last week the Leader of the Opposition (Mr. Clark) indicated
his disappointment with the provincial proposal. That is why,
Mr. Speaker, we must stop fooling ourselves with the rule of
unanimity and accept the fact that the time for sterile discussions is over and the time to act is now. Parliament has before
it a proposal for an over-all constitutional reform which I
believe satisfies the aspirations of Quebecers who rejected on
May 20 of last year the nebulous proposal of the P.Q. government. Although they re-elected the same government last
week, these Quebecers forced that party to abandon any
possible move aimed at changing Quebec’s status within the
In this way, Quebecers have clearly shown in my opinion
that they want federalism, renewed federalism which will
provide them and all Canadians with the opportunity to develop fully in this land of plenty that is Canada with guaranteed rights and freedoms. However, even with all the good will
in the world, this proposal could never satisfy all expectations.
It especially does not satisfy the insatiable appetite of the
provincial governments who consider the federal government’s
initiative an attempt at interference with their fields of jurisdiction. Quebec fears encroachment, among other things, in
the area of education. It is important in that regard, Mr.
Speaker, to consider the demographic situation in order to
fully understand the scope of the education related provisions
contained in the proposed resolution. In an interesting demographic study published in La Presse last October 18, Jean
Poulain states, and I quote:
. . . the latest data show that in less than 15 years, over 600,000 Quebecers left
their province to take up residence elsewhere.
This year alone, according to statistics just released by the
Canadian Association of Movers, Quebec ranks first among
the provinces for the number of families moving to other
provinces, with 54,056 people. Mr. Speaker, these 650,000
Quebecers who have moved to other Canadian provinces are
mostly francophones. Every year, they join the hundreds of
thousands of other francophones outside Quebec throughout
the country who have no constitutional guarantee that they
can fulfil themselves in what is nevertheless one of the two
official languages of our country. Mr. Speaker, wherever they
live, these francophones have the right to use their own
language, just as the linguistic rights of the anglophone
minority are respected in Quebec. For this reason and because
the phenomenon of interprovincial migration is now a fact of
life in Canada, I consider fully justified the entrenchment in
our Constitution of the provisions concerning minority language rights and minority language educational rights.
Indeed, if mobility is to characterize our future Canadian
society, it is incumbent on us to entrench immediately in our
Constitution safeguards to ensure the respect of the cultural
and linguistic integrity of both founding peoples of Canada.
However, this responsibility does not belong only to the federal
government. The provincial governments, which have exclusive
jurisdiction in matters of education, must also take their own
responsibilities to attain this object. Section 133 of the British
North America Act already states that Quebec and Manitoba
must provide legislative and legal services to their minorities in
their own language. More recently, Mr. Speaker, in a gesture
of great wisdom and openness of mind, the premier of New
Brunswick also accepted that these provisions apply to his own
province. In fact, his proposal was agreed to unanimously last
week by the legislature of his province.
Today, Mr. Speaker, I must publicly state my deep disappointment at the obstinate refusal of the Ontario government
to follow the example of New Brunswick. Some will say that
extending the provisions of Section 133 to Ontario would only
be a symbolic gesture without any real meaning. In my
opinion, Mr. Speaker, this argument is only a red herring
which does not succeed in hiding an unwillingness which
greatly exceeds the strategic framework of the recent election
campaign in that province. And when it is argued that this
would result in an anti-French backlash in Ontario, I can only
reply that the refusal of the Ontario government is conversely
creating in Quebec an even greater anti-English backlash
which is even more dangerous as it is only promoting the cause
of the independentist separatist movement in Quebec.
Yet the Ontario government has not lacked opportunities to
show its good will. Already in 1969, the Royal Commission on
Bilingualism and Biculturalism recommended that New
Brunswick and Ontario take the initiative in recognizing English and French as official languages and in accepting the
linguistic implications of such recognition. Again, in 1972, the
Special Joint Committee on the Constitution expressed this
wish once again by making it clear that people should be able
to use both official languages in the legislatures and in the
courts. More recently, at the first ministers’ conference last
September, Ontario had another opportunity to show its concern concretely for the 500,000 francophones living in that
As you can see, Mr. Speaker, it is not for lack of opportunities that the Ontario government has not introduced bilingualism on an institutional basis; yet, each time, it failed miserably. Today, Mr. Speaker, I strongly urge my hon. colleagues
from Ontario, as well as hon. members of the official opposition to avail themselves of all possible means at their disposal
to try and persuade the Ontario Premier of the urgency to
enshrine the linguistic rights of the Francophones of his province in our new Constitution. Over half a million of them hope
to see their government move in that direction, while five
million French-speaking Quebecers are monitoring the situation very closely. It is in this sense, Mr. Speaker, that a
commitment from the Ontario government to apply to its
province the provisions of Section 133 would be interpreted as
much more than a token gesture; it would be regarded as a
concrete demonstration of national unity, an irrefutable proof
for all Canadians to see that harmony between our two main
linguistic groups in Canada is more than a worthy goal, a
This proposed Constitution now being debated is to be
regarded as the foundations of the Canadian society of tomorrow, a society based on equity, freedom and tolerance, on the
respect of minorities which make up the Canadian mosaic,
where the basic rights of individuals would be enshrined in a
wholly Canadian Constitution. We must carry through this
great project together, Mr, Speaker, for the sake of our own
generation and of a great many others to follow. We must also
carry it through as an example for all the countries which are
seeking justice and freedom.
I should like to conclude my remarks with this statement
which was made by the Right Hon. Prime Minister (Mr.
Trudeau) in Brandon, Manitoba, on February 4, and I quote:
Our Charter is not only a Canadian accomplishment, it is also a victory for the
It is with this in mind that I have always publicly endorsed
the proposed patriation of our Constitution. Although I am
once more deeply disappointed by the failure of the official
opposition to press the Ontario government into giving official
status to the French language both within its legislative
assembly and its courts, I remain nevertheless firmly supportive of the government’s initiative. This initiative is, in my
opinion, the first step towards a better Canada, Mr. Speaker,
and it is important that we take it together.
Hon. Elmer M. MacKay (Central Nova): Mr. Speaker,
before beginning my remarks in this very important debate, I
want to pay tribute, as others have done, to the members of
both Houses of Parliament who have worked so hard, not only
in the special committee but in other deliberations surrounding
this important matter.
Surely the object of constitutional reform has got to be
unity, to unite Canadians in a renewed, reinvigorated federalism, flourishing under a revised Constitution of which all of us
can be proud. Unfortunately, as the Prime Minister (Mr.
Trudeau) conceded, this debate has in fact divided our country. The reasons, in my opinion, are clear. They are based on
past mistrust of the Prime Minister and his administration and
the obsession that he has demonstrated in the past to push his
own concepts of confederation over and around other partners
in our country.
The early use of closure in this House and the continuing
threat throughout this debate to use it again is a matter that
has caused great resentment in this House of Commons and, I
think, justifiably so. The poet James Russell Lowell once
expressed the feelings of many of us when he described a man
who was willing to sink half his present repute for the freedom
to think. There was more to the effect that this same man, “be
his cause strong or weak, would gladly surrender the rest for
the freedom to speak.”
This is something that is so fundamental to the House of
Commons that it has coloured this debate. I believe there are
many of our colleagues on both sides of the House who are not
going to be able to speak. That is a shame because there were
two explicit promises made to make certain that this situation
in fact would not occur.
Listening to the Prime Minister in the course of his two-hour plus speech, as he twisted and turned for most of his time,
I recalled a verse that I had read once from the Rubaiyat of
Omar Khayyam which I think describes part of this problem.
It goes like this:
Myself when young
Did eagerly frequent,
Doctor and saint, and heard great argument,
About it, and about, but ever more,
Come out by the same door
As in I went.
What a pity our Prime Minister did not act earlier on the
Constitution. He alluded to this when he spoke on March 23.
He said at that time that he had a consensus of provinces in
1971 at the Victoria conference, but that one province held out
for something. The irony of it all was that what that province
of Quebec wanted it got anyway.
Then the Prime Minister said—and no one has checked him
up on this yet, because he has given the impression of single-minded, faithful, dogged determination on constitutional
reform—”I let a few years elapse”. He sure did. He waited
until April 19, 1975, by his own admission, and by then he had
blunted our economic progress and soured our country; and
that is why the whole process of constitutional reform is so
Some hon. Members: Hear, hear!
Mr. MacKay: I agree with the observation “better late than
never”. We could have a more bipartisan and more constructive approach, and could have had in the past if the Prime
Minister had stopped his standard tactics of confrontation, or
as Walter Stewart would say, “the methods of divide and con”,
which, by coincidence, is the first syllable of the Constitution.
However, looking back toward yesterday, if carried to
extremes, can cause one to lose the visions of tomorrow, so it is
not my intention to spend my entire speech rehashing old
events. However, there are reasons for the deterioration in
federal-provincial relations during the past dozen years, and I
want to remind my colleagues in the House that, besides the
ones involved in constitutional reform, these past difficulties
are very relevant in assessing what is happening in our country
today because they affect the present climate and the present
Anyone, for example, reading the current energy policy of
this government would automatically have a sense of déja vu,
as I did when I listened to Donald Macdonald bringing in his
policy on December 6, 1973, which at that time was a very
comprehensive one. It was going to do a lot of things for
Canada. It was going to provide a national market for our
conventional and synthetic oil supported by a pricing mechanism with sufficient incentives to develop our oil industry,
pipelines to be constructed to the eastern part of our country
and an incentive plan for conserving our energy.
The big news at that time was that we would be self-sufficient in energy by 1980 if all went well. Today, seven years
later, there is still no pipeline to eastern Canada, although the
Prime Minister solemnly promised that on January 25 of last
year. There is chaos in the industry and no agreement on
pricing between the government and the producing provinces.
This kind of performance does not help to instil any confidence
in the Canadian people, and it is only one of the many gross
errors of the Prime Minister and his government.
If John Diefenbaker were here today, I could just hear him
say, with every justification: “The same old bunch are at it
Some hon. Members: Hear, hear!
Mr. MacKay: What can Canadians hope and expect from a
government like this as it modifies our Constitution? Will it
and can it widen the scope of our freedoms, making us a
happier, better nation? I have my doubts, since under our
British tradition our Constitution is not the source but the
consequence of a large and varied basket of freedoms which we
already have as part of our heritage. This government cannot
give us rights. We have those rights now. It can attempt to
restrict them, define them or enumerate them, but it has no
business giving the impression to the Canadian people that it
can bestow them. This government wants to keep the residue
of power; that is this government’s ambition. But that is
exactly backwards. The residue of power belongs to the people,
and any country which forgets this does so at its peril.
J. A. Corry, an eminent and able legal scholar at Queen’s
University, put it this way: he said the Constitution—
—is never a guarantee of good government: If the Constitution is a good one, in
the sense of fitting well with the balance of opinions and attitudes in the country,
it makes good government that much easier to achieve. But the main service of a
good Constitution is to put obstacles in the way of bad government.
Does this government’s concept of a Constitution match
Professor Corry’s description? Does it fit well with the balance
of opinions and attitudes in Canada, or will it by the clause
encouraging referenda allow a bad government to spend its
citizens’ tax dollars for propaganda to influence their thinking? This is a very serious and fundamental concern. The
fairness of a government’s approach is absolutely vital if we
are to have referenda as a device to be used in shaping the
future of our country.
Last October the executive secretary of the Canadian Arctic
Resources Committee, a non-profit public interest group,
sounded a warning. He singled out government propaganda on
the issues of energy and the Constitution as containing gross
errors of fact in the advertising campaigns funded by public
moneys. He made the point as well that the federal government is not subject to Section 36 of the Combines Investigation Act which disallows statements which are misleading or
false. He wrote at that time:
Why is it that our democracy has no protection against misleading advertising
by government—no avenue to challenge government propaganda? Several weeks
ago two newspapers closed, zi hue and cry went out from politicians and
journalists about the control of the press by two large chains. Almost immediately, a Royal commission was announced by cabinet.
Let me say as an aside it was to be under that great
non-achiever, Tom Kent.
But which is the greater threat to our freedom, Mr. Speaker,
the closure of a couple of newspapers or the freedom of
government to mislead without any challenge? The hon.
member for Provencher (Mr. Epp), who has done such an
outstanding job during this constitutional debate, had this to
say in the House on February 17, as reported at page 7388 of
But I do not believe that there is any provision in this constitutional proposal
which is more objectionable than the permanent enshrinement of a referendum
to change Canada’s Constitution. This is not just any referendum, it is not asking
the people; it is a referendum which could be held in order to break a so-called
deadlock, a deadlock wholly determined by the federal government. It is a
referendum which will still be controlled by the federal government. It is a
referendum which would be uscd to by-pass the people’s elected representatives
in provincial legislatures. It is a referendum which could be used by a majority to
override the rights of minorities. the very essence which this proposal purports to
When we realize that the government is by far the largest
advertiser in this country, spending about $2.50 per capita for
this purpose, and when we consider that in the United States, a
far richer country, the government ranks about twenty-eighth
in terms of national advertisers, spending about 65 cents per
capital, we can see the enormous importance referendum
advertising provisions have; and this is why I so strongly
support the concept put forward by the hon. member for
Provencher. I would recommend it to other members of this
House. We must have some sort of guarantee to control the
government in this respect.
Many Canadians seem to have temporarily lost their capacity for moral outrage; we are a very complacent people, slow to
anger, slow to become excited about social issues and abuses.
Some of us, however, remain profoundly suspicious about the
motives behind some changes being perpetrated in our country.
The omission of any reference to the Deity and the absence of
property rights do not compliment any Constitution. I trust
members of the House will take cognizance of the amendments
our party has proposed to the Constitution in the House and
will recognize and rectify the mistakes which have been made.
It should be kept in mind as well that there are means other
than the Constitution to change a country or shape its future.
For example, while the government is commanding the attention of the nation with its ham-handed approach to constitutional matters, it is simultaneously dealing a blow to the
destiny of the north and the Atlantic region by appropriating
their hydrocarbon resources in a way that is clumsy, arrogant
and unjust, While the government is whipping up public
concern over the alleged crimes of the petroleum industry, its
alleged overcharging and gouging, it is interesting to me that
our national petroleum company, PetroCan, is not very competitive, or at least does not seem to be, as I do not see it
selling its products for any less than the “seven sisters” in the
oil industry. That is a kind of anomaly. As Peter Brimelow
pointed out recently in his column:
But the real cost to Canada of Otlawa’s socialization of the oil industry is
cultural, not economic. Calgary’s oilmen were an unparalleled area of national
self-confidence. They were making Canada’s prcscnce felt all over the world.
And all by themselves, without legislation, they were beginning to over-shadow
foreign investors by the same natural processes of economics that saw U.S.
entrepreneurs grow past the foreign investors who built the American economy.
Now they seem fated to be sacrificed, like the merchants of the Maritimes, to
a timid, defensive and ultimately mean-spirited centralism.
That is the tragedy of our country. We have not been
allowed to develop uniformly all across this great nation. The
government talks about federalism but practises centralism.
That is what is holding our country back.
There are many other areas apart from constitutional
reform where Canadians have reason to be concerned about
their rights. Let us consider the McDonald commission inquiry
into the RCMP. It is not so much a commission as it is an
annuity. The “E Specials” of the force are today doing what
they always did, some of which is necessary, but still without
any legal definition, and this is four years later. The latest
snag in its procedures I think will find a further interesting
revelation. By its decision on January 27 last, the Supreme
Court of Canada, in the casc of Franz Colet v. Her Majesty
the Queen, officially put to rest the ludicrous proposition
advanced by Commissioner Simmonds that as long as their
intentions were good the RCMP could break and enter with
impunity. The learned judge in that case, Mr. Justice Ritchie,
said very clearly that where police officers were acting without
authority they were trespassers, and he thus reaffirmed the
common law rights of ownership. But this government will not
include the common law rights of ownership in the Constitution, which is a very, very serious omission indeed. I hope this
House will see fit to rectify that omission, as I mentioned
There is another irony. While our national police force is
subjected to a four-year inquisition, has anything been done
about organized crime in this country except from the point of
view of a few CBC programs and a couple of commissions, the
Cliche commission and the Laycraft commission in Alberta,
which touched on some of these matters? Not on your life. We
politicians are investigating our police force and not doing a
thing about organized crime.
In my judgment, constitutional reform is not necessarily any
guarantee of sovereignty. True sovereignty means more than
bringing home a statute, with or without changes. It means
being able to exercise control over our country and defend our
territory. Are we really able, without the help of our neighbour
to the south, to protect ourselves even from hostile reconnaissance by long-range aircraft of the U.S.S.R.? Can we alone
effectively patrol and exercise surveillance over one of the
greatest treasures any nation has ever known, our north?
Obviously we cannot. Who was responsible, as one of his first
acts in becoming Prime Minister, for cutting our NATO
commitment in half, and who is responsible for and has
presided over years and years of allowing our military capability to diminish? Certainly it is not our party or our leader. In
fact, that has been the story of our country. If we do not pay
attention to some of the things which involve meaningful
sovereignty, we may get our Constitution home all right, but
some day we may lose our independence. It is not that simple
to bring home a statute without tending to the very fibre and
the very basis of what a country should be.
Now the Constitution is being touted as a cure-all. In the
midst of our current economic and regional struggles, which
are more acute now than when the Prime Minister was first, or
even more recently, elected, many people are understandably
cynical about taking all this time at this point in our history to
discuss and consider a Constitution which, in the opinions of
many, has never been that much of a problem.
Some measure of past consistency of purpose and solid
achievement in governing would have assisted the Prime Minister to lead and to achieve the trust that is necessary to do
something as fundamental as changing a country’s Constitution. I suppose what I am really saying is that people like to
assess the track record before they place their bets. This
government and this Prime Minister have not had much of a
Even the Prime Minister’s writings before he came into
public life are suspect. Few people to my knowledge have said
or written more derogatory things about the people in public
life in his native province than has our Prime Minister in his
salad days. In an essay, “Some obstacles to democracy in
Quebec,” published in the Canadian Journal of Economics
and Political Science and referred to in the book “Federalism
and the French Canadians”, the Prime Minister referred to the
shameful incompetence of the average Liberal Member of
Parliament from Quebec and said:
The party strategists had but to find an acceptable stable master—Laurier,
Lapointe, St, Laurent—and the trained donkeys sitting in the back benches
could be trusted to behave. Even the choice of from benchers very often smacked
That is despicable. I do not think anyone in this House
believes that, but I wonder if the Prime Minister still holds
those views. I hope not, but let me bring to the attention of my
colleagues in the House a very interesting speech the Prime
Minister gave on May 19, 1967 when he was parliamentary
secretary to the then prime minister. He told a service club in
the federal riding of Mount Royal:
Politicians who spend their time and energy complaining about the Constitution are simply trying to find excuses for not doing as good a job as they should.
Canada’s real problems are not constitutional ones but concern housing shortages, the cost of living and other serious problems.
Mr. Epp: Who said that?
Mr. MacKay: The Prime Minister. We know that in the
meantime the problems about which the Prime Minister spoke
in 1967 have not been solved but have become worse under the
pernicious inertia he has generated in this country. The Prime
Minister went on to say on that same occasion in his riding:
Those who blame the Constitution for their troubles are deluding themselves
in thinking that constitutional changes alone will work some kind of miracle on
Perhaps even then he was speaking with a “hell of a tongue
in cheek”, to quote him again more recently.
Don McGillivray, a very respected columnist, in the January
15 edition of the Montreal Gazette, again referred to the
Prime Minister’s more recent performance in a column entitled “Pierre is 0 for 5 on Promises”. He wrote:
Trudeau said he would head a national government that uses its strength to
realize the aspirations and economic potential of each of our provinces, it would
be a national government that builds up rather than tears down, that would
make the 1980s a decade of opportunity rather than a decade of doubt.
A year later, as Mr. McGillivray points out, the Trudeau
government is almost at war with the provinces. I am not going
to list the other failures Mr. McGillivray listed; they are there
for all to read. But I do want to give the right hon. gentleman
credit-and I mean this sincerely—for finally recognizing that
our Supreme Court should have the opportunity to assess and
to rule on our Constitution. To do otherwise would have been
to deny not only fundamental justice but also to undo in a real
way the historic work done in making our Supreme Court
supreme in law in this country, taking away the umbilical cord
which connected our legal system to the Judicial Committee of
the Privy Council. That was a consistent and good thing to do,
and I respect the Prime Minister for finally recognizing that
The recognition of the rule of law rather than the experience
and expedience of politics has changed, in my view, a great
deal of the atmosphere in the House and the country. That is
one improvement or concession which I think one should not
be afraid to concede. It is something which transcends narrow,
legal interpretation of any Constitution and goes to the soul of
However, there is another matter which I think is very, very
important, and that is that it will be difficult for Canada to be
a unified and developing nation when it is formally divided by
our Constitution into different classes of provinces. Our neighbours to the south once had a great president, Abraham
Lincoln, who at the time he was debating the issue of slavery
said that, while he did not expect a nation divided would stand,
he did not expect the union to fall either. He thought it would
be one thing or the other, all slave or all free.
How can eight provinces in Canada feel that they have the
dignity and status of full participation in a Canadian federas
tion when they are formally subordinate to the Quebec-Ontario axis? I think hon. members will agree that it will be
rather difficult and demeaning. Certainly it is not necessary. It
is the perpetuation of existing bureaucratic and Liberal government thinking which pays lip service to federalism, as I said
before, but really practises centralism. A good rallying cry for
Canadians who are fed up, particularly those in the regions of
the east and west, would be “federalism, yes; centralism,
If we are to have any hope of changing our inequitable and
flawed approach to true regional equality, Members of Parliament from Ontario and Quebec must be willing to abandon
party lines and vote according to their consciences with a
generosity of outlook which will accept the concept of each
Canadian province as an equal in terms of status when it
comes to voting on those issues affecting our nation’s destiny
in amending our Constitution. To give any province a veto will
never work. Even in the United Nations there are not two
classes of member states when it comes to voting in the
General Assembly. And surely in Canada we do not want to
create the equivalent of a Security Council to which only two
provinces can belong.
Speaking about regional interests, I have been very disappointed in the behaviour of members of the Senate so far, with
a few notable exceptions, some of whom have transcended
party doctrines. Most hon. senators have done very little to
stand up for our regions. This body was designed to protect the
provinces and to be the institution of sober second thought, but
so far, because of a discipline imposed by the government, the
Senate is proceeding in lock-step with the House of Commons,
not even waiting until matters are concluded by elected
Some senators from other parts of the country, but particularly, from my point of view, from the Atlantic region, have
spoken out; and I want to emphasize again how it was that our
former advantageous trading position and independence of
spirit was the first casualty of confederation. Our offshore
resources are a recent casualty of so-called renewed federalism. Even the transportation imperatives which were once a
part of the British North America Act have been allowed to
Let me speak specifically about the former Section 145 of
the British North America Act dealing with the inter-colonial
railway, which was a very vital ingredient of confederation.
That section, which provided an obligation to maintain a
satisfactory railway system in the eastern part of our country,
has now been deleted. I would like to put this section on the
record but time does not permit. The present policy of the
Minister of Transport (Mr. Pepin) is to downgrade, close and
bypass the rail system in eastern Canada and to ship vast
amounts of goods and services directly by water from Quebec
Would Nova Scotia or Newfoundland join confederation
today? The answer is not all that clear; but changing the rules
in the middle of the game is not an honourable thing to do,
unless one has at least the consent of the majority of the
players. This is what the federal government is doing.
I suppose it is fair to say that where one stands on an issue
depends upon where one sits. I stand for fair treatment for my
region. In so doing, I know it means fair treatment for the west
and that ultimately it will be for the good of the country. If the
diverse parts of the country which have the drive and the
resources are not kept subservient by the votes and the money
in the centre of the country, ultimately we will all be better
When John Diefenbaker talked about one Canada, he did
not mean one Canada with an Orwellian creed—that all
provinces are equal but some provinces are more equal than
others. All of us in the chamber at various times have talked
with great pride about our country: its magnificence, its size,
its diversity, the warmth and variety of its societies, and the
talents of the people enclosed within its borders. Often we
speak about its wonderful potential. Often we use the rhetoric
of a great Liberal prime minister who made the celebrated
prediction that the twentieth century belongs to Canada. But
potential can be lost. Athletes, poets and even countries have
had their potentials set back if they lack proper training,
proper opportunities and, in the case of a country, proper
leadership. Some countries have had their futures affected by
war and depression, some by egocentric or careless leaders.
I think of Argentina which in the early part of this century
had the same potential as Canada. Indeed today it is making
progress because of the competitive excellence of its people in
many fields of endeavour. I mention Argentina as an example
because it is a large, beautiful country; a confederation with 22
provinces and a federal district. It is a country much like ours,
with about the same population and many other traits in
common, including the production of vast amounts of wheat
and the raising of cattle. They have their pampas; we have our
prairies. We claim interest in the Arctic; they claim interest in
the Antarctic. Generally they are of European stock. They are
still having a great deal of trouble with inflation, but I have
been told by prominent Argentinians that one of the main
reasons for their setback was that their politicians let them
down. I hate to see our country fractured and failing to realize
its potential because our politicians let down Canada. I do not
want to have to say in the future or to hear anyone else say, for
example: “What Juan Peron did to Argentina, Pierre Trudeau
did to Canada”.
My main concern is that we not subordinate parts of our
country, not destroy the feeling of equality between the partners of confederation. If in its so-called wisdom the federal
government wants to codify more rights, or wants to bring in
other changes to see how they operate, then with some difficulty in the future, if these measures are not satisfactory, they
can be changed. But if we give the centre of our country a
different and superior status to the rest, how will we ever
change it. It will be very difficult and may destroy us one way
or another, because although we are proud Canadians, welhave
a strong attachment and loyalty to our provinces.
Surely Ontario and Quebec are confident enough and secure
enough, in the leading role they play by virtue of their present
size, economic strength and geographic location, that they
would not want to set their status in stone, to formalize by
statute this condition in such a way that other provinces will
always be subject to their veto. There will be, to use again
United Nations phraseology, a sort of security council built
into our country.
However, I want to emphasize it is not fair to lay all the
blame for our constitutional impasse on the federal government. As partners in the existing arrangements, the provinces
have not been able to formulate or agree upon a plan which
has consistency of purpose and generosity of approach.
Our most populous province, Ontario, seems willing to
support the federal position for reasons related in part to
language, while Quebec, our largest province, is opposed to the
position of the federal government for the same reason. If I am
right, it is a very shabby approach for both to take, based on
political and cynical, short-term self-interest to win elections
rather than stemming from any patriotic or idealistic motives.
Premier Davis, in return for a less zealous approach by the
federal government toward bilingualism, although perhaps he
has other reasons as well, supports the Prime Minister. I
suspect Premier Levesque is opposed because he does not want
any constitutional initiatives to interfere with his own language
policy in Quebec. As well, it suits his nationalistic purposes to
point to the constitutional issue, if it in not resolved, as a
symbol of colonial status.
In the meantime, 800,000 francophones in Ontario see that
their access to French language facilities is a privilege and not
a right. Twice that many people, at least 1,800,000 non-French-speaking citizens in the province of Quebec, are similarly partly denied access to their language because of Premier
Lévesque’s deliberate actions in this respect. I must say that
non-English speaking Quebecers may have more rights than
Franco-Ontarians. As we all know, this is a very, very bad
What this really means is that probably as many as 2.5
million people in Ontario and Quebec are placed in a very
aggravating position. This is happening because their rights
are being sacrificed on the altar of short-term political expediency. This is not very heady stuff from which to build a
constitution, and it is a poor reflection of any definition of the
just society about which we used to hear so much.
I see Mr. Speaker is signalling that my time is just about up,
but may I say in conclusion that the provinces have been less
than generous in matters of language in the past. They have
become increasingly protective and chauvinistic about other
matters as well. A good example is the restricting of employment or of mobility rights, which is spreading like a disease
across the country.
I do not understand why we have to involve the United
Kingdom, to the extent we are, in our constitutional problems.
I do not understand why we have dissipated so much of our
badly needed energy focusing on a difficult and complex
package when we could have merely brought the Constitution
home and dealt with it in a mature manner in our own
country. It is obvious to the world that we Canadians lack
something when we are not mature enough to fight our own
battles and make constitutional amendments in our own
The Premier of our smallest province, where our nation-building first began, Angus MacLean, summed up the matter
very well when he appeared before the Special Joint Committee on the Constitution on November 27, 1980. At that time he
We are incapable of understanding, Mr. Chairman, the logic of an argument
that purports to remove the last vestiges of 55 years of colonialism by returning
us to a status we have not known for 113 years.
We are not impressed by the logic of a federal government that purports to be
terribly embarrassed about going to London for constitutional amendments, and
yet deliberately seeks from London the most fundamental changes ever to be
made to our Constitution—
I have not seen any analysis better than that.
Mr. Ron Irwin (Parliamentary Secretary to Minister of
Justice and Minister of State for Social Development): Mr.
Speaker, it is indeed a privilege to enter into the constitutional
debate at this time. The hon. member for Central Nova (Mr.
MacKay) referred to former Prime Minister John Diefenbaker. It is at the point where he ended that I would like to
As one follows John Diefenbaker’s quest for a bill of rights,
it is surprising how often he spoke about the need for a bill of
rights before it was actually implemented. On May 16, 1947,
he said in the House:
—it would assert the right of a minority to be protected, in the exercise of its
rights, against the majority.
On March 24, 1952 he spoke about the protection Canadians needed because of race, religion and colour discrimination.
On May 2, 1946 he moved an amendment to the Canadian
Citizenship Act to have a bill of rights included in its provisions. He wanted freedom of religion and speech, peaceful
assembly and habeas corpus. On April 12, 1948, he spoke
again. On June 10, 1948, two months later, he spoke once
more at Winnipeg. He pleaded for protection against discrimination because of colour or race. On October 29, 1949, he
placed a private member’s resolution on the order paper which
asked for a declaration of human rights with fundamental
freedoms of religion, of speech and of the-press. Every year in
opposition he put a private member’s resolution on the order
paper calling for a Canadian bill of rights.
When the Bill of Rights was finally passed, he was quite
proud, as he had every right to be. But with it came major
disappointments. He knew that it did not bind the provinces;
he soon found out that it hardly bound the federal government.
He suffered through years of judicial interpretations while his
bill was held to be not relevant by the courts, with rare
exceptions, such as the Drybones case. He said:
The courts, while never denying the constitutional significance of the Bill of
Rights, had shied away from it in their judgments, sometimes indulging in
juridical acrobatics to avoid having to deal with it.
He knew that to give a bill of rights full force and effect
would mean a constitutional amendment. The opposition say
we should go back to the provinces. What did Prime Minister
Diefenbaker say? He said:
My experience with the provincial governments indicated that they were too
jealous of their jurisdiction over property and civil rights to support any
amendment applicable to themselves. I have little hope that their attitude will be
altered in years ahead.
Having witnessed last week’s events, what Prime Minister
Diefenbaker said was a prophecy of what was to come. He was
Some members of the opposition say there is no need for a
charter of rights, that we are protected by the common law.
This is what Prime Minister Diefenbaker said in this regard:
Some sa that it is unnecessary and our unwritten constitutional rights protect
us. They have not in the past. They cannot unless you and I have a right to the
protection of law in the courts of the land.
In this debate the hon. member for Edmonton West (Mr.
Lambert) said that Parliament is a trustee of the provinces’
rights. He is probably right, but I find it ironical that he would
use the word “trustee” in that way. Prime Minister Diefenbaker used it in a different way. He said:
Without a bill of rights, having regard to the experience of recent history, that
heritage of which we are trustees will not be passed along to those who come
In the final analysis, his Bill of Rights did not stand up as he
would have wanted it to. Only on rare occasions did it bind any
government. But in his quest to protect the rights of individuals Prime Minister Diefenbaker was right. We, as parliamentarians, must protect the citizenry from discrimination. There
must be certain freedoms that are common to all Canadians.
As Prime Minister Diefenbaker said in 1948, there cannot be
nine kinds of citizenship in this country. He said that the
introduction of a Canadian bill of rights was just one step in a
long journey, but that it was a major step forward. I say to this
House, let us continue that journey. Let us freely admit that
without men like Prime Minister Diefenbaker, and without the
men who came before him—the idea did not originate with
that prime minister—we would not be taking this step today.
I do not think we should tarry any longer. It has taken us
seven months to get this far. Let us enshrine in the Constitution those rights, those ideas, those common decencies which
Prime Minister Mackenzie King once said “free men have
cherished.” Let us say no more that there is a provincial
freedom of speech and a federal freedom of speech. There is
only one freedom of speech—a Canadian freedom of speech.
Let us say no more that there is a provincial mobility right or a
federal one; let us say only that there is a Canadian mobility
right. Let us take all the rights contained in the Constitution
and not separate them by provincial boundaries. Then and
only then can we say that we acted in the interests of Canada
and of Canadians as a whole.
The official opposition, and now the Premiers, studiously
stay away from the charter of rights. Spokesman after spokesman from the Conservative Party has talked about process—substance is avoided. The Right Hon. Leader of the Opposition (Mr. Clark) said:
The aftermath of the adoption of this resolution will have us looking around at
the breaking of our federation and, perhaps, at the breaking of our nation itself.
He went on to say:
Our Constitution has been madea source of Canadian shame and division.
Finally, he said:
If public opinion wanted a charter of rights as strongly as this government
says it does, then public Opinion would made itself felt.
As a member of the joint committee I listened to public
opinion for almost three months as witness after witness came
before it. I would like to quote a few of those witnesses. Mr,
Gordon Fairweather, the chief commissioner of the Canadian
Human Rights Commission, said this:
Our thesis is that the charter of rights and freedoms are there to protect the
weak against the strong. to protect those who have no power from those who
have . . .
Will protecting the weak from the strong be a source of
Canadian shame? I say, “Hardly!” Doctor Carole Christinson
of the Afro-Asian Foundation of Canada asked that a charter
of human rights be entrenched in a patriated Constitution. The
Canadian Bar Association presented a brief stating that they
wanted an enshrined charter of rights and that they had been
asking for it for many years. We have listened to the public
and we intend to entrench a charter of rights. I suggest that
this charter of rights will not be a source of Canadian shame
but rather a shield to protect the ordinary man on the street
from legislative oppression and discrimination. It will not be a
source of shame, it will be a source of Canadian pride.
I would like to talk about specific rights. Firstly, equalization, which is the concept of sharing between provinces. Mr.
Graeme Haig of the Canadian Chamber of Commerce came
before the committee. This is what he said about equalization:
The chamber’s view is that the system of transfer payments must be
This is what Mr. Haig said about mobility on behalf of the
Canadian Chamber of Commerce:
The business of hiring preference from one province within a province to the
exclusion of residents of other provinces is to us abhorrent.
This government agrees with Mr. Haig’s statement. The
support of the Chamber of Commerce on these two items
conforms to our concept of Canada. It affirms that one cannot
be a Canadian without sharing. It confirms that the individuals under a constitution should be able to work anywhere in
Canada notwithstanding residence. This government intends to
vote for these rights in this charter. If there is shame, I say
shame on the opposition for not voting with us.
Then there was the matter of non-discrimination because of
race. Mr. Art Shimizu of the National Association of Japanese
Canadians came before the committee. Some members of the
committee tried to show that even though there was a bill of
rights in the United States it did not help the Japanese
Americans during and after the war. Mr. Shimizu said that
because of an enshrined bill of rights—
—the Japanese Americans were able to return to their homes a full nine months
prior to the termination of the Pacific war, while the Canadian Japanese
languished in the internment camps and were being deported, sent back to Japan
most likely and dispersed, for almost four full years after the unconditional
surrender of Japan when the presumed reasons for their confinement hnd
We have included that protection in Section 15 and we
intend to vote for it. We have included many basic rights in
this Constitution which we intend to vote for. The official
opposition can beat their chests and talk about process, insult
this party and the leader of it, but in the final analysis what
they will be voting for is against the enshrined rights of the
I would now like to deal with the pleas which were made on
behalf of the handicapped. In our original draft of the resolution rights of the handicapped were not included. Mr. Gordon
Fairweather of the Canadian Human Rights Commission, who
came before the joint committe, said this:
The list of grounds presented in that section is incomplete. In particular, no
promise of equality under the law is made to the disabled.
Mr. Clarke Macdonald of the United Church of Canada
said that the rights of the physically and mentally disabled
should also be stated. Mr. David Vickers of the Canadian
Association for the Mentally Retarded said:
Our plea to you is not a plea for special rights. Our plea as advocates of people
with a handicap is that they too will be afforded the full opportunity that
attaches to their Canadian citizenship; in short, a plea that they will not be
forgotten in the new bill of rights so that they may become Canadians first and
There was one young man who had a very profound effect
on myself. That man was Ron Kanary of the Coalition of
Provincial Organizations for the Handicapped. He came in a
wheelchair to my office. He spoke quietly. He had appeared
before the special parliamentary committee on the disabled
and the handicapped and he also appeared before the joint
We are looking for the Constitution to set a tone so that changes may come
about, not overnight but over a period of years, that we can become fully
integrated and active and contributing as a force of people in society.
He asked no special favours and we gave him none. All we
put into the Constitution is the right that the handicapped will
not be discriminated against by legislation. When the official
opposition votes against this charter of rights, let them make
no bones about it; they will be voting against the hard fought
rights of the disabled, like Ron Kanary, and his organization. I
say to the opposition. the only source of shame among all of us
is that we did not do this years ago.
Some hon. Members: Hear, hear!
Mr. Irwin: There has been a grest deal of debate about
referendum. There has been much shaking and quaking by
menlbers of the opposition. They fear the use of the
They look on the referendum process as a deterioration of
democracy. Yet, they fail to say what may be done in a
democratic society to break a deadlock. Their solution to a
deadlock is another deadlock. If the provinces and the federal
government cannot agree among themselves on a solution to a
problem, it seems to me it would be better to ask the Canadians instead of Westminster to settle the matter. What has the
opposition so much to fear from the people? To my mind, no
process can be more democratic than consulting the people.
As Prime Minister Louis St. Laurent once said:
As a Liberal. I have always believed in the capacity and judgment of the
ordinary people. And I carry that belief to the point of believing that when we do
not carry the judgment of the people. the fault is in ourselves and not in the
What is remarkable about that statement is that it was his
last speech as leader of our party. He “had just been turfcd out
of office by the people of this country and he did not blame
them. If there is a difference between Liberals and Progressive
Conservatives, I say that in defeat we do not blame the people.
A referendum should not have to be used.
The mechanism in the Victoria formula is there for the
provinces and the government to utilize. However, if it has to
be used, then this government is prepared to fully trust the
people of this country. It is not our Constitution, it is not the
Premiers’ Constitution; it will be the Constitution of the very
people who the official opposition refused to trust in a
On language, it seems that in this House history keeps
repeating itself. Many of the problems which plague us today
are those which have plagued us for the last half century. I say
it is about time that we solved some of these problems. The
first one which we should solve is minority language education.
In 1916, the appellate court of Ontario upheld regulation 17
which seriously curtailed the rights of Franco-Ontario children
to have schooling in the province in their own language. Prime
Minister.Sir Wilfrid Laurier wrote to the Globe: “We French
Liberals of Quebec are fighting Bourassa and Lavergne. Will
the English Liberals in Ontario fight Howard Ferguson and
the extreme Orange element?” John Dafoe replied: “Let our
Quebec friends thoroughly understand the situation. We shall
not allow them to impose their will on the rest of Canada.”
Prime Minister Laurier went to the House of Commons in
an effort to convince Ontario to change that regulation. He
had a resolution put before the House irnploring the Ontario
legislature of “the wisdom of making it clear that the privilege
of the children of French parentage to be taught in their
mother tongue be not interfered with”. That was on May 9,
1916. Sixty-five years have passed and the problem is still with
The problem of minority linguistic rights still prevails in
Ontario. Had it not been for the intervention of the Ontario
government, the Penetanguishene school board would have
prevented French-speaking children from being taught in the
There were times in the last month when I thought we had
really matured as a nation. I listened to the members of the
joint committee and I thought: “That’s my type of Canada”.
So many prominent witnesses came before that committee, a
cross-section of this country, and their concept of Canada was
the same as mine. The unique experience was that most of
them did not have a special interest in minority language
education or the official languages. For instance, Professor
Irwin Cotter of the Canadian Jewish Congress pleaded eloquently for the linguistic rights of francophones and anglophones. J. P. Nelligan of the Canadian Bar Association came
before the committee and said:
The Constitution should guarantee the right of a parent to have English or
French as the language of instruction of his children in publicly supported
schools in areas where the number of people speaking that language warrants
The National Congress of Italians came before the committee and their spokesman, Antonio Sciascia, said:
Well, if we want to put into effect what we preach, which is bilingualism, then
we have to start implementing that policy somewhere, and I think that if we
treat the francophone: in Ontario the same way that the anglophones are treated
in Quebec, then I think that would be a good start.
His Worship Mayor Dennis Flynn of Etobicoke, on behalf
of the national executive of the Federation of Canadian Municipalities went much further than anything in this resolution
on the question of minority language rights.
I am not quoting l’Association Canadienne-Francaise de
l’Ontario, and I am not talking about what the Council of
Quebec Minorities said. I am telling the House what an Italian
organization, a Jewish organization, an august board of lawyers and an Ontario mayor with an Irish-sounding name said.
We are all Canadians and we share a common understanding
of Canada. I left that committee with a good feeling. I thought
we all agreed on the merit of two official languages. I thought
we all agreed on the merit of minority education.
Then I came back to the House, and on March 3, 1981, I
heard the Progressive Conservative member for Simcoe South
(Mr. Stewart) say:
Unfortunately, no one pointed out that the Durham report recommended the
union of Upper and Lower Canada and the use of one federal language, English.
Had this been adhered to, we would not be having this acrimonious debate in the
I could not believe my ears. At first I thought that what the
hon. member meant was that in 1867, if the Fathers of
Confederation had applied a broader brush, we would not be
having a language problem today. But that is not what he
meant, and it took me a few minutes to realize it. Many hon.
members were in the House that day. What he meant was that
in 1867 they made a mistake in making French an official
language along with English in certain provinces, and giving
certain French-speaking Canadiaans some official status in
Well, he is one Member of Parliament from Ontario and I
am another Member of Parliament from Ontario, and I say to
him through you, Mr. Speaker, that he is wrong. I say, that
the mistake of 1867 will be rectified. I say to the hon. member
that the pleas of Sir Wilfrid Laurier will be heard in 1981. I
say, that this time, through Sections 16 to 23, we will enshrine
in the Constitution, once and for all, the official language of
this nation and the minority language rights of its citizens.
Some hon. Members: Hear, hear!
Mr. Irwin: It is unfortunate that, with the fall of the
previous government, the energy negotiations and the constitutional debate overlap each other. I find it hard to believe,
especially having sat on the joint committee with colleagues
such as the hon. member for Provencher (Mr. Epp), various
members from Ontario, the west, the maritimes and New
Brunswick, that we could be so pedantic and use phrases which
will leave scars in this House for years to come. I keep
reminding myself that if the Constitution stood by itself, or if
the Charter of Rights stood by itself, this acrimony would not
exist and we would agree on such fundamental principles as
patriation, an amending formula and a Charter of Rights. I
hope that I am right.
Prime Minister Lester Pearson once said: “The fundamental
principle of Liberalism, the foundation of its faith, is belief in
the dignity and worth of the individual.” Notwithstanding our
disagreement at this particular time, I think this basic belief is
the belief of all hon. members of this House. I say now is the
time to entrench that dignity and worth of the individual.
In conclusion, I want to thank each and every member of
the joint committee and the support staff who worked for so
many months to make this a better document. There is,
however, a man I have watched anguish over each and every
amendment to this constitution from the day we started to
discuss it. Let there be no mistake; if there had not been such It
man, there would not be the rights for the aboriginal people
that there are in the Constitution now. If there had not been
such a man, there would not have been rights for the handicapped. This man’s vision of Canada is stamped on each and
every amendment to this Constitution. He fought, he spoke, he
convinced. Part of him is this charter of rights. That man is
the Minister of Justice and Attorney General of Canada (Mr.
Some hon. Members: Hear, hear!
Mr. Irwin: Finally, there is the man I consider to be the soul
of this Constitution, one who is seldom thanked. I refer to the
man who spent most of his political life working toward this
day and this time; the man who, like the Phoenix of old, rose
again to lead this party and this government; the man who best
exemplifies our party’s historical past and philosophical future;
the man who has shown us the way along a difficult road. The
opposition blame him, but I congratulate him. I refer to the
Right Hon. Prime Minister (Mr. Trudeau).
Some hon. Members: Hear, hear!
The Acting Speaker (Mr. Blaker): Order, please. Before I
recognize the hon. member for Brant (Mr. Blackburn) and in
order to avoid interrupting him while he is speaking, perhaps I
could dispose of the proceedings on the adjournment motion
for this evening.
RESOLUTION RESPECTING CONSTITUTION ACT, 1981
The House resumed debate on the motion of Mr. Chrétien,
seconded by Mr. Roberts, for an Address to Her Majesty the
Queen respecting the Constitution of Canada.
And on the amendment of Mr. Epp, seconded by Mr. Baker
(Nepean-Carleton)—That the motion be amended in Schedule
B of the proposed resolution by deleting Clause 46, and by
making all necessary changes to the Schedule consequential
Mr. Derek Blackburn (Brant): Mr. Speaker, before I begin
the substance of my speech this afternoon I, too, would like to
extend my deep appreciation and thanks to all members of this
House and of the other place who sat on the special joint
committee which helped produce the resolution which is before
us today. Many long hours of hard work went into those
I often get very angry—usually quietly angry—when I hear
some members in this chamber try to argue in a spurious way
that this is a document that is being forced upon Canadians by
someforeign Parliament at Westminster. We all know that the
constitutional resolution of 1981 which will become the new
Constitution of Canada was conceived in Canada, was written
here and was debated, discussed and argued by members of
the Canadian Parliament. It will be passed, before too much
longer I hope, in this chamber in Canada, It is not a document
of another Parliament—it is Canadian-made for Canadian
It is with a sense of both urgency and pride that I enter this
debate. We are on the eve of passing into law one of the most
important resolutions in our nation’s history, a document
which will have impact on the lives, the hopes, the responsibilities of all Canadians. It is a document, in my opinion, that is
The British North America Act of 1867 has served us, but
the time has come for a new constitution, written by Canadians for Canadians; a document deeply imbued with the great
traditions of British justice, of fair play, of flexibility, and of
common sense. It is a pragmatic document, not flowery and
philosophical and not beyond comprehension of ordinary
people and the application of elected representatives.
Too often constitutions are written by elitists, for elitists.
The constitutional resolution before us is written for people,
for our fellow Canadians. It is written not only for the two
founding races but for all citizens of our great country. It is
written for our native community, for the millions of Canadians who chose Canada as their homeland. It is written for
minority groups, I commend this resolution to the people of my
constituency, to the people who first elected me ten years ago
to sit in this chamber on their behalf. I will be proud to defend
it at any time in my constituency.
There are many reasons for my support for the resolution,
but because of time limitation I will confine my remarks to
just two or three major aspects.
In the first place, Mr. Speaker, I am unabashedly a strong
federalist, although I have always recognized and respected
provincial rights and aspirations where those rights and aspirations have not adversely infringed the Canadian national ethos.
I suggest to all hon. members that the resolution before us
reflects my general, philosophical approach to federalism in
our country today. It does not, Mr. Speaker, reflect the
arguments of those members who would call for the establishment of a Constitution based on the concept that Canada is a
community of communities, or, as one wag has put it, a nation
of five hundred shopping plazas!
The only free country in the world of which I am aware in
which a confederation, that is, a loosely-knit community of
sembautonomous states, has effectively worked is the Federal
Republic of Germany; that is, West Germany. However,
unlike Canada, Germany is a very old country, deeply imbued
with an all-pervasive sense of what was once called “pan-Germanism”, whose origins stem from centuries of gradual development. While German states may have strong individual
powers, “Germanism” transcends most, if not all, conflicts of a
political, judicial and economic nature.
Canada, on the other hand, is a relatively young country
whose fragile culture is still weak, whose national identity has
only recently begun to reflect a national presence. I suggest
that we cannot afford the luxury of establishing a confederation much as some provinces would dearly like. We cannot
afford to chance future national growth by giving in now to
narrow, parochial and regional interests which would only
serve to weaken and destroy that delicate fabric which is so
desperately needed if we are to go forward as one nation, one
That is why I am a strong federalist. That is why we need a
strong national presence throughout our country. However, a
strong national presence does not mean, in my view, a highly
centralized, over-bearing bureaucracy with a heavy hand on
virtually every provincial activity. Far from it. For our new
federation to work, there must be specific provincial jurisdictions, shared powers, and federal paramountcy in key areas of
an overriding national purpose. This, to me, is co-operative
federalism. And, Mr. Speaker, I suggest that the proposed
resolution provides for that kind of co-operative federalism.
Last October, the New Democratic Party caucus was prepared to support in principle the resolution on constitutional
change presented by the Government of Canada. We did so
because, first, in our judgment, action was needed at this
important historical time in our country and, second, because
key elements in the proposed resolution were part of established New Democratic Party policy.
We include among these a Bill of Rights, the recognition of
the duality of Canada, especially its two principal linguistic
groups, and third, entrenchment of the important principle of
equalization which is central to a social democratic party. In
addition, it provided for, at long last, our own Canadian
constitution with a workable amending formula.
Therefore, in supporting this resolution I am supporting my
own party’s constitutional policy as passed at conventions by
the members of my party from all areas of Canada. However,
Mr. Speaker, last October we found some glaring weaknesses
in the Liberal proposals in the original document. We were not
satisfied with many aspects of the charter of rights, equalization, native and women’s rights, and the exclusion of rights for
Consequently, my party said that we would support the
resolution in principle only if two important conditions were
met: that regional and federal balance was restored to the
federal system: that is to say, in this particular case that
provincial control of non-renewable natural resources be firmly
established in the Constitution; and second, that a number of
specific improvements were made in the resolution apart from
this, particularly in the Charter of Rights. In a letter to the
Prime Minister (Mr. Trudeau), my leader singled out as
examples of these specific improvements the strengthening of
the provision as it affected equality for women, the strengthening of the position of the native peoples of Canada, along with
significant changes to the amending formula.
As a result of constructive negotiation with the government,
my party was able to achieve three important concessions from
the government. First, affirmation of provincial ownership and
control of resources. Second, the provinces, for the first time,
will have the right to levy indirect taxes on their resources.
Third, the provinces will have the constitutional right to
participate in interprovincial trade.
Many have condemned those of us who support the Constitution because of the seemingly arbitrary way in which the
process has evolved. To some extent, I agree. The government
has at times attempted to push and ram its way through. The
Prime Minister has a personal timetable to which we objected.
We strongly opposed closure at first reading. We demanded
the committee proceedings be televised so the people of
Canada could be as close as possible to those proceedings and
deliberations. And we vigorously fought to extend the committee’s hearings so that all groups of citizens who so desired
would have the opportunity to present their briefs.
But the process has not been negative and in vain. Quite the
opposite is true, Mr. Speaker. With very effective fighting
both in public and in private, the NDP has been able to
achieve positive changes in the original reduction. Among
these I include the entrenchment of treaty and aboriginal
rights for our native people; and, second, an important change
in the provision respecting women in Canada. We now have
provided in the Charter that women will be guaranteed not
only equality before the law but under the law. Third, the
amending process has been changed to make it clear that a
referendum can be used only as a deadlock-breaking
In addition, there were a number of other changes that
members of my caucus fought vigorously to obtain and were
indeed obtained. I include the handicapped people of Canada,
the recognition of the multicultural dimension of our society
and a general toughening up on the Charter of Rights.
As a result of these changes and improvements in the
resolution which are quite substantial, an overwhelming
majority of our caucus decided to support the constitutional
resolution. However, in saying this I want to stress two important points concerning the future disposition of the resolution.
We have argued that nothing objectionable be added to the
resolution and that there must be a full and fair debate of the
resolution in the House of Commons. These final objections
have more or less been achieved.
However, I would like to add at this point that the main
reason, in my judgment, that there may not have been full and
fair debate is that for approximately six weeks this chamber
was hung up on one amendment. That amendment was not a
government amendment, it was an amendment put forward by
the official opposition, the Conservative party. Consequently,
if anybody is to be blamed for denying full and fair debate in
this chamber, I accuse my friends to the right and not the
There are still some members who would argue that one last
attempt be made to gain a consensus of the provincial premiers
to give the resolution a broader acceptance. In other wprds,
some land of national consensus. I would not be opposed to this
last minute attempt if I were not completely convinced that
such an exercise would be futile. Most of our present and
former provincial first ministers have exhibited, over many
years of negotiations and deliberations, an inordinate capacity
for parochial and regional preoccupation. No doubt most of
this “me first” approach is due largely to local political
myopia. A great deal of it also emanates from widespread
distrust of the Prime Minister. But I do not know why those
premiers should allow their personal distrust of the Prime
Minister to stand in the way of bringing forward this constitutional resolution which will give Canada its first, updated and
modern constitution. I think it is nothing but another example
of this political myopia to which I alluded a few minutes ago
that our premiers want to think only of their provinces and
regions instead of putting the interests of the nation as a whole
first and foremost.
What advantage could be gained from yet another constitutional first ministers’ conference before the resolution goes
before the Supreme Court of Canada, if most of those ministers cannot agree among themselves as to what a new constitution should be all about? At their second last ad hoc meeting
in Montreal they could not issue a press release because they
could not even agree on an agenda. After a half century of
fruitless bargaining with the provincial premiers, I say it is fair
and reasonable for us at the federal level to proceed I am
afraid that another first ministers’ conference would lead only
to another first ministers’ confrontation, in spite of the
so-called compromise consensus announced last week by eight
of the premiers. What is to be gained from an amending
formula, the very basis of which is the right to opt out? When
human rights are enshrined in a charter, those rights must be
inviolate. All Canadians must be protected, not just some.
I would like to draw special attention to the work of two
members of my caucus in their successful efforts to give our
native and aboriginal peoples a fair deal. If it had not been for
my leader and the hon. member for Nunatsiaq (Mr. Ittinuar),
these peoples would have been no further ahead in their
struggle for rights and freedoms than they were before the
resolution was drafted. In the original draft, only those native
and aboriginal rights already recognized by the federal and
provincial governments would have been included in the document. Thanks to the hard bargaining of my leader and the hon.
member for Nunatsiaq, all aboriginal and treaty rights are
guaranteed and enshrined in the constitutional resolution,
much to the chagrin and extreme displeasure of most of the
Further, there has been much discussion and debate as to
the position of our Commonwealth colleagues at Westminster.
Many Tories and other opponents of the constitutional resolution have argued that we are forcing Westminster to do our
dirty work for us; that we are forcing them to pass a charter of
rights and an amending formula that we could not have passed
here in Canada. I find this argument not only spurious but
deliberately provocative and contrived. If the argument had
any validity at all, I would ask the question; Just what have
Canadian parliamentarians in this House of Commons and in
the constitution committee room been doing for the last five or
six months? Surely the opponents of the Constitution do not
think that they can seriously expect the people of Canada to
accept their argument?
The constitutional resolution is a Canadian document. It
was written by Canadians, here in Canada, for Canadians. All
we are doing in sending the document to Westminster is using,
because of legal necessity, a traditional and historic technicality, I hope for the last time. It forces the British parliament to
pass the constitutional resolution, because in so doing the
British parliament is patriating the British North America Act
of 1867 which we all know is an act of the British parliament.
As far as the resolution’s fate at Westminster is concerned, I
am strongly optimistic that our Commonwealth colleagues in
London will appreciate the wisdom of passing it with little or
no debate. In my judgment, they have no alternative.
In conclusion, Mr. Speaker, I should set the record straight
on one point. The constitutional resolution is not the Prime
Minister’s Constitution. Because of the hard work done in
committee, the original draft has now become a dynamic,
compassionate, effective and reasonable document. The constitutional resolution is the product of many parliamentarians. I
have no illusions about its application. As in all other federal
jurisdictions in the free world, there will continue to be
jurisdictional disputes, there will continue to be differences of
opinion, there will be continued differences in adjudication.
But I feel that we have a document that is both relevant and
workable and that future parliamentarians, prime ministers,
provincial premiers and jurists alike will, over time, continue
to mould an even better constitutional framework for future
generations. For the present, I am satisfied that we have done
a good job.
There are two aspects to this debate that I find somewhat
difficult to comprehend. One is the argument raised mainly by
the Conservatives about the exclusion of property rights in this
resolution. It is my understanding, based on the British North
America Act, that both property and civil rights are under
provincial jurisdiction. When we wrote the charter of rights,
we were in effect taking away a very large area ofjurisdiction
from the provinces and putting it under federal control. I find
it incomprehensible that we would also try to take away the
other major area of jurisdiction from the provinces, namely
property rights, if we were at all serious in the first place about
getting provincial consensus and support for the Constitution.
I would like to state very clearly that in supporting this
resolution I am in no way voting against the right to own
private property. I simply say that property rights and property ownership rightfully eome under provincial jurisdiction
for a variety of reasons. It is much easier and legally feasible
if, for example, arguments concerning rights of way, easements and expropriation of private property are adjudicated,
along with the legal struggle or battle, among the municipalities and owners of private property under the auspices of
provincial governments, rather than taking the legal battle to
the Federal Court in Ottawa.
That is one reason why I support this Constitution as far as
property rights are concerned. Property rights and ownership
of private property belong with the provinces. Let them pass
laws dealing with whether governments at all levels can expropriate; and, if the expropriation goes through, there should be
The other point I cannot understand is why the Leader of
the Opposition (Mr. Clark) would for so long support five, six
or seven provinces acting against what I consider to be the
national interest. Although I do not want to put words or
thoughts into his mind, I am quite sure he has lost that fight,
through no one’s fault but his own. It is my belief that the
leaders of all parties in this chamber come here, perhaps first
and foremost to lead a national party, but through that
national party to try at least to represent the entire nation.
They do not come here as a mouthpiece for, or the puppet of,
two, three or four provincial premiers.
I am happy to have this opportunity to tell the House and
my constituents that my party leader, the hon. member for
Oshawa (Mr. Broadbent), under great duress and pressure
from certain segments of our party in the west, stood up for
national rights, the rights and best interests of Canadians, not
simply the best interests of our party in one province.
In closing, I would just like to say this. If I have one
disappointment with the resolution, it is that in the preamble
we did not guarantee to all Canadians the right to live and
work in a safe and healthy environment. This challenge still
lies ahead. Those of us in this chamber who have worked hard
to fight against pollution and polluters, to make our lakes and
rivers clean and productive, to make the air we breathe clean
and pure, the workplace safe and healthy, will continue our
struggle until we win. And win we will.
As I wrote in my last message to my constituents:
Long after the political pundits and commentators have criticized and condemned the process, historians, political scientists and constitutional experts,
while not agreeing on all aspects of this resolution, will at least, I feel confident
say we did our best to give our fellow Canadians as a reasonable and workable
Constitution under very trying and divisive circumstances.
The constitutional resolution is not a perfect document. But
then, none of us in this chamber is perfect either. We have just
tried to do our best. And I suggest that is all our constituents
expect, no more and certainly no less.
Mr. Norman Kelly (Parliamentary Secretary to Minister of
Supply and Services): Mr. Speaker, like everyone else who has
risen before me, I am acutely aware of the significance of
these deliberations. The opportunity is rarely given to Canadian politicians to participate in a constitutional debate so,
unlike many members of the official opposition, I have resisted
the temptation to disinter old campaign speeches and will
attempt no more than to share with my colleagues on both
sides a few relevant personal reflections on the resolution
before us and on the nation that possesses my loyalty and
commands my conviction.
This House is a legislature, but it also possesses a judicial
authority which, although rarely employed, is nonetheless real.
I point this out because, although I do not want to avail myself
of this judicial power, I do want to evoke its spirit. For in this
constitutional debate there is an idea on trial. The idea-and
now I am quoting from confederation newspapers—is “the
new nationality” of “one people—one in laws, one in government, one in interests”. In other words, Canada, as it was
conceived and given form by our ancestors 114 years ago.
Admittedly the purity of this idea has been compromised as
it has passed through the generations. We tolerate a diversity
that our founding fathers did not anticipate and probably
would have abhorred, but its core, the realization of an underlying, sustaining unity to our existence and its expression in a
vigorous national government, has remained substantially
intact until quite recently.
Since the early 1970s, however, this core has been bludgeoned to the breaking point by the forces of cultural chauvinism and economic acquisitiveness. The instrument employed
by the agents of these two forces, that is, many of the
provincial premiers and most of the official opposition in this
chamber, in an effort to legitimize their assault, is an alternate, diametrically opposed concept of Canada as a community of communities, a compact, a consensus, a federalist state,
a partnership of two equal sovereign jurisdictions, incapable of
being operated except in tandem, unable to be changed at this
time save through unanimous consent and fated, through
historical and geographical imperatives, to follow a decentralized destiny.
Most Canadians continue to give their allegiance to the
traditional concept of the state but the vigour, and at times the
flair, with which the assault on its legitimacy has been prosecuted, especially over the last few months, has confused many
people and subsequently weakened their commitment to the
point where the proposed constitutional improvements appear
not only odious but illegal.
Well, are the administration’s opponents correct? Is their
version of Canada the appropriate one and ours, on this side of
the House, wrong? Let me examine both ideas.
I want to go on record as saying, simply but emphatically,
that the opposition’s vision of Canada, this unholy trinity of
compact, consensus federalism and community of communities
is one of the boldest frauds ever promoted in our political
history. It is as intellectually dishonest in its formulation and
its propagation as it will be, if victorious, calamitous in its
These are harsh words, but they reflect my concern with a
view that is advanced by its supporters as the original, and
therefore the legitimate, concept of Canada. If you read the
literature of the confederation period written then, or subsequently by historians, you will find nothing of substance to
support their claim. None of our founding fathers believed
they had created a community of communities. None of our
founding fathers believed that the new state had been conceived through a compact, and none of our founding fathers
believed that its future would be sustained or altered according
to a consensus procedure, and because they did not believe any
of these things, they did not say them.
They did say that the national government undeniably had
to be the superior level of government with powers that were
independent of and which dwarfed those of the provinces, and
they crafted the British North America Act accordingly.
Clearly, Mr, Speaker, the opposition’s idea of Canada’s
constitutional origins is a mythological fabrication. But despite
this, despite its less than reputable origins, could this idea still
stand on its own merit as a viable, new, radical interpretation
of the Canadian state and the people whose destiny it seeks to
guide? After all, its proponents insist that it certainly mirrors
today’s reality more clearly than does our own.
But what is more illusory and short-lived than today’s
reality? Constitutions are designed for the centuries. What is
there in today’s reality that would serve future generations of
our new nationality? What kind of country would we have
when the national government would be perceived and treated,
as it is now by many, as a distant, largely irrelevant imperial
power by semi-autonomous provinces, eyeing each other suspiciously, eager to take offence, and anxious to exercise retributive power?
What motivation to greatness would there be in a nationality that believed that less is more, that you can come together
by pulling apart, or that the ultimate objective is to think
small? How will its people flourish with an economy characterized by fragmented domestic markets, a shrunken industrial
base and expensive overheads?
If this vision of Canada were ever to be given constitutional
form, I would fear for our posterity. The state would survive
but it would ultimately become a body without a soul, alive yet
lifeless, a Canadian Commonwealth perpetuated not for its
own sake but for the convenience it offers its constituent
members. In sum, Mr. Speaker, this idea frightens me. It is
contrary to the intentions of our founding fathers and its
implementation, I believe, would deny the aspirations of most
What of the ancillary ideas which have accompanied this
perception of Canada into the constitutional arena? If I may, I
would like to comment briefly on the nature of the response
our constitutional proposals have elicited in and outside this
I confess that I had expected something more uplifting than
I have witnessed. After all, the federal Conservative Party is
the possessor of a rich political heritage which I thought would
have significantly shaped the style and substance of its members’ arguments. But apart from the deliberations of the joint
committee and a particularly fine address in this House by the
hon. member for Edmonton East (Mr. Yurko), this heritage
has been ignored by a strategy that more closely resembles the
bitterly contested elections of 1979 and 1980 than it does a
productive, reflective debate on the nature and future of the
great Canadian experiment.
Admittedly, some Conservatives have advised compromise
and conciliation but, at the same time, the party has bent
every effort, much of it malicious, to pit west against east and
anglophone against francophone, in a futile attempt to force
total surrender upon the Prime Minister (Mr. Trudeau). Yes,
some Conservatives have supported, in fact have worked to
improve, the charter of rights, but the vast bulk of their
colleagues have treated the charter with unrestrained
These are not the only inconsistencies in the official opposition’s reactions. Consider these as well. On one day it is the
protection of the sacred British principle of the supremacy of
Parliament; on another day, indeed sometimes even in the
same argument, it is a demand that Parliament abandon the
debate so the courts might decide. Or some speakers will
passionately demand more powers to the provinces or urge the
maintenance of existing powers, while others will just as
passionately insist that we transfer property rights from the
provinces to the federal government in our new charter and
they would all have Canadians believe that the British North
America Act, without mention of the Deity or the family, was
a superb Constitution, while the Canada Act, because at this
time it mentions neither, is a seriously, if not fatally, flawed
I could go on, Mr. Speaker, to mention the Vancouver
formula, a modified Vancouver formula, a modified Victoria
formula, no referendum, or a referendum before the package
goes to Britain. Ah, the referendum! It strikes such unqualified
terror in the opposition, but I confess I do not understand why.
It was very obviously lifted from Australia. Since that country’s dedication to democracy and federalism is surely unquestioned by members of all parties in this House, I should have
thought that even a cursory examination of the Australian
experience would have relieved any initial anxieties of the
provincial premiers and their federal allies.
For example, since 1901 approximately 100 proposals have
been considered for the purposes of referenda. Only 37 have
been submitted to the people; eight passed and 29 were
rejected, including every item which would have increased
federal power at the expense of the provinces. So much for the
tyranny of the majority.
In review, how do we account for the advocacy of a radical
interpretation of Canada by the Conservative Party? How do
we explain the party’s anger and the anomalies of its constantly shifting arguments, including the ones which were made at
today’s press conference? How do we explain its irrational
fears? Do they collectively reflect the opposition’s traditional
view of the state, the nation and the Constitution? I doubt it.
There is little in their performance of D’Arcy McGee, Sir John
A. Macdonald, Arthur Meighen or John Diefenbaker.
I suggest by way of explanation that all the evidence reveals
a party in such intellectual disarray that no one has either the
insight to draw on the magnificent traditions of its past or the
courage to tame the passions its members have aroused or the
prejudices they have exalted. If nothing else, this debate has
vividly illustrated just how far a once proud party has strayed
from its historical commitments under a leader preoccupied
with mutiny and a field commander who mistakes unctuousness for piety.
On the other hand, this government’s concept of Canada
flows from the understanding that our founding fathers were
creating a state with an identity separate from and superior to
the individual colonies whose territories and people it
embraced. That is why they proclaimed, proudly and confidently, that they had created a new nationality. That is why
they invested the government of this new nationality with
powers to control what they very clearly intended to be in a
subordinate legislatures. These men knew that sooner or later,
federal state, leaders would arise who would seek their destiny
primarily or exclusively within the narrow confines of a province, and they were determined to give the future leaders of
this new nationality the tools with which to inhibit or roll back
Given this background, why do we doubt the legitimacy of
the processing of these constitutional proposals? This government—any government in Ottawa-has not only the right but
also the duty to protect and promote the nationality in times of
great stress with any or all of the tools at its disposal, including
unilateral constitutional initiatives. So our idea, I therefore
claim, is valid and our process legitimate.
What, then, of the content, specifically the charter? I consider the charter to be the long overdue, logical fulfilment of
the promise of confederation. For too long have we tolerated
impediments to our right to enjoy the full legal benefits of
Canadian citizenship. If our nationality is to be whole, if it is
to remain healthy, and if to have a vigorous future as it has
had a past, we must transcend the barriers of place, geography
and circumstance with this new charter.
If it has a flaw—and it is not without blemish—it may be
found in its caution. Simply put, it does not go far enough. I
am thinking particularly of its inability to advance more
vigorously the interests of a Canadian economic common
market. Not only must labour move more freely inside
Canada, but so too must capital and goods if we are to
maximize our economic potential and create wealth for personal enjoyment and social service.
In addition, sexual discrimination should be totally
obliterated. French language rights should be extended further, and a preamble displaying our acknowledgement of the
transcendent moral authority of the deity should be
But these concerns can wait. I agree with the Prime Minister (Mr. Trudeau) when he says that more reforms will follow
patriation, and I trust that they will enjoy a high priority on
his agenda or that of his successors.
To sum up, although I admit to a modest employment of
hyperbole in delineating the choices we face as a Parliament
and as a nation, I firmly believe that a fundamental decision
has to be made by Canadians within the next few months
between the reaffirmation of our nationality as it was originally conceived and historically implemented and the revolutionary visions of its opponents. Obviously, I have chosen to
remain with the former, It is a concept of Canada which
created one of the largest, most powerful states in the world.
Why would it not in its enhanced form prove capable of
sustaining that position?
There are occasions in the life of a people when they are
offered an opportunity of transcending the limitations of the
moment and, by doing so, transform themselves. Our founding
fathers had the insight to recognize that moment and summoned the courage, without benefit of electoral mandate or
public discussion, to act, and we are the beneficiaries.
Such an occasion has presented itself again. Should we rise
to that occasion? Of course. Are we lesser people than our
forefathers? Can we rise to that occasion? Well, Mr, Speaker,
rise we must. And rise we shall.
Mr. Gordon Taylor (Bow River): Mr. Speaker, I want to
refer to the preamble of the BNA Act. We have heard
speakers this afternoon refer to the Fathers of Confederation
and what they intended, and I think we should refresh our
minds as to exactly what they wrote into the preamble. I
Whereas the Provinces of Canada, Nova Scotia and New Brunswick have
expressed their desire to be federally united inlo one dominion under the Crown
of the United Kingdom of Great Britain and Ireland, with a Constitution similar
in principle to that of the United Kingdom:
And whereas such a union would conducc to the welfare of the provinces and
promote the interests of the British Empire:—
I emphasize the second paragraph. The provinces, by deciding to unite, created a federal government. Little did they
realize that that federal government would turn into a Frankenstein a few score years down the road, but that is what is
happening. It was never intended that Canada would be a
unilateral country. The Constitution sets out that the federal
government is not supreme, as one of our members so vividly
pointed out the other day, and that the provincial governments
are not supreme. Each of their powers is according to what is
set out in the British North America Act.
The British parliament is supreme. There is no other government there, but in Canada the Canadian government is not
supreme. It has only the powers which were given to it by the
provinces, and the provinces retaineo other powers which are
set out in the BNA Act.
In 1867 the plan was not to weld the provinces into one
country; not at all. Neither was it to subordinate the provincial
governments to a central authority. Otherwise, not one of
those four provinces would have joined in 1867. The BNA Act
established a central government in which the provinces should
be represented. The central government was entrusted with
exclusive authority only with respect to affairs in which the
provinces had a common interest. That was set out in the
British North America Act. That is what is causing concern
among the provincial governments and the people of Canada
to a very large degree today. If we allow this unilateral action
by the Canadian government, we will be changing the very
nature of this country as we have known it.
Many men and women in this country fought for Canada.
Many of their colleagues gave their lives fighting for this
country. They did not do that to have the country changed into
a unilateral state, which is what we are seeing take place now.
In checking history I could not find one prime minister who
would do what the present Prime Minister (Mr. Trudeau) is
doing by way of unilateral action. I could go back further, but
I will go back only to 1925. In 1925 the minister ofjustice, the
hon. Mr. Lapointe, made a statement on a proposed enactment
by the U.K. parliament of a measure vesting the Parliament of
Canada with the power of constitutional amendment. This is
what he said:
The British North America Act itself is not only the charter of the Dominion
of Canada; it is just as much the charter of the provinces of Canada—
That is what we are forgetting today.
Would it then be fair for us to arrogate to ourselves the right to change the act
which is just as much the Constitution of the provinces as it is our own? . . .
Within their sphere the provinces enjoy the powers of self-government just as
much as the dominion Parliament does, and if so, surely the dominion Parliament cannot take upon itself the right to change a statute which gives to those
provinces the powers which they enjoy—
Unilateral action will change this country. In 1925 the
prime minister of the government of that day recognized that.
Let us move to 1946, when a great Canadian, the Right
Hon. Louis St. Laurent, was minister of justice. He was asked
the question whether Section 133 of the British North America Act could be altered without provincial assent. Section I33
is the section which provides French and English language
rights in the Parliament of Canada, the Supreme Court and
the legislature of Quebec. Mr. St. Laurent was asked if the
federal government could force the same thing on every other
province. This is what that great man, who has passed on, said:
Legally I say it can. The situation appears to nte to be this. There are persons
and nations who reach a high estate in the affairs of men, and the high estate
they reach imposes upon them high obligations—I feel—and I believe my fellow
Canadians of my race and religion can feel—that a better guarantee than
anything that might be found in section 133 is to be found in that respect, for
those who have been formed under the principles of British freedom and British
fair play, to protect what are our essential rights.
It is not the manner of those who have themselves had, and whose ancestors
have had, the formation that comes from that long history which has brought us
to this point in the civilization of mankind, to do things which the conscience of
humanity at large would regard as dishonourable; and the conscience of humanity at large would frown upon as assemblage in this House that attempted to take
from me and from those of my race the right to speak the language I learned in
my infancy as one of the official languages in which the deliberations of this
House may be carried on. So it is of everything else that is not within section 92.
If it is fair, if it is just, if it is proper according to the standards of human
decency, it will be done; if it is unfair, if it is unjust, if it is improper, all
members of this House will say, “It is not our manner to do such things.”
The great prime minister would not force himself to do
something he considered dishonourable, even though it was
legally right in his mind. Also in 1950, the Right Hon. Louis
St. Laurent said the following in his opening statement at the
constitutional conference of federal and provincial governments:
—it is, and has always been, the view of the present federal government that the
exclusive jurisdiction of the provinces which gives a federal character to the
Constitution of Canada must be respected.
I should like to repeat again the opinion I have expressed on many occasions
that, regardless of the legal position, nothing placed by the Constitution under
the jurisdiction of the provincial legislature should be dealt with or altered
without provincial participation.
Those were the words of a great prime minister of Canada,
albeit he was a member of the Liberal Party.
Then in 1956, in reply to a question by the Right Hon. Mr.
Diefenbaker, Prime Minister Pearson said:
My right honourable friend also referred to the fact that we said very little in
the Speech from the Throne about constitutional amendment, and that we
seemed to have dropped the Fulton-Favrcau formula. We have not dropped it,
Mr. Speaker. We shall do our best to put it into effect if and when we get the
agreement of all the provinces, but without that agreement it cannot be done.
Then there was the fourth principle of the Hon. Guy
Favreau in 1965 which indicated:
That the Canadian Parliament will not request an amendment directly
affecting federal-provincial relationships without prior consultation and agreement with the provinces.
I come now to 1979 when the Right Hon. Prime Minister
(Mr. Trudeau) said the following at the February 6, 1979,
meeting of first ministers:
So, will there be unilateral action by the federal government regardless of the
result of this conference? Our priority would he to seek agreement and move in
areas of federal and provincial concern where we could move together but if we
are not successful I repeat we preserve our constitutional right to change our
constitution, the federal one, just as the provinces keep their right to change
their provincial constitutions and I do not think either the provinces or the
federal government would want to give up that right Our priority is to
change this constitution collectively, federal and provincial . . . We will adopt a
Charter of Human Rights, we will constitutionalize it. We cannot force the
provinces to do it. We are trying to convince them to do it . .. I can answer
unequivocally that the federal government intends to entrench a charter of basic
human rights and of linguistic rights. Now, this will bind the federal govern-
ment; it won’t bind the provinces unless they want to bind themselves but here
again we can under our constitution bind ourselves just as the provinces, many of
you, have adopted charters of human rights. Well, we have adopted one and we
want to constitutionalize it.
Those were the words of the present Prime Minister who has
now changed his mind and is imposing items upon the provinces. He has said that conferences fail. I wonder why in 1979
he said that it will not bind the provinces unless they want to
bind themselves? In other words, they would have the right to
opt in or opt out.
I should like to refer to a book which was written by the
Prime Minister entitled: “Federalism and the French-Canadians” which was republished in 1961 in “Social Purposes for
Canada”. On page I48, the Prime Minister argued against the
centralizing policies of socialists. He stated:
And there is surely some good in trying to improve upon, or modernize, the
rational but perhaps aging division of powers adopted by the Fathers of
Confederation. I am inclined to believe, however, that Canadian socialists have
exaggerated the urgency of rewriting or reinterpreting the BNA Act. Most of
the rcforrns that could come about through greater centralization could also
follow from patient and painstaking co-operation between federal and provincial
governments. And the remaining balance of economic advantage that might
arise from forcefully transferring more power to the central government is easily
offset by the political disadvantages of living under a paternalistic or bullying
He said, “living under a paternalistic or bullying government”; that was back in 1961. How he has changed! He does
not mind establishing now a bullying government and ignoring
the provinces. He does not mind doing something unilaterally
which no other prime minister in the history of Canada would
have even thought of doing.
On March 31, 1976, the Prime Minister sent a letter to the
premiers in which he wrote:
In practice, of course, the federal government has in the past sought the
unanimous consent of the provinces before seeking amendments that have
affected the distribution of powers,
Also he wrote:
—our Joint Address and having it included in the British legislation as an
enabling provision that would come into effect when and only when it had
received the formal approval of the legislatures of all the provinces—
Those were the words of the present Prime Minister. It
reminds me of the saying: “Do as I say, not as I do”. Then he
wonders why the provinces are not happy with the present
The present Prime Minister has not approached this matter
in the same manner as former great prime ministers, such as
the Right Hon, Louis St. Laurent. He has used trickery and
bargaining in regard to the Constitution of the country. I do
not see how anyone, even members of his own party, can be
proud of that. Part of that trickery was the inclusion of several
items, some of which were good and some of which were bad,
in one package so that people have to accept the bad with the
good. Rather than separating them and voting separately on
them, one must accept the whole package.
Today I heard a member of the Liberal Party say that they
would give us rights. The Prime Minister of Canada and the
Government of Canada cannot give me rights. They might be
able to take some of them away, but they cannot give them. I
have all the rights they want to include in the charter and
some others. One has those rights if one is born a Canadian
citizen. I consider that I have those rights from God and not
from the Prime Minister of Canada. If the Government of
Canada can give me rights, then it can take those rights away.
I do not think we would be fooling the people at all by making
them think that they are receiving rights that they do not have
today, as the hon. member for Sault Ste. Marie (Mr. Irwin)
said. They are not receiving any rights they do not have, they
are losing some, which is what I want to deal with, This is
another subject to think about when one considers the Government of Canada and the Prime Minister taking part in this
kind of trickery. I quote from the Kirby paper which says:
There would be a strong strategic advantage in having the joint resolution
passed and the U.K. legislation enacted before a Canadian court had occasion to
pronounce on the validity of the measure and the procedure employed to achieve
it. This would suggest the desirability ofswlft passage of the resolution and U.K.
This concept is what some members opposite and some
members to my left are supporting. It is trickery being performed on the Canadian people. It is no wonder that the
premiers of the provinces are upset.
I would like to give you another example of trickery, Mr,
Speaker. In the Constitution there is a section which limits, at
least to a degree, the control of the Senate. What’ happened is
that the Prime Minister sold out to twenty Liberal senators.
He sold out for votes; it had nothing to do with principle.
Where are the principles which were embodied in the administration of the Right Hon. Louis St. Laurent when he spoke
about the high principles of people in office and their obligation to apply those principles?
Then there was the bargaining in connection with women.
The Prime Minister likes to bargain. When the hon. member
for Kingston and the Islands (Miss MacDonald) pleaded for
the rights of women a few days ago, the Prime Minister said
that he would give her that if she gave him her support. He
says that he will give anything if he receives our support. I
want to tell the Prime Minister that the rights of Canadian
women may certainly be discussed but that their rights are not
for sale to the highest bidder. I think the Prime Minister and
his party should know this. They should also know that women
are not to be traded for political support.
So intent is the Prime Minister on bargaining that he even
wants to trade God for lesser things. He has left God out of
the Constitution. I heard the Prime Minister speaking on a
radio show broadcast from Vancouver a few weeks ago. He
said that the premiers were the ones who wanted to leave God
out. He said that he wanted the provision but that they would
not allow it. He then stopped; he would not go on to say that
the preamble which the premiers had rejected included a
number of factors. There is not a premier in Canada who
would reject having reference to God included in the preamble
of our Constitution. But then the Prime Minister goes out and
ties this issue to other matters such as language rights, and he
says to the people of Canada that the premiers did not want a
reference to God included in the Constitution. The Prime
Minister is adept at putting items that everyone wants in with
items that he wants. To obtain the good, we must accept the
whole package. The premiers saw through the Prime Minister’s trick and refused the preamble.
The Prime Minister says and I quote, “The premiers are
against God.” I want to say that bargaining has its place with
respect to earthly things. I also want to state emphatically that
God is not negotiable and we are not out to bargain. He cannot
be traded. He is a supreme being, the creator of the world and
all that is good. It is inconceivable that we could have a
charter of rights without recognizing the supremacy of God.
People tell us not to worry about it, it will be in the charter
some time in the future. I ask why not now? It is wanted by all
the people of Canada.
Someone said that there are a few atheists in Canada. I do
not believe there are any. I have never seen one yet. Those who
profess to be atheists call for a priest, a minister or a pastor
when they are dying. This is a Christian country and we
should not leave the reference to God out of the charter.
The people of Canada came from far away countries. They
came to Canada for many reasons, one of which was freedom
of religion, so that they could worship God in accordance with
their own dictates. In Standard, Dalum and other areas of
Alberta some of the Danish women there built a church while
their men prepared the land or went out to work. The Ukrainian women in the Vegreville area built their church. We are
now saying to these people that we will be taking God out of
the charter. They will be thinking that the next thing we will
be saying is that we cannot even recite the Lord’s Prayer in the
House of Commons or in schools. If that is what the NDP
want to support, and if that is what the Leader of the NDP
bargained with the Prime Minister over, then I am sure the
people of Canada will not appreciate it very much.
There is another bit of trickery when you look at Clause 15
in the charter. Before the matter came before the joint committee, the words in Clause 15 were “Everyone is equal”. That
was quite satisfactory. Then, before the committee, the Ministger of Justice (Mr. Chretien) changed the word “Everyone” to
read “Every individual”. The pretext was that “Every
individual” does not include the unborn child. What will that
change do to our country? I know what it might well do. In
1979 there were over 65,000 abortions in Canada. If the
amendment including “Every individual” passes, then provincial and local governments will have people on their backs
asking for abortion clinics. They will say that they need to
have an abortion clinic, otherwise they are being discriminated
against. The first thing that will happen is that our local
hospitals will be providing abortion facilities. The minister of
health will be forced to construct abortion clinics. All of this
could be avoided if reference to the unborn child were included
in the charter. We go to great lenghts to protect the whales. I
hear members opposite cry out in horror when we want to
execute a man who murders a little boy or girl. They say that
we must not think of murdering them. Now we will be
murdering the unborn children, for that is what abortion is,
murder. Can any Canadian in this country, or any member of
this House, stand up and say that they would support that type
Section 12 says that everyone has the right not to be
subjected to any cruel or unusual treatment or punishment—capital punishment—with a view to the fact that the court
would decide that executing a man or woman who deliberately
plans and takes the life of another human being would be cruel
and unusual punishment. Well, here again, with these kinds of
words they are trying to fool those who believe that we need
capital punishment in this country and, that it is the basis of
all our laws. We punish a child for doing something wrong.
Then we punish him more severely for doing something more
wrong. Then if he does the ultimate crime, he should have the
untimate punishment, death, if he deliberately plans and takes
the life of another human being. Many problems will arise in
this country through that.
As one man said to me, in Standard, “I wonder how those
who are opposing capital punishment would feel if their little
girl were tortured, deliberately abused, mutilated and killed
following a sex act, a little girl who could not help herself.” Do
we say that man has a right to live? That man has earned
death and he should be executed. But in our charter of rights
we are saying, “Oh, no. That would be cruel and unusual.”
Then we come again to this matter which I consider trickery, this matter of aboriginal rights. Why does the government
not define “aboriginal rights”? For years, the Prime Minister
would not accept aboriginal rights. He said, “I don’t know
what they mean.” He said in this House, just weeks before this
was put in the charter, “I don’t know what aboriginal rights
mean. Define them, and then I might put them in the charter.”
But finally he put it in the charter without defining it. What
does it mean to the Indians across Canada, to the status
Indians, to the non-status Indians, to the Metis, to the Inuits
and to all the other groups? Does it mean anything? I am
asking, does it mean anything? If it means something, define
it. Be fair to our Indian people.
For years and years we have been unfair to our native
people, the Indians and the Métis and Inuits. We have shoved
them off in reserves. We have shoved money at them and we
expect them to live under conditions of starvation. We will not
let them do this and we will not let them do that. We confine
them in the Indian Act, We send them gifts of money which
they cannot receive properly even then. We send them money
for water and sewerage, and we send it to them in December
when one cannot even think about digging on the prairies or
putting in water and sewers. It is unfair, and here we have the
perpetuation of the same thing. Our Indian people and our
Métis people and our Inuits have a right to fairness; but they
are not getting it if all we do is simply put aboriginal rights in
the charter, or if we merely say they will have aboriginal
rights. They want more than that.
Then we come to the referendum. Again, there is trickery on
the part of the Prime Minister. He blatantly fools the people
by saying, “We’ll let the people decide,” knowing very well
that over half the people are in central Canada. I object to
being a second-class citizen because I was born in Alberta. I
object to the people of P.E.I., Nova Scotia and New Brunswick being second-class citizens, or the people of Newfoundland or Saskatchewan, Manitoba or B.C. being considered
that. We are Canadian citizens. We each belong to a province.
Each of those provinces should have equal rights, They are
provinces. If we want counter balances, let us have the same
number of people from each province in the Senate. There
should be a Senate reform so that there can be a counter
balance. However, let us not make second-class and third-class
citizens out of people of Canada. How can the members of the
NDP go back to Saskatchewan and British Columbia and tell
their people that they are now second-class citizens? And
The Acting Speaker (Mr. Ethier): Order, please. I regret to
interrupt the hon. gentleman, but the time allotted to him has
Mr. René Cousineau (Gatineau): Mr. Speaker, it is for me a
great honour to take part in this historic debate on the future
constitution of Canada. In my intervention I will not pretend
that I have invented every idea set forth thus far, that I am
saying something new or that I am coming up with new
arguments; although I do not hold a copyright I did associate
myself with these ideas over the years. The fact remains, Mr,
Speaker, that repetition is the only way to make sure that the
people of Canada have had every opportunity, every chance to
make up their mind on the patriation of the constitution.
Nor do I claim to have a monopoly over truth, because for
us the absolute very seldom exists. Today I am expressing my
opinion honestly, openly, without duress from or obligation
toward anyone, whatever the people across the aisle or the
separatists in Quebec may say. I urge the people of Canada to
pay very close attention to everything that has been or will be
said in this House about the constitution and to everything
that has been or will be written on the subject because some
day Canadians will have to make a decision either in an
election or in a referendum. I said a moment ago that the
absolute very seldom exists, but something which is absolute,
Mr. Speaker, is my full support, my unconditional devotion for
my leader the Prime Minister of Canada (Mr. Trudeau) and
for the Minister of Justice (Mr. Chrétien). When this debate
has become a thing of the past, I want my descendants and the
children of my descendants to be governed by Canadians
under a Canadian statute, a legislation and a constitution of
Mr. Speaker, nowhere else in the world do we see such an
effort to have a country’s constitution taken out of alien hands.
Nowhere else do we witness elected representatives, seven
provincial premiers and the Progressive Conservative opposition in this House fight so strongly against patriation of the
constitution as it is now proposed. The point to remember, Mr.
Speaker, is that if their efforts and their tactics are successful,
perhaps I will never get to sec that and other hon. members
will never get to see that constitution.
Mr. Speaker, I remain confident still, I believe I have the
same confidence felt by Mr. Pearson and all hon. members
during the flag debate, the flag which we are so proud of
today. When we look at it we can say with pride that it is
Canadian, it is ours, and that brings warmth to our heart.
Mr. Speaker, since the beginning of this debate I have heard
a lot of discouraging words on the opposite side, words which
say the resolution is a dangerous document, words about
destruction of partnership, threat to the unity and health of
this country, personal attacks against the Prime Minister (Mr.
Trudeau) and attacks on bilingualism and the French fact.
What makes those members so right and us, Liberal and NDP
members who favour the resolution, so wrong? Why do those
members call the Liberals the oppressors, and through you,
Mr. Speaker, call the Conservative members the great defenders of democracy in this House?
I have here in my hand a letter from one of the Tory
May I call it six o’clock, sir?
The Acting Speaker (Mr. Ethier): Order, please. It being
six o’clock, I do now leave the chair until 8 p.m.
At six o’clock the House took recess.
The House resumed at 8 p.m.
The Acting Speaker (Mr. Ethier): Order, please. With the
consent of the House, I shall take this opportunity to inform
the hon. members that pursuant to the Order of the House
made on Wednesday, April 8, 1981, the Clerk of the House
has received from the House leaders of the Progressive Conservative Party, the New Democratic Party and the government notices of amendments which will be printed in tomorrow’s Order Paper. The Order states that these amendment
are deemed to have been moved and they can therefore be
I understand that the members who have already taken part
in the debate can now speak again about the amendments if
they are recognized by the Chair.
When the House rose at six o’clock, the hon. member for
Gatineau had the floor.
Mr. Cousineau: Mr. Speaker, at six o’clock I was saying
that I had received a letter from an hon. member of this
House. I do not intend to read it all but I should like to read
part of it. I am sorry to say that I do not think members of the
opposition received the letter from their colleague, becaiise it
was sent to the Liberal caucus and senators. The letter says, in
part that “A sheep-like loyalty from his followers was all that
Adolph Hitler needed to seize power in the 1930s. Please don’t
tell me that it couldn’t happen here.” That letter was on
notepaper headed “House of Commons, Canada”. The comparison it made was to one of the greatest murderers that
mankind has ever produced. I do not think this sort of thing
has any place on Parliament Hill, Mr. Speaker. I am quite
sure that many members on the other side feel the same way,
deep down in their hearts.
After I received the letter, I asked the member concerned if
he agreed with everything he had signed and he said, “I
honestly believe in what I said in that letter”. I answered that
that was just too bad in the circumstances.
I heard some speeches in this House a couple of weeks ago.
One in particular was made by the hon. member for Edmonton
East (Mr. Yurko) who spoke in favour of the resolution but
made no personal attacks on anybody. A member of the NDP
spoke against the resolution but made no personal attacks. One
of my colleagues, a Liberal, also spoke against the resolution
but did not draw any comparison with Soviet Russia and made
no mention of Adolph Hitler. Those were true, honest and
sincere opinions and that is what we want to hear in this
House. I respect those hon. members. That was Parliament at
its best, with an expression of opinions.
Is it dangerous to think of preserving and reinforcing the
human rights of Canadians? Is it dangerous to try and find an
amending formula? Is it dangerous to talk about equalization?
Is that the destruction of parnership? Is it destructive to
permit any Canadian to continue his education in English in
Quebec? Is it destruction of partnership to permit any French
Canadian to continue his education anywhere in this country?
I ask hon. members to think about that.
Mr. Speaker, Canadians are bewildered during this debate
by certain allegiances, nay, by some alliances. They wonder
why there was a union to fight separation in 1980, and why
there is now this allegiance to and this union with the very
person who wanted to break up the country once and for all?
On May 20, 1980, Quebec wanted a change. The status quo
had to be broken after 54 years, and in the meantime, the
Quebec people gave a mandate to the Parti Québécois on April
13, 1981, to continue to govern and to build Quebec and not to
destroy Canada by separating. I hope that Mr. Levesque will
keep his word: no referendum or elections before three or four
years. Quebec has shown confidence in him and we have to
respect this decision. However, I urge him not to betray this
confidence and to work in the interest of Quebecers toward the
welfare of the Canadian people as a whole.
All Canadians, and all the Premiers of the nine other
provinces promised in 1980 that there would be some changes.
What are the changes suggested by this government? To
patriate our Constitution, to entrench in it the basic freedoms
of Canadians, to provide a constitutional amendment formula
if the provinces cannot agree within three years, and to
enshrine the principe of equalization of wealth by the federal
government from the affluent to the less prosperous provinces.
Mr. Speaker, Canadian history is characterized by the
concept of sharing and of helping the various regions which,
for whatever reason, do not have an equal share of the natural
resources of our country. The members of this government
believe that it is the responsibility of the Canadian government
to see to it that no region of Canada be forgotten in the
sharing of the wealth or the advantages brought about by these
resources. Sharing is part of our history and it is this spirit of
sharing which will ensure the future of our country, sharing of
our poverty, of our troubles, sharing of our dark moments but
also of our joy and our wealth.
In 1867, Mr. Speaker, French-speaking and English-speaking Canadians entered into an alliance which granted certain
rights to the provinces thus created. In Quebec, for many
years, for almost a century, the main language used in business
and in industry was English. I learned English as a youngster
because we had Slovak neighbours who had just come to this
And these young fellows, Simurda, Kolesar, Milchak and
Kopil, could not speak French at that time. Their fathers
worked at the CIP mill in Gatineau, Quebec. In the 1920s,
1930s and 1940s the working language at the CIP mill, which
is just one mile from the capital city, was English. Why did I
learn English? Because I wanted to communicate with these
fellows. Today one is a prominent surgeon, one became a
colonel in the Canadian army, and the rest are working at the
CIP mill. They also wanted to communicate with their francophone friends and today these people are trilingual. They can
speak French, English and Slovak, and I do not think they are
any poorer because of that.
As I grew up, I continued to learn the English language and
I worked at the CIP mill during the summer months. Although
85 per cent of the workers were francophone, the working
language was English, the majority of the bosses were English
and the majority of the orders were given in English. That was
the way of life. We accepted that, and I do not think we had
any choice at that time.
However, the frustrations became more apparent in the
1950s and these frustrations resulted in a PQ member being
elected in our riding in 1976. Today the working language is
French. Yet 90 per cent of those people working at the CIP
mill are bilingual, and incidentally, 90 per cent of the anglophones working at the CIP mill are also bilingual.
The coats of arms with the inscription “A mari usque ad
mare” became official on November 21, 1921. On our coat of
arms there are two flags, the Union Jack and the fleur de lys
of France originating in the reign of Louis XIV, which recognized the two origins and the two founding cultures. What I
heard from the hon. member for Simcoe South (Mr. Stewart)
disturbed me greatly. I never thought it was possible to hear
these things in the House. If the hon. member and some of his
colleagues do not want to learn French, that is their business.
In fact, I respect their decision.
I have a story to put on the record. Once I was fortunate to
visit the Canary Islands. One night I was served by a Spanish
waiter with whom my wife practised her Spanish. I learned
that this young waiter could speak English, French, German,
Italian and Spanish. Hon. members might ask why he could
speak five languages. He told me he wanted to communicate
with the tourists and that he wanted to make enough money to
be able to come to Canada to live and become a Canadian
citizen. He is not alone, How many immigrants come to
Canada today knowing two, three, and sometimes four,
Some people feel that bilingualism is forced upon them. I
had an argument with the hon. member for Edmonton East
(Mr. Lambert) during a committee meeting and told him that
that was not the way we saw it in Quebec; for us, bilingualism
means understanding, communication, equality within the
country, and also acceptance. It is an acceptance of the fact
that there are some French-speaking citizens of this country
who want to be Canadians, neither French nor English, but
100 per cent Canadians.
Also, Mr. Speaker, I do not think there is one French-speaking member of this House who would refuse to speak to an
English-speaking member just because he or she does not
speak French. It is rather the opposite that occurs. Those who
want to make the effort, and there are some now who do, can
communicate with the French-speaking members of this
House. The Leader of the Opposition (Mr. Clark) has done it
as well as others, and they still do. During the 1980 referendum, I had the pleasure of hearing in the same forum the hon.
member for St. John’s West (Mr. Crosbie) and the hon.
member for Burin-St. George’s (Mr. Simmons) speak not of
Newfoundland, not of Quebec, but of Canada.
Is it known, Mr. Speaker, that these two hon. members from
Newfoundland are now learning French? I congratulate both
of them. The assurance that Canadians may use either French
or English anywhere in Canada, A mari usque ad mare, as I
was saying a while ago, is one of the responses to this threat.
In the past few years, Mr. Speaker, several young Quebecers
have gone west because of the economic instability and political uncertainty in their province. And I should like to quote a
headline in last Saturday’s issue of La Presse:
The exodus westward kept up in ’80:
30,572 QUEBECERS HAVE LEFT
This is not a fabrication, Mr. Speaker, it is a reality. I hope
that this exodus will end and that the results of April 13 will
not intensify it. Thanks to this charter which will include the
right to get an education in French, these young Quebecers
will be able to return to their home towns with children who
can speak the language of their grandparents.
In the past hundred years, many Quebecers have left their
province to go to the United States because they hoped to find
work and a future there. Some 1,600,000 Franco-Americans
are now living there and they do not all speak French. One of
the best examples I can give you is that of Tom Cousineau, an
“All-American” who is one of the best players on the Montreal Alouettes football team and who cannot speak a word of
Mr. Speaker, in the past few years the Canadian economy
has shifted to the West as in 1880 the economy was in
northeastern America. I would like our young people to have
the opportunity and the privilege to educate their children in
the language of their choice. Am I asking too much, Mr.
I think that as the result of that important reform, Canada
will be a country much more effective and better governed, a
country where governments at every level will be more receptive and more sensitive to the needs of the people. I think that
the rights of every Canadian should be protected under a
charter incorporating individual, political and democratic
rights. Even with our traditions, Canadians make a serious
mistake when they take those rights for granted. Such a
charter will protect us all individually and collectively from a
government anxious to impede or deny civil freedoms. Equality
before the law, protection against illegal arrest, freedom of
expression, of speech, of peaceful assembly, of thought and
religion are at the basis of a free society and the way to
provide those freedoms to society is to incorporate them in a
constitution which cannot be altered nor left at the mercy of a
parliament or a legislature.
I feel that the right of all Canadians to move about freely
from one province to another to find work must be guaranteed.
Fundamental rights, Mr. Speaker, cannot be bartered for
specific and varying claims from the provinces, If we wait for
unanimous agreement, we shall run into a wall, a deadlock;
that is what will happen, and the past proves it. Unanimity
might be reached tomorrow, or the day after, or perhaps never.
If we accept the April 16 proposal of the eight provincial
premiers, the country will be made up of ten provinces and, as
the leader of the opposition once said, it will be a community
of communities. Each province will have different rights: we
will be Ontarians, Albertans, Newfoundlanders, Quebecers
living in a country north of the United States and called
Canada. ls that what we want or do we want a country made
up of ten provinces, whose citizens are equal, who have the
same rights and privileges from the Atlantic to the Pacific, A
mart usque ad mare, Mr. Speaker? If we go ahead with the
proposed resolution now before us with amendments, there will
be ample opportunity in the near future to work in a Canadian
context with a view to finding an equitable solution to the
other constitutional problems.
Mr. Speaker, I want to close by repeating the words of the
Minister of Justice and Minister of State for Social Development, and I quote:
Canada is a beautiful land, but we have the opportunity of making it even
more fertile, and of leaving to our children and the children of our children a
country in which the diversity and the equality that must exist in our society are
To my mind, the constitutional debate of 1981 is a historical
time which, once the quarrels, the discord and the insults have
been forgotten, will be of benefit to all Canadians. We will
have a country that guarantees the weakest in our society
equal rights and protections the like of which are to be found
in very few democracies. Mr. Speaker, those words spoken by
the Minister of Justice and Minister of State for Social
Development are now part of the history of this beautiful and
great country, a country that will have grown through this
Hon. Jake Epp (Provencher): Mr. Speaker, in rising today I
intend to place before the House the various sections of the
omnibus amendment introduced earlier today to the public by
my leader. Before I do that, I think it important that we take
stock of where we are in terms of the debate on the Constitution thus far.
What we have to do in the remaining three days of this
debate before this matter is adjourned for a ruling by the
Supreme Court is to remind ourselves as members of this
House what in essence we are debating, We can get caught up
with the various details of the proposal before us, but I think
we have to come to grips with the issue that has now taken so
much time in this House of Commons.
Whether the proposals of the Prime Minister (Mr. Trudeau)
is of such merit that it will not only change the Canadian
constitutional framework but renew the federalism as it is
sometimes called, or whether we can achieve the same result
without the division and acrimony which now surrounds this
exercise is the question we have to address. Is there a better
What has to be kept in mind and cannot be said too often is
this: the Constitution of Canada, the fundamental law of the
country, should be changed in such a way that it unites
Canadians rather than becoming a source of division. A constitution, once it passes this Parliament, the provinces, the
Supreme Court and the Parliament in Great Britain, remains a
living document. It is not placed on a shelf somewhere as an
achievement and then remains there for everyone to look at
and to take pride in. Rather, it becomes a working instrument
for the federation, the country, If that working instrument is
flawed, then the integrity of the nation, its ability to function,
is put into serious jeopardy.
No matter what our different views might be on the best
approach, all of us must accept that the fundamental rule
under which we are going to operate will be that the Constitution is to be used by Canadian rather than be a source of
There are three things we try to do in our amendment. First,
we have attempted to define the necessary consensus required
here in Canada before we undertake the adoption of such
important matters as a charter of rights, the equalization
provisions, the amendment on resources and the way in which
we will change the Constitution in the future.
What we are suggesting is that Canadians want an alternative between the tyranny of unanimity on the one hand and the
tyranny of unilateral action on the other. We must address
ourselves to whether there is a middle ground, or compromise
solution which, while we might have our differences, will allow
the Constitution to work for Canadians in the future and will
reduce the division and acrimony which now exists because of
the constitutional exercise.
Second, we are offering a compromise position on the
amending formula which seeks to meet the concerns of both
the federal and provincial governments and which, unlike the
government’s amending formulae, represents a potential
Third, we are offering in our amendments a series of
amendments to the charter of rights to ensure that the document truly reflects the guiding principles and fundamental
values of Canadians. That is the context in which we bring
forward our amendments.
What must also be kept in mind is that had it not been for
the work of this party, this matter would already be out of the
House of Commons, out of the Senate, would have been passed
and be in England. What would have happened had this party
not taken its responsibilities is that a constitutional amendment would have been born in division, sent to England, done
an end run around Canadian institutions without the benefit of
either this debate or, what is more important, without the
Supreme Court of Canada being able to rule on its legality
before the matter was finally disposed of in this House. It was
because of this party and no one else that more time was
bought, We bought that time at some risk to ourselves. However, as our leader said on October 2, there comes a time when
an opposition party must stand up and defend that which it
believes to be right and oppose that which it believes to be
wrong, even though for the moment public opinion might be,
as it was back in October, that the Prime Minister’s proposal
had a lot of support across the country.
From the beginning we have opposed the arbitrary, unilateral, divisive approach of this proposed resolution. We have said
it before and we have to say it again: we want this Canadian
Constitution changed here in Canada and we want to have
consensus here in Canada.
Some hon. Members: Hear, hear!
Mr. Epp: We have a serious reservation over the effectiveness of the charter of rights and the proper operation of the
amending formula, both of which are being imposed unilaterally by a regional majority in this House of Commons.
We have doubts about the charter and the amending formula, not because of the principles of an amending formula or
a charter, but because they are being imposed and do not
reflect all the regions of the country, and I say this with all
sincerity to members opposite. No matter how you want to
explain it away, I say to you that in many parts of the country
this proposal, because of the unilateral element, is becoming
the source of serious division in the country,
The Prime Minister, as I have said before, says he is
justified because there cannot be agreement, and therefore he
must move ahead unilaterally. Let us consider that for a
moment, The Prime Minister, as he likes to do so often, has
placed matters in stark terms—not stark realities, but stark
terms. On the one hand he says unanimity does not work; you
cannot have the support or the agreement of the 11 governments, the federal government and the ten provinces. Speaker
after speaker on that side has been saying to us that the
Conservative Party wants unanimity. That has not been the
position. That is the position they would like us to take, but
that has not been the position of the party.
On the other hand, we have said that unilateral action is not
acceptable. The Prime Minister says: if you cannot get
unanimity, you then swing the pendulum all the way over and
accept the unilateral action. He says he is now justified in that
unilateral action because he cannot get unanimity. Surely
there is a middle ground. Surely there is an amendment to
which we can agree in this House.
We have proposed, under section 63, that such an amendment be made possible, namely, that, for the first time in
Canada, we define what is an adequate consensus. We suggest
that an adequate consensus could fall between those two
extremes, which would be a consensus composed of two-thirds
of the provinces enjoying at least 50 per cent of the population.
People could argue that the consensus should be wider. I
accept that argument. What I am saying is that you cannot
have a consensus which ignores or refutes either extreme. It is
because of that attempt by us to define consensus that we have
moved an amendment to Section 63.
Let us consider the amending formula itself. In order to
reach agreement, obviously both sides to an issue have to give,
to compromise somewhat. It has been interesting to note that
the premiers took that first step by putting forward an amending formula which, they believe, both reflects the consensus
and represents an amending formula that will work.
How many members of this House remember the day, and I
will not give the entire quotation, when the Prime Minister
asked if we had heard Premier Peckford say we could patriate
before he got jurisdiction over the offshore resources? He
talked about Premier Lougheed. He asked whether Premier
Loughecd would be willing to patriate with an amending
formula before he got jurisdiction over resources. He went on
to refer to the various premiers. I say through you, Mr.
Speaker, to the Prime Minister and members of this House
that the premiers did just that. What they did was to say they
are willing to accept an amending formula with patriation. It
is now up to the Prime Minister, I would suggest, there being
other issues which have to be discussed in terms of a renewal
of the federation, to sit down and see if that compromise
cannot, in fact, be found.
Let me refer now to the amending formula. I will not go
through all the flaws of the Victoria formula, but on running
through them very quickly one sees immediately that there is
to be a veto for two provinces, Ontario and Quebec. In a
federation there is to be a veto for two members; the other
eight do not have the power of the veto. Even if the population
of one of the two provinces falls below 25 per cent of the
national population, having once had the veto the province will
always has it. The unfairness of the situation becomes evident
I would ask members of the NDP, most of whom come from
western Canada—26 of their 32 members—when they go back
to western Canada, Manitoba, Saskatchewan and British
Columbia, do they say to their constituents they must accept
third-class status? Do they say they feel an amending formula
is right which creates different classes of provinces and
through that different classification of provinces different citizens? How do they defend that? They do not defend it because
The Victoria formula not only is outdated, it is wrong, it is
unfair and it does not work. If members opposite want to
continue with that formula, I say to them what they are
perpetuating is a centralized system which, in a sense, drives
the far reaches of the country away from the centre. For those
of us who want a strong national government it is wrong to just
give lip service to a strong national government without giving
the regions a reason to feel they are part of the central
decision-making ability. They must have that ability.
The hon. member for Kitchener (Mr. Lang). who is a
jocular fellow and does not see beyond his own nose, can see
this only in the perspective of his own province. I suggest that
he see it in the perspective of Atlantic Canada, in the perspective of western Canada and see it in the perspective of Canada
I have said earlier, as have other members of our caucus, the
Vancouver formula needed further refining. It has gone
through further refining. What it does is create an amending
formula whereby all the provinces are regarded as equal. It is
not only important that the provinces be regarded as equal, it
is important that Canadians be regarded as equal.
Some hon. Members: Hear, hear!
Mr. Epp: On the question of opting out, I hear members
opposite say some would opt out and we would have a checkerboard Canada. That is a very glib and easy term to use. Was it
the government of hon. members opposite which brought in
the Canada Pension Plan but also allowed for the Quebec
Pension Plan? Are hon. members opposite who come from
Quebec in the Canada Pension Plan or in the Quebec Pension
Mr. Clark: Checkerboard.
Mr. Epp: A checkerboard. Why? Was it because it was
convenient, because it worked, or because we would not have
had a Canada Pension Plan without it? Of course all of us
want a strong national government, but let us be realistic;
those kinds of checkerboards have existed in the Canadian
What is opting out? I think it is important for us to define
that as well because hon. members opposite are now using a
new term, which is “incremental sovereignty-association”. I
think that new term has been in vogue since last Thursday.
The provinces are saying that if the amending formula is used
to take powers away from the provinces—not powers granted
to them but powers agreed to at the time of confederation-at
that time and at that time only can they opt out of those
amendments, In dealing with such matters as resources or
provincial boundaries are hon. members saying, for instance,
that should the Labrador boundary be changed, Newfoundland should not be able to opt out of that kind of
So the one question which comes up is the question of the
charter of rights. I want to say here again—I have said it
before and other members have said it—that not just since this
discussion came up but back in the days of the Right Hon.
John Diefenbaker and in the days of the general conventions of
this party this federal party has endorsed an entrenched
charter of rights. That is not a new position. That is a position
this party has taken for a long time.
So the question then becomes, “what about the opting out of
the charter of rights?” Today the Canadian Press said that we
had reversed our position on the charter of rights with respect
to opting out. In our amendment we have said very clearly that
there would not be an opting out of the charter of rights. Why
not? Because I believe rights are universal. They apply to all
Canadians, and this is why there cannot be opting out. However, I think the point must be made that when the Vancouver
formula was discussed, a number of the provinces did not
accept the concept of an entrenched charter of rights, and so
they did not discuss whether the opting out of a charter would
be operative. Obviously for us in this House who are facing a
proposal which includes a charter of rights that luxury does
not exist. We have to deal with it, and so, as a party, we are
saying—and we have said it before—that rights are universal,
that they apply to all Canadians and that the opting out
formula does not apply. The opting out formula applies, and
always did, in those areas—and I emphasize this—where the
provinces have had rights since the time of confederation,
Some hon. Members: Hear, hear!
Mr. Epp: What about the question of safeguarding Canadian institutions? If one takes a look at clause 54, one sees a
number of areas which could be the subject of amendment.
How can there be amendment? We have said clearly that
unanimity should apply in three areas. Let us look at those
carefully. We believe unanimity should continue to exist with
respect to any change to the monarchy and the office of the
monarchy. In other words, all 11 governments would have to
agree to any change in that respect.
Second, we believe that unanimity should continue with
respect to what is known as the guarantee of members in the
House, depending on the number of senators when a province
has the so-called senatorial floor. In other words, the province
of Prince Edward Island would be protected and would not
have fewer members than it is now guaranteed.
Finally, and obviously, an amending formula should also
What about the process we put forward? I will not go into
the details of removing the interim amending formula. If there
is consensus, an interim amending formula is obviously not
needed. I know the hon. member for Lincoln (Mr. Mackasey)
likes to talk about the two years, but I do not think those two
years will bring any positive results. The reason I say that is
that, because of the acrimony in the country with respect to
federal-provincial relations, I think it will take much more
than two years to bring the country together again.
We have talked about a referendum and the fact that we do
not need a referendum. That amendment is before the House
as well. What we have said in terms of process is that we need
an amending formula which is fair. I have explained that very
quickly today. A package could be approved if two-thirds of
the provinces having at least S0 per cent of the population are
in agreement. That is consensus. That would rid us of the
spectre of unilateralism as well as the spectre of unanimity.
What about the Canadian charter of rights? We have
offered a number of amendments to the Canadian charter of
rights. One is with respect to the sovereignty of God. I noticed
very quickly that in its amendment the government has accepted the supremacy of God and that it will be brought forward
for a vote this Thursday. I commend the government for seeing
it that far, but I want to read the words because I think the
matter goes far beyond what the government has done, even
though, as I say, I commend the government. The words are
(a) the Canadian nation is founded upon principles that acknowledge the
supremacy of God, the dignity and worth of the human person and the
position of the family in a society of free individuals and free institutions, and
(b) individuals and institutions remain free only when freedom is founded
upon respect for moral and spiritual values and the rule of law—
As I take a very quick look at the government amendment, I
say that it embodies some of those aspects, but I feel that in
our society today we should also include the integrity and the
role of the family. I wish the government had also seen the
necessity to include that in its amendment as well.
What about the matter of property rights? I know that the
first argument which will be raised is that we are now in the
provincial sphere and that property and civil rights are provincial matters. What did the Quebec Court say? In a five to zero
decision the Quebec Court said that the proposal of the
government affects provincial rights. That being the case and
if this matter is going to the Supreme Court, why not include
property rights? I know hon. members opposite debated this in
their caucus. Was it a matter of the price of NDP support?
Members of the NDP have said time after time that they are
against property rights. They have said that it would be more
difficult to nationalize resource industries if property rights
were in the charter. What we have said is that property rights
should be in the charter, but we have also included the words
“in accordance with the principles of fundamental justice”.
Having checked, I believe that the matter of Prince Edward
Island would be covered because of the wording we have
What about the matter of the charter applying equally to
men and women? We have moved an amendment, and I am
glad that the NDP has seen the wisdom of it. We have done it
in the Senate, we have done it here and I am glad we are
following it again. We have moved an amendment whereby the
charter would apply equally to male and female persons. I
think it is important to note that in 1929 it was finally
recognized that women were persons and had equality.
Another important issue is the matter of the right to life, or
the so-called abortion question. In the committee and in this
Housethere was one general attitude, no matter which side of
the issue hon. members were on. It was that the charter should
not affect that issue and that the courts should not have the
power to come down on one side or the other, as was done in
the United States supreme court.
We believe that Parliament and the representatives of the
people should make those decisions on moral grounds. Therefore, we are moving the following amendment:
Nothing in this Charter affects the authority of Parliament to legislate in
respect of abortion and capital punishment.
We believe we have given to the House and to Canadians a
way out of the division, to reach consensus, to improve the
charter, and once we have a certain amount of consensus, to
bring the Constitution home.
I should like to take a look at the NDP amendments. They
have the one on equality of men and women and also the one
on aboriginal rights. When I take a look at my telegrams I see
that in no way do the aboriginal people of Canada feel that the
NDP is protecting their rights by its amendments Not one
group does. Why not? It was because they either wanted a
consent clause or to be part of the amending formula. The hon.
member for Oshawa (Mr. Broadbent)—
Mr. Clark: Speaking for the west.
Mr. Epp: I suppose he speaks for the west or for whoever.
He said to the Indian people, “I see why you feel you are not
protected, but I will move nothing which does not first enjoy
the approval of the government”. That was his position and
remains his position today. That is called parliamentary courage! The aboriginal question will not be resolved by a simple
amendment. It will not be solved because of its history and its
complexity. Therefore, the only way we will get to a satisfactory amendment is to sit down, either in a constituent assembly
or at a first ministers’ meeting, and bring in the aboriginal
people in order to come up with a compromise and a negotiated solution. It will not happen with the NDP amendment, and
it will not happen during these three days on the floor of the
I am sorry I do not have sufficient time to go through the
various nuances of the amendments, but in conclusion I say
that what we have proposed is consistent with our view of
federalism, namely, that change must come and we welcome
Mr. Broadbent: Not yet.
Mr. Epp: Yes, we do. I enjoy the interventions of the hon.
member for Oshawa. He made as much sense today as he ever
has, so we do not have to measure it for very longs
We believe that federalism is better served by a compromise
and by defining consensus, and once having done that, we can
improve the charter. If members of the government search
their consciences, I believe they will see the merits of the case.
I know from speaking to many of them that they are seeking
the way to get around the division which they see arising
because of the manner in which they proceeded. It is for that
reason and for Canada that I believe these amendments should
The Acting Speaker (Mr. Ethier): Order, please. I regret to
interrupt the hon. member.
Mr. Peter Stollery (Parliamentary Secretary to Secretary
of State and Minister of Communications): Mr. Speaker, I
have listened for the second time to the hon. member for
Provencher (Mr. Epp), and I must say that I am as confused
as I was the first time I heard him some months ago.
An hon. Member: As always.
Mr. Towers: So what is new?
Mr. Stollery: Hon. members opposite are laughing. I would
presume they are laughing at anybody who, at this point in our
undertakings, suggests that we should go to a constituent
assembly after five or six months of consideration. After the
spectacle of last week, the member suggested that we should
sit down with the first ministers once again. What can one
say? It is very difficult to take seriously the proposals of the
hon. member for Provencher. I am sure the Minister of Justice
(Mr, Chrétien) will deal with this more thoroughly in view of
the fact that the Conservative Party has tabled an omnibus
amendment which contains a series of proposals that they
know perfectly well cannot pass. In fact, during this debate
they have spoken out of both sides of their mouths. On the one
hand they said they were in favour of a charter of rights, and
on the other hand they put conditions which make it impossible for Canadians to have a charter of rights.
Some hon. Members: Oh, oh!
Mr. Stollery: This is the sort of spectacle to which we have
been treated since last October. Now the leading spokesman of
the Conservative Party suggests with a straight face that we
should go to a constituent assembly.
Mr. Baker (Nepeau-Carleton): You did not even read the
Mr. Stollery: As other hon. members have pointed out, it is
a great privilege to participate in this historic stage in the
evolution of Canadian constitutional development. Here we are
in 1981 taking, in the Canadian House of Commons, the long
overdue final steps toward becoming a complete nation. We
are succeeding in Canada at what few, if any, nations in the
world have achieved. When we pass this resolution, we will
have become a nation with our own Constitution which reflects
our federal nature in a manner consistent with a great nation,
the sixth or seventh most industrialized country of the western
world, with two languages, English and French, representing
two of the great cultures that have developed in the western
world since the fall of Rome.
Mr. Stevens: Who wrote this?
Mr. Stollery: We will have guaranteed future generations of
Canadians an important charter of fundamental rights and
freedoms, consistent with what we as Canadians believe our
country stands for.
Some hon. Members: Hear, hear!
Mr. Stollery: Our country stands for freedom of conscience
and religion, freedom of thought, belief, opinion and expression—
Mr. Stevens: How about property?
Mr. Stollery: —including freedom of the press and other
media communication, freedom of peaceful assembly and association. Canadians will be assured through the charter of the
rights to move freely across the country from one province to
another, take up residence and pursue employment in any
An hon. Member: On freight trains.
Mr. Stollery: I presume hon. members opposite do not
believe in these fundamental freedoms which are being guaranteed in the charter of rights. Certainly they think they are
pretty funny; I guess they will vote against them.
Canadians will have legal rights which include the right to
life, liberty and security; the right to equality before the law;
protection against unreasonable search or seizure, arbitrary
detention and imprisonment; protection against denial of counsel, undue delay of trial and cruel or unusual treatment or
punishment; protection against self-incrimination, and the
right to the assistance of an interpreter.
Mr. Stevens: We have all those.
Mr. Stollery: Canadians will be protected from discrimination on the basis of race, national or ethnic origin, colour,
religion, age, sex, physical or mental disability. Those Canadian citizens of the English or French language minority in a
province will have the right to educate their children in that
language wherever numbers warrant. The charter recognizes
and affirms the aboriginal and treaty rights of the aboriginal
peoples of Canada.
Mr. Taylor: What does it mean?
Mr. Stollery: The charter attempts to preserve and enhance
the multicultural heritage of Canadians. We will have done all
of this to continue the shaping of a free, orderly and humane
society, which is the envy of the world, without a civil war or a
bloody revolution. In other words, we have done all of this
peacefully. You would have to search long and hard, Mr.
Speaker, to find another people who can say the same.
Last week the eight premiers, after months of talk and
promises, once more attempted to hatch a stone. One of the
characteristics of this constitutional debate is the need for
those, like myself—and I see a member opposite shaking his
head—to continually restate the obvious. It is obvious that the
premier’s position would be unacceptable to any responsible
national government. I add that the Conservative proposal
presented tonight would be unacceptable to any responsible
national government. For example, it is obvious that you
cannot have a country if different rights for citizens apply in
different provinces of that country. Yet that is what the
Mr. Taylor: Why not?
Mr. Stollery: The hon. member opposite asks why not.
An hon. Member: That is what you do with your amending
Mr. Stollery: If the members opposite would show the same
courtesy I showed when I listened to their spokesman when he
presented his proposal a few minutes ago, I would appreciate
it. I think I deserve it. I have listened to this kind of nonsense
for five months and I have not taken the opportunity to be as
difficult with members opposite as they have been with me. It
is called freedom of speech, something members opposite say
we have already. But they were not so willing to give it to us
two weeks ago when we were not even allowed to debate the
question at hand.
Some hon. Members: Hear, hear!
Mr. Stollery: If the proposal of the premiers were accepted,
it would inevitably lead to disintegration of this country. They
propose that if a province does not like some part of the
charter, or if in the future a province does not like some
constitutional amendment adopted by a formula agreed to by
the provinces, then that province should simply ignore that
constitutional amendment or right. How could the country
possibly survive that? The premier of Newfoundland would
apparently like jobs in Newfoundland to be preserved for
Newfoundlanclers. If Ontario was in economic difficulty, the
next step would be that it might decide jobs in Ontario are to
be preserved for the residents of Ontario. Quebec, Saskatchewan and Alberta could easily decide the same thing. That is
what eight premiers of this country are proposing. It is not
far-fetched to believe that some provinces in this country
might not be enthusiastic about aboriginal rights. Well, they
decide that they will just opt out of that section of the charter
of rights so that the native peoples of Canada will have some
rights in some provinces and other rights in other provinces. As
I said, it seems characteristic in this debate to restate the
obvious, to show that that kind of approach to nation building
is doomed to failure.
Political rhetoric aside, I know that many members opposite, including members from western Canada, including members from Alberta, think that the constitutional proposal is not
such a bad one. What must they think of the antics of their
premiers? How can the premiers come out after all these
months with virtually the same negative position that they had
Mr. Taylor: Speak for yourself.
Mr. Stollery: How can they really say that Canadians
should not have the same rights in all parts of Canada? How
can they seriously propose that provinces should have the right
to opt out of any future amendment to the Constitution which
a provincially elected group of politicians happened not to
like? The greatest fraud of all perpetuated by the Tory party
lies in their not explaining that it is quite possible that, in the
future, a provincially elected government might hold quite
different views on a narrow constitutional question from the
majority of the people in the province. That happened last year
in Quebec, But the premiers tell us that they, and not the
people, will decide what rights the people in a particular
province shall have. I find it hard to believe that the majority
of the people in Manitoba are against the rights which are
outlined, or that the people of Saskatchewan or Nova Scotia
are really against the charter of rights. It is just not believable.
Nothing which has been presented to this Parliament in the
nearly nine years that I have been a member is as easy to
understand as this constitutional proposal which we have been
discussing for five months, or for rnuch longer. I would point
out to members opposite that the original debate on confederation lasted only five weeks.
Mr. Taylor: So what?
Mr. Stollery: This constitutional proposal is simple and
clear. In my opinion it is a good thing for future Canadians, a
good thing for this country. The members opposite obviously
The hon. member for Bow River (Mr. Taylor) has been very
vocal tonight. He is opposed to the charter of rights. He
Mr. Taylor: Speak for yourself.
Mr. Sollery: He has a great deal to say tonight. The
members of the Conservative Party have been tyrannizing the
House of Commons. They have made it impossible for members to speak. They have acted in what I consider to be an
anti-democratic fashion. Meanwhile, members of the public
have been saying to Members of Parliament, and possibly to
the hon. member opposite, “But how can you be against a
charter of rights for Canadians? How can you be against a
constitutional amendment proposal which is the only one that
all of the provinces have ever agreed on?” To those questions
the opposition have no answers for the Canadian people. For
six months or five months they have had no answer to the
Mr. Taylor: Wouldn’t listen to the premiers.
Mr. Stollery: They have proposed an amendment tonight
which is no answer to the Canadian people, for that has been
another characteristic of this debate: mindless opposition,
without ever giving anyone a reason why they are opposing
what they are opposing.
Mr. Taylor: That’s better than being a sheep.
Mr. Stollery: They all agree in the committee that the
charter of rights needed more strengthening. Then they
opposed passing it.
Mr. Taylor: They are gaining progress.
Mr. Stollery: How can anybody understand that? What a
ridiculous position. The official opposition apparently opposes
the only amending formula that the provinces and the federal
government ever agreed on, and proposes an amending formula on which even the provinces do not agree,
Mr. Taylor: Why didn’t you patriate the Constitution, then?
Mr. Stollery: It simply does not make any sense.
Mr. Taylor: Because its a Liberal MP and Liberal premier
in Quebec. That’s why. Why didn’t you patriate it, then?
Mr. Laniel: Your new friend!
The Acting Speaker (Mr. Ethier): Order, please. The hon.
member for Spadina (Mr. Stollery) has the floor.
Mr. Stollery: Mr. Speaker, I was in the Chamber on the day
that the petty, melancholy corporal’s guard of Conservative
MPs applauded the first speech of the hon. member for
Provencher. The hon. member for Provencher talked at length
about rights of all Canadians and then proposed a formula
ensuring that all Canadians will not have those rights.
Mr. Taylor: Baloney, baloney!
Mr. Stollery: Imagine, the irony; such an empty, frightened
flat remedy from a Member of Parliament for Provencher, the
constituency which twice acclaimed Louis Riel. The hon.
member for Provencher said at the time that Confederation
works. Well, the Quebec referendum apart, the problems of
increasing western alienation apart, the fact that for ten years
federal cabinet ministers have not been able to make decisions
without meetings with their provincial colleagues—including
the harvest of moss off New Brunswick which must be decided
by a federal-provincial conference; the temperature at which
Chinese barbecued meat must be sold in Toronto’s Chinatown,
which must be decided by a federal-provincial conference—apart from all of that, a situation has developed in this country
where a majority of the premiers are prepared to state their
position publicly that Canadians should not have the same
rights across Canada, including the right to work in other
How can the hon. member for Provencher claim that the
present rules of Confederation work? I can only presume that
when that vote was taken during the snowstorm in Quebec
City on March 10, 1865, in view of his attitude, the hon.
member for Provencher would have been one of the 33 members who voted against Confederation.
I think that the Canadian public should know that after he
delivered his speech here in the Chamber, explained it to us at
length, the importance of the debate, the need for every
Member of Parliament to be heard on the subject, the long
term importance of this constitution for Canadians of the
future, the hon. member for Provencher showed his interest in
this tremendously important debate by going off to South
Africa for three weeks. I believe the Canadian public—
Mr. Taylor: That is where they have entrenched rights.
Mr. Stollery: The hon. member says “shame” to me. Why
should he be ashamed of the public knowing where the leading
spokesman for the Tory party went after he delivered his
speech? Surely he is not ashamed of the fact he went to south
Africa, or is he? To study human rights, yes. To study the
charter of human rights in South Africa. Mr. Speaker, that is
an opting out position.
Mr. Taylor: You don’t mind them opting in, though, do
Mr. Stollery: I believe that the Canadian public has every
right to ask: why are the Conservatives afraid to unlock the
future? Why do they not dare take on the forces of provincial
self-interest in the name of the nation? Why do they say,
“Yes, I am for human rights; in fact, I am for a tougher
charter of human rights than you are,” and then put conditions
that make progress impossible? How can the Conservatives
say they want to discuss the economy and then filibuster their
own constitutional amendment for weeks? Why did they tyrannize the House of Commons for several days and make it
impossible for Members of Parliament to speak?
Mr. Taylor: To stop closure.
An hon. Member: Rule 75C.
Mr. Stollery: Why are they so bitter?
Mr. Taylor: We don’t like dictatorship.
Mr. Stollery: We know about the hon. member for Simcoe
South (Mr. Stewart). He sits right over there and he is there
tonight. He told us why he is against it. He hates French. But I
suspect that he was speaking for a small group-
Mr. Taylor: Another misrepresentation.
Mr. Stollery: —and not for the majority of members of
Mr. Taylor: Why don’t you tell the truth once in a while?
That’s another misrepresentation.
Mr. Stewart: A point of order, Mr. Speaker.
The Acting Speaker (Mr. Ethier): The hon. member for
Simcoe South (Mr. Stewart) on a point of order.
Mr. Stewart: Mr. Speaker, I challenge the hon. member
across and I ask for an apology. Nowhere in my speech did I
ever speak of hate of the French Canadians. I demand an
apology in this House, from the hon. member, which he should
offer if he is a gentleman.
The Acting Speaker (Mr. Ethier): Order, please. It is very
difficult to find a point of order. Perhaps the hon. member,
after reading the debate of the night, may seek to raise a
question of privilege, but certainly not a point of order. The
hon. member for Spadina.
Some hon. Members: No, no!
Mr. Stollery: Thank you, Mr. Speaker.
The Acting Speaker (Mr. Ethier): Order, please.
Mr. Stewart: A point of privilege?
The Acting Speaker (Mr. Ethier): The hon. member for
Simcoe South (Mr. Stewart) on a question of privilege.
Mr. Stewart: Mr. Speaker, what the hon. member just
accused me of, in attributing the word “hate” to me was
unparliamentary. As a member of this House, I hate no one;
and I teach that to my children. If this fellow over here with
The Acting Speaker (Mr. Ethier): Order, please. Again, the
hon. member has made his point, and I think it is clear, and
the whole matter is now clarified.
Some hon. Members: No, no!
The Acting Speaker (Mr. Ethier): Order, please. The hon.
gentleman for Spadina (Mr. Stollery) has expressed his views.
The hon. member has made his point and I think the Chair has
Mr. Taylor: Mr. Speaker, on a point of order, the hon.
member told a lie.
Some hon. Members: Order, order!
Some hon. Members: Withdraw, withdraw!
Mr. Taylor: It is a total falsification and he did it rudely.
The Acting Speaker (Mr. Ethier): Order, please I will hear
the hon. member for Bow River (Mr. Taylor) on a point of
privilege, but if it is to make accusations which I just heard,
that the hon. member has told a lie, that is not parliamentary;
but I will hear him on a question of privilege.
Mr. Taylor: Well, Mr. Speaker, on a point of privilege, then.
The hon. member for Spadina (Mr, Stollery) said that the hon.
member for Simcoe South (Mr. Stewart) had said that he
hated the French. The hon. member for Simcoe South did not
say that. I heard his speech. He did not say that, or anything
The Acting Speaker (Mr. Ethier): Order, please. Again that
is quite argumentative. One hon. member says something that
another hon. member has said. Where does that put the Chair
in this debate?
Some hon. Members: It is on the record.
The Acting Speaker (Mr. Ethier): The hon. member for
Simcoe South said to the House that he had not said that.
Now we will wait for the hon. member for Spadina. If he
wants to withdraw what he said, the Chair and hon. members
will accept that. If not, the hon. member for Simcoe South
would perhaps have a question of privilege to raise at the next
sitting of the House with Madam Speaker in the chair.
Mr. Baker (Nepean-Carleton): Withdraw it, Peter.
The Acting Speaker (Mr. Ethier): The hon. member for
Some hon. Members: Hear, hear!
Mr. Stollery: I am not clear on this point. If hon. members
The Acting Speaker (Mr. Ethier): The hon. member for
Bow River (Mr. Taylor) on a point of order.
Mr. Taylor: If the hon. member is going to withdraw one
untruth he had better withdraw his whole speech because three
quarters of it is—
An hon. Member: The truth hurts.
Mr. Stollery: Mr. Speaker, the truth seems to have touched
some raw nerves over there tonight.
Some hon. Members: Hear, hear!
Mr. Mayer: How would you know? You would not know it.
Mr. Stollery: For months I have listened to the speeches of
Mr. Gamble: You have not been here.
Mr. Stollery: I was here when the hon. member who just
spoke was out organizing the campaign to dump his leader. I
Some hon. Members: Hear, hear!
Some hon. Members: Oh, oh!
The Acting Speaker (Mr. Ethier): Is the hon. member for
York North (Mr. Gamble) seeking the floor on a point of
Mr. Gamble: Yes, Mr. Speaker. It is regrettable that while
the nation seeks to deal with a matter as significant as the
Constitution, we should hear comments of the kind we have
just heard, comments that are untrue, made with respect to—
Some hon. Members: Oh, oh!
Mr. Gamble: That may be amusing but on two specific
Some hon. Members: Oh, oh!
The Acting Speaker (Mr. Ethier): Order, please. I should
like to hear the hon. member on a point of order, if that is
An hon. Member: That means he has changed his mind.
Mr. Gamble: It does not mean anything of the kind. It
simply means that it is inappropriate that I should be quoted
as having endeavoured to do something which I did not
endeavour to do. As part of a speech—
Some hon. Members: Oh, oh!
Mr. Collenette: You are a failure!
Some hon. Members: Oh, oh!
The Acting Speaker (Mr. Ethier): Order, please. The Chair
fails to recognize a point of order. The hon. member for
Spadina (Mr. Stollery).
Mr. Stollery: Mr. Speaker, I hope that the time which hon.
members used for their interjections will not be taken from my
For months I have listened to the speeches of the Conservatives opposite. I have watched the faces opposite. They show
the scars of their national convention at which one third of the
delegates said that they favoured a leadership convention.
Faces opposite have grown longer and longer as they wonder
more and more if they are not being used in a skin-saving
attempt by the Leader of the Opposition (Mr. Clark). We
know that the Leader of the Opposition is desperate for a
Mr. Taylor: At least he is not a dictator.
Mr. Stollery: He will do anything to save his neck. He has
had it. He is finished. The only question remaining is whether
or not he will take the Tory party down with him.
Mr. Gustafson: But he is honest!
Some hon. Members: Hear, hear!
Some hon. Members: Oh, oh!
Mr. Stollery: The hon. member opposite says, “But he is
honest”. He admits that he is taking the Tory party down with
him. That is why the hon. member opposite sits opposite.
Mr. Nystrom: Stollery for leader.
Mr. Stollery: The Leader of the Opposition is about to go
down in history as the man who ran a national election
campaign in a world petroleum crisis against Petro-Can and is
now running his leadership campaign against the Canadian
Constitution. If you did not see it, you would not believe it!
I have been a Member of Parliament for nearly nine years.
Mr. Baker (Nepean-Carleton): Too long.
Mr. Kempling: You would never know it.
Some hon. Members: Hear, hear!
Mr. Nystrom: Resign.
An hon. Member: Motorcycling to Ottawa!
Mr. Stollery: I have been a Member of Parliament for
nearly nine years.
An hon. Member: Taxi!
Mr. Baker (Nepean-Carleton): You should do the decent
thing and resign.
Mr. Stollery: Since I have been here, this chamber, reflecting Canadian life as it has been in the 1970s, has seen many
debates on complex issues such as energy and economics,
including employment and inflation. We are now contemplating pension reform. These have been increasingly complicated
issues resulting in an exponential increase in the need for study
and knowledge by Members of Parliament. They are issues
which have reflected the revolution that started with the oil
crisis of 1972, a revolution that has put a stamp on the 1970s.
It is again an irony that this simple constitutional resolution
that many Conservatives say is unnecessary because the British North America Act works, is in fact a vital element in the
ability of the national government in Canada to govern and to
resolve the issues of energy, unemployment, inflation, pension
At the beginning of this debate the super patriot from
Athabasca stood here and shouted “O Canada” while the
provincial government in his province of Alberta closed down
his own town and put his constituents out of work.
Some hon. Members: Oh, oh!
An hon. Member: Lies.
The Acting Speaker (Mr. Ethier): Order, please. I regret to
interrupt the hon. member, but this allotted time has expired.
Some hon. Members: Hear, hear!
Mr. F. Oberle (Prince George-Peace River): Mr. Speaker,
since I last spoke in this debate—in this important, historic
debate—certain events have taken place. As my colleagues
have done, I want to join in paying tribute to members on all
sides of the House who spent weekends and many hours
serving the nation and serving Parliament in a committee
which did an exemplary job of presenting to the nation, in
living colour on television, the debate which now comes to
Certain events took place in Parliament itself. We have been
accused of all kinds of things, such as delay, obstruction and
filibuster. I happen to think that certain people in Parliament
learned an important lesson, that is, that this institution will
actually work in times of crisis and in times when the sensitivities of Canadians throughout the country are aroused over
matters that take place here. I will never apologize for my
contribution to whatever that was called, be it filibuster of
The Prime Minister (Mr. Trudeau) learned an important
lesson. He had to learn that the timetables he had set for
himself and for the nation in bringing about his version of
constitutional renewal, had to be sacrificed to the will of
We gained some important time; time for parliamentarians
to reflect on what is happening. We gained time for provincial
premiers and provincial legislatures to address the problem
and we gained time for all Canadians throughout the country
to become better acquainted with what is about to happen in
Parliament in this crucial period in our history.
I welcome the opportunity to speak once more. I thank my
colleagues on this side of the house, some of whom will not be
able to speak because there is not enough time and so I thank
them for giving me the opportunity to speak a second time.
Like every member in this House, I receive mail, not just from
my own constituents but from people throughout the country
who live in wonderment who are bewildered and confused
because they no longer understand what this debate is all
about. They no longer understand what the Prime Minister,
this great social reformer, this great institutional engineer,
wants to do with Canada. They have developed a certain
respect for the institution of Canada, the important and crucial components of which are the provincial governments.
People have learned to respect their provincial premiers. Our
provincial premiers came to Ottawa and participated in a
public dabate last weekend. The provincial premiers were on
one side and the Prime Minister on the other. There was a
breakdown of communications. People cannot understand for
the life of them why Canadians are diametrically opposed over
a matter which my friends on the other side say is so simple,
straightforward and so easy to understand. There is a reason
for this bewilderment and confusion. People participating in
this debate no longer address themselves to the questions
which were initially debated after the Quebec referendum
which prompted the urgency and indecent haste now demonstrated. The people of Quebec were provided with an opportunity to choose whether they still wanted to be part of this
confederation of this great nation, which Sir John A. Macdonald could see 114 years ago as becoming one of the greatest
in the universe, or whether their legitimate aspirations in terms
of industry, culture and religion would be better met with a
Certain things were wrong and were discussed at the time of
the Quebec referendum. Many of us travelled to the province
of Quebec. Several of the premiers who participated in last
weekend’s debate also travelled to Quebec at the time of the
referendum as did the Prime Minister and some of his ministers. They promised the people of Quebec there would be
fundamental and immediate action if they once again chose to
stay in confederation and played the important role which
Quebec had always played in the union.
We did not talk about a charter of rights. We did not talk
about the things which now predominate in the debate. In fact,
we talked about things much different than that. For instance,
we talked about such things as the reform of the Senate. We
talked about electoral reform. We talked about better equality
and regional reflection in some of the regulatory boards which
play such an important role in this country. We talked about
reform of the Supreme Court. We talked about reform of this
institution. We talked about restoring the role intended for
private members when this institution had its beginning, allowing them a meaningful contribution to the policy-making
process and allowing them to keep an effective check on what
the government was doing. But I ask hon. members whether
they have heard any speaker over the last five weeks talk about
these things. I say we have not.
We are talking now about a charter of rights which is to be
the solution to all problems which have faced this nation since
confederation. We no longer talk about the need and the
failure of the Senate to fulfil this crucial role intended for it
under confederation to represent minorities and protect them
from the tyranny of the majority inherent in a direct democracy process, such as that which is the usual role of the House of
Commons. The Senate was to bring a regional voice to represent regions in a different way from what Members of Parliament can do. As well, the Senate was to be a conciliator
between the central government and the provinces in cases
where there is an impasse in certain matters. The Senate has
never filled that role, and so we have these problems throughout Canada because there is no effective spokesman for legitimate regional concerns.
We talked about electoral reform. Why did we talk about
that? Obviously we talked about it because it is not right for a
government to have no representation in half of the country. In
the government there are only two representatives of one
province of western Canada. That is not a good situation.
There are better ways of electing a parliament to ensure that
the vote a government or a leading political party receives in a
certain region is adequately reflected in terms of representation in the House. It is not a healthy situation for the Official
Opposition not to be represented in one province which has
over 25 per cent of the population. That is why we talked
about electoral reform and that is why we made promises to
the people of Quebec during the referendum.
We talked about reform and equality in terms of regulatory
bodies. We talked about the inequity of having Supreme Court
judges appointed disproportionately from certain regions of the
country while other regions are almost completely shut out.
We talked about reforms to the procedures of the House of
Commons. That debate is no longer relevant nor is it going on.
We have now found another solution to the problems of
Canada. That solution is something termed by our Prime
Minister some time ago as “a new society.” We no longer
concern ourselves with the fundamental things that I have
talked about. We are now making some fundamental changes
in terms of a charter of rights, a new contract, which will
profoundly and fundamentally change the relationship between the individual and the state.
The problems which the Prime Minister is trying to solve
with his charter of rights are now new. The tensions and crises
we are trying to overcome are not new. They have been with us
since confederation. In terms of nationhood, 113 years is a
short period of time. It is fascinating to read our history. It is
fascinating to learn that Canada has lived in a sort of suspended state of disintegration ever since confederation. For
instance, in 1868, one year after confederation, one of the four
partners, namely the province of New Brunswick, held a
referendum and voted to leave confederation. It was not
satisfied with the results of the arrangement. My province of
British Columbia joined Confederation in 1871. We were not
an unorganized territory as were some of the other regions
which joined confederation later. British Columbia was a
Crown colony, as was Newfoundland when it joined. All of our
political leaders felt, as most of us now feel, that the interests
of British Columbia would be much better served through the
wider concept of a great confederation of which the then prime
minister spoke at the time. There were tensions even then. We
all know that British Columbia did not pay as much attention
to the fact that it should be properly represented in the Senate
as part of the deal to join confederation, such as the other
provinces did. We joined confederation on the promise of a
railway from coast to coast, reaching all the way to Victoria.
Few people today know that the Liberal government which
followed that of Sir John A. Macdonald tried to renege on that
promise to build a railway to British Columbia. In fact, an
offer of settlement was made to British Columbia to buy back
that promise for $750,000. B.C. rejected that offer and insisted
that the terms under which it joined confederation be met.
There were threats of secession even then. There was uneasiness in British Columbia. We felt we had been cheated and
that central Canada really was not serious in making us an
equal partner in confederation. So serious were the noises from
the west that Lord Dufferin was despatclted to British
Columbia to ease the tensions and to settle some of the
disputes that had arisen. He wrote the following to the Prime
At this moment British Columbia is obsessed by a frenzied sense, however
unreasonable, of injury and wrong.
This frenzied sense of wrong still exists in Canada today. It
exists in the west and is aggravated by the colonial attitudes,
which have developed over the years, of central Canada
toward the west. There is preferential treatment for consumers
in central Canada. They were protected by preferential freight
rates against high costs of east-west trade. There has been
preferential treatment for central Canadian businesses. They
were protected against the high costs of shipping to the west by
tariffs and trade restrictions.
So serious was the dissension in western Canada at that time
that one of the people who led the movement to bring the
colony into confederation, Amor De Cosmos, said in this
House as a Member of Parliament that he hoard, as we do
now, his province described as greedy and insulted in many
other ways. This same man said the following on February 13,
1879, and any member can go to the Library and look this up
at page 1079 of Hansard of that date:
I move for leave to introduce a Bill, entitled an act to provide for the peaceful
separation of British Columbia, seconded by any gentleman opposite who thinks
it proper to do so.
As this frenzied sense of wrong is still alive in British
Columbia, there is a movement of separatism which is gaining
momentum and is very much alive in British Columbia. We
should not ignore that. It is not a charter of rights and the
entrenchment in the Constitution of the cardinal principles of
democracy which are the hallmark of western democracies
everywhere which will allay and correct this frenzied sense of
wrong that we in the west still feel.
What is it about this charter of rights which causes all this
controversy? First, I do not believe that we who are elected to
this institution through the democratic process have a mandate
to make the changes which are contemplated in this charter of
rights. We do not have a mandate to surrender the supremacy
that rests with this institution in favour of another institution.
This place was created by men of history and by the people.
We are the servants of this institution, not its master. It is not
for us to decide on changes that should be made to it. I defend
my friend and colleague, the hon. member for Provencher
(Mr. Epp), when he says that changes as fundamental as those
that the Prime Minister has designed for us should be made by
the people themselves in another forum than here. When he
mentions the constituent assembly, that is the preferable way.
Indeed, that would be the way that most modern countries
which change their constitution would go about it.
We are now rewriting the Constitution completely, starting
from the beginning as if this were a new society somewhere on
the moon with no history, nothing to start from, and entrenching a charter of individual rights. As my friends on the other
side have said, it is reasonable to question what is wrong with
entrenching in the Constitution certain political and democratic rights which were, after all, the cornerstone of all the
ideological foundations of the parties represented here, with
the possible exception of one. The right and the liberty of the
individual is the cornerstone of the ideological base of my
party. I suppose it is the ideological base of what was once
known as the Liberal Party.
On the surface the objective of entrenching these cardinal
principles of democracy such as freedom of speech, freedom of
action, freedom of thought and freedom of religion is a very
laudable goal. I go further by saying there would hardly be a
member on any side of this House who would not fight to
protect to preserve the individual rights which are inherent in
these cardinal principles of democracy.
Every one of us is almost daily confronted by a constituent
who feels his rights have been offended. He asks for help in
going to battle. Once we entrench these rights in the Constitution, there will be a change. If an individual phones his
Member of Parliament because he has been aggrieved by an
act of bigotry, that member will no longer be able to stand in
this House to come to his defence. The member will probably
have to tell his constituent that his rights are now entrenched
in the Constitution, the Supreme Court has jurisdiction over
those rights and he had better go and fight for them. Of
course, the constituent will not know that it costs a lot of
money to have his case heard in the Supreme Court. So far the
Member of Parliament has been able to stand up for his rights
without having to send him a bill.
What is wrong with this charter of rights that we are about
to entrench in the Constitution is that it is not simply dealing
with the cardinal principles of democracy. It goes much further. That is what the debate the premiers were involved in
was all about. Not only does this charter of rights entrench the
cardinal principles of democracy, the political rights, it also
entrenches certain rights that are not within the jurisdiction
and mandate of federal politicians. It entrenches certain rights
of individuals in our country which are under the control of the
Is it not the right of provincial premiers to concern themselves about that? Should the premiers not ask what it would
be like after these rights have been entrenched in the Constitution? The language right, for example, says that a person is
entitled to be educated and to have his children educated
anywhere in this country in English or French. It is a laudable
goal to become at some future time a country that is truly
funcationally bilingual. This is no longer just a dream. The
young children in most European countries on graduation from
school are functionally bilingual. They converse in many languages, many of them are multilingual. However, to take one
language and throw out all the great things we have strived for
and pride ourselves in, including the concept of multiculturalism, and say that henceforth we shall be a bilingual and
bicultural country is something that certainly offends me.
Not having had the privilege of being born in this country, I
chose Canada and I thought I came here under certain conditions, Approximately one-third of our people living here today
arrived in this country believing they did so under certain
conditions, one of which was that this was a multicultural
country. That is no longer so.
That is not the matter about which the premiers are concerned. They are concerned about the fact that there could be
certain areas in eastern and western Canada where, as a result
of the entrenchment in the Constitution of these rights to
education, the taxpayers will have to build French or English
schools, as is the case in the province of Quebec. That may not
necessarily at that particular time be one of their priorities.
There are small communities in the constituency I represent
that do not have water or sewer; they do not have a hockey
arena, a library or a cultural centre, and those may be greater
priorities at a particular time. We are leaving a certain
vagueness in this whole scheme because we say “where numbers warrant”. We say we are going to be very reasonable
about this. However, it is the Supreme Court that will decide
what the numbers will be. Will the numbers be 5, 7, 15 or 500
children? No one knows. The premiers and the taxpayers must
know because they will have to pay the bills.
It is just not good enough for people opposite to say that
because of a concern which has been expressed about certain
aspects of this charter of rights that we hate the French. Why
is it that the premier of the province of Quebec, newly elected
with a large mandate, is against this charter of rights? Is it not
a strange twist of fate that it is precisely for the same reason
the people of Quebec who have acquired certain advantages
and gained certain momentum in restoring a certain cultural
integrity in their province now feel oppressed by the very
person who portrays himself as the king and the saviour of the
legitimate rights and aspirations of his compatriots?
These are the things that are wrong with this charter of
rights. It is wrong to believe that just because we now entrench
in the Constitution a charter of rights and give the Supreme
Court jurisdiction over the rights of individuals that all will be
solved and no one will ever again be discriminated against.
Some members on the opposite side have stood up and said
just that. One minister stood the other day and said: “Is it not
beautiful to know that we shall wake up one morning, having
done this deed here in Parliament, and there will never be any
discrimination in this country again?” How naive can those
people be? Do they really believe you can legislate the attitude
of people, that you can prevent bigots from acting like bigots
by simply making a law? Of course you cannot.
We have a great history in this country, a history of pride,
freedom and a belief in all that is beautiful and great brought
to humankind through democracy. Why is it so urgent that we
now entrench a charter of rights? What is so wrong with our
Constitution or so wrong in the country that we have to take
these very dramatic steps?
What is wrong is that we have a Prime Minister who has a
certain vision about his country that does not coincide with the
mainstream of life and does not coincide with the history and
the tradition on which this country was built. He is not so
concerned about a repetition of certain events which took place
in 1970 when he imposed the War Measures Act. He is not so
much concerned with that. What our Prime Minister wants to
do, and he has said this in many speeches to his fellow
Canadians in the province of Quebec, is to attain two objectives through his charter of rights. To do so he is prepared to
sacrifice everything else that forms part of this constitutional
The Prime Minister believes in a unitary state as opposed to
a confederate system. He wants to lay the foundation to allow
for the evolution of a unitary system of government in this
Secondly, as he has said on so many occasions, he is going to
bring the French fact in Canada beyond an irreversible position. He is devious and sinister in the way he is going about
that. I am not saying this is bad or good, but those are the two
things the Prime Minister has in mind in respect of this
charter of rights, and that is why he, with all the political skill
and deviousness he possesses, has managed to divert this
debate away from that about which we should be talking to a
discussion of nothing but his charter of rights.
Is the entrenchment of my freedom of speech in the Constitution going to redress this frenzied sense of wrong which
exists in the west, this threat of separatism? Of course it will
not. Is the protection against discrimination on grounds of
race, religion, colour and all these things going to redress this
frenzied sense of wrong in the west? Of course it is not.
Let me conclude with this comment. I would tell you what
this constitutional debate we are engaged in and now completing will do. It will destroy the dream which has been laid out
for us by Sir John A. Macdonald.
The Acting Speaker (Mr. Ethier): I am sorry to interrupt
the hon. member but his time has expired.
Some hon. Members: Go ahead.
The Acting Speaker (Mr. Ethier): The hon. member may
continue with unanimous consent.
Some hon. Members: Agreed.
Mr. Oberle: Thank you, Sir. I do not wish to abuse the
courtesy of my friends, so I will conclude. What I am saying is
that if we continue with what we are doing, in ignoring the real
things we should be talking about, namely, the changes to our
constitutional framework, we will destroy the dream held out
to us by Sir John A. Macdonald when he said we are a great
country and we shall be one of the greatest in the universe if
we preserve unity in this country and if we preserve confederation. We shall sink into insignificance and diversity if we suffer
to be broken. There is a message there. I have a great feeling
that if we continue with what we are doing right now, we shall
suffer the breakup of our great country.
Hon. Jean Chrétien (Minister of Justice and Minister of
State for Social Development): Mr. Speaker, with the permission of the House, may I point out that it is 9.59 p.m.? I could
begin my speech tomorrow.
The Acting Speaker (Mr. Ethier): Permission has not been
Mr. Chrétien: Mr. Speaker, I know the hon. member For
Edmonton wants my wisdom very badly, especially during
those hours when we have to deal with some of the propositions I will have great pleasure dealing with tomorrow, because
some of them are rather funny.
The Acting Speaker (Mr. Ethier): I regret to interrupt the
hon. minister, but it is now ten o’clock.