Canada, House of Commons Debates, “Resolution Respecting Constitution Act”, 32nd Parl, 1st Sess (19 February 1981)


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Date: 1981-02-19
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 7471-7479.
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COMMONS DEBATES — February 19, 1980

[Page 7471]

[Translation]

THE CONSTITUTION

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 thereto.

Mr. Serge Joyal (Parliamentary Secretary to President of the Treasury Board): Mr. Speaker, I rise before you today to take part in this debate somewhat like those enthusiastic and fervent pilgrims in the Middle Ages who were returning from Mount Saint-Michel, from the Ganges or from Mecca. During the sittings of the Joint Committee on the Constitution which lasted three months and a half, I had the opportunity to listen, to consider and to ponder on each and every point and objection; I did reconsider freely whether or not I should belong to this country. The witnesses who appeared before the committee did us an invaluable service by allowing its members to get out of their cities and of their villages to learn during all those sitting hours about our historical difficulties and advances, about the many facets of the people of different cultures who inhabit this huge land of ours. How could we thank the 314 individuals who, on behalf of their group, came to openly state their grievances, their expectations, their vision of this country which they would like to see fairer, more generous and more tolerant? The members of the committee had a common characteristic: they were hard working people with a keen sense of responsibility. During the 300 sitting hours the public could appreciate to what extent the members of the committee discharged to the best of their ability and in all honesty, their responsibility to assist the House in making an historic decision. I am grateful to each of them for having shown us the frustrations of Westcrn Canadians as well as the expectation of our founding people that this country will again become a land of brotherhood and sharing. I am deeply grateful to my colleagues in Parliament and to the honourable senators for having entrusted me with those privileged duties which was essentially to help them to the best of my ability discharge their responsibilities.

[English]

I should like to thank especially the hon. member for St. John’s East (Mr. McGrath) who is in the House today and, of course, the hon. member for Lincoln (Mr. Mackasey), both of whom, on behalf of their parties, have maintained that confidence and that trust in the chairmen. I think if we are in a position today to debate such a proposed resolution, it is due in most part to their respect, their trust and their ability to express their opinions in a way which helps the Canadian people.

Some hon. Members: Hear, hear!

[Translation]

Mr. Joyal: I should now like to share with the House what lessons I have learned. This country, Canada, Mr. Speaker, was not built in ease and euphoria. The French settlers who came in the seventeenth century had to fight against a hostile environment at the cost of hardships difficult to imagine today before taking root in this land. In the eighteenth century, confrontation with a new occupant was a constant source of political tensions.

The rebellion of 1837 and the struggles for a responsible government took up the nineteenth century until confederation. Since 1867, Canada has witnessed a slow and lengthy process of political evolution. Step by step, it has won its autonomy, its independence, its sovereignty. Today, we have come to the last stage of the old era and the start of the new. We now face a choice, a fundamental one. We must decide what kind of country we want to build. That choice cannot be easy or devoid of growing pains. No country in the world has ever won its official independence without difficulty, without debate, without emotion, without passion. Those who would imagine that the Fathers of Confederation conceived the federal union of this country in easy discussions, in social gatherings at Charlottetown or at Quebec should read again those pages of our history. Those who would believe that the people took an active part in the efforts that led to the birth of Canada are totally mistaken. In fact, the public was almost completely excluded.

On November 7, 1864, Antoine Aime Dorion, the hon. member for Hochelaga, my predecessor in this House, denounced before his electors the secret nature of the confederation debates saying, and I quote:

You already know that a conference was held in Quebec City . . . The highest interests of the country were discussed at meetings held in camera . . . The lack of any official statement on the proceedings of the conference, the complete silence of the ministers of Lower Canada about the details of the coming conference seem to indicate that this measure is to be rushed through without consulting the people, without even giving them time to study its provisions and evaluating its bearing, its effects.

Today, as we debate this resolution, after 300 hours of proceedings under the light of television cameras, after inviting Canadians from every part of Canada to share their views and opinions with us, we certainly cannot make serious comparisons with the procedures followed by our predecessors.

[English]

I might add that during the 106 committee sessions the opposition spoke for two thirds of the time as follows: the official opposition used 43 per cent of the time; the New Democratic Party 22 per cent; the Liberal Party 34 per cent.

[Page 7472]

The mandate of the committee was twice extended at the request of the opposition; first until February 6 and then until February 13. Second, the opposition agreed that this was sufficient time for the committee to complete its work. Lastly, at least three million citizens were able to watch the debates, live or taped, on television.

[Translation]

The decision we are about to make for the future of our country after more than five months of sustained political debates will appear very clear to all Canadians. What does it involve? Its first objective is to correct historical anomaly, the last remnant of an obsolete colonial status. Canada is one of the seven most important countries in the western world. Next June, it will host the annual conference of the big seven and will sit with the United States, Japan, France, Great Britain, Western Germany and Italy. However, it has less control over its constitution than Vanuatu, the Seychelles or Santo Domingo.

[English]

Those who do not believe what I have just said or who think it is far-fetched only have to read the conclusions in the report of the foreign affairs committee of the British parliament to realize that all imperial pretensions are not dead. I am referring, of course, to the view of a few hon. members and not to the view of the British government. Yet the fact remains there are a few who believe that Canada remains at the mercy of the Parliament which is not responsible, directly or indirectly, to the citizens of this country.

[Translation]

Several people, when the present move was initiated, concluded that it was meaningless and would not significantly alter the status of Canada. If the purpose were only to rid once and for all the minds of some parliamentarians of our colonial past, it would still be worthwhile. But we cannot reject all the responsibility for our present state on our mother country. It is because of our failure to agree on the means to control the fundamental changes in our Constitution that Westminster retained its colonial trusteeship. As a matter of fact, in I931, when the Parliament of London, through the Statute of Westminster, wanted to grant its former colonies their constitutional independence, Canada, and Canada only, asked for that power to remain in London, since it could not agree on an amending procedure for the Act of 1867. This is what Mr. Ernest Lapointe, the then minister of justice, confirmed in the House on May 11, 1931, and I quote:

In that matter the imperial parliament is not really a dominating power: it acts as a trustee and as a guarantor, and merely gives effect to the will of the Canadian people.

And let us not think that the 1867 Constitution has never been amended. Quite the contrary. Since 1867, Westminster has brought in 21 amendments. How were these amendments made? In three cases, 1893, 1927 and I931, Westminster amended the Constitution on its own to allow for a technical reform. In all other instances dealing with major changes, a request was presented either by the Canadian government, as in 1871 and 1875, or, since then, by the Canadian Parliament. Never has the British parliament refused an amendment on the basis that provincial consent had not been obtained. On the other hand, never has the British parliament accepted an amendment requested by a province. Thus in 1868, when Nova Scotia wanted out of confederation in accordance with a unanimous resolution by its assembly and a petition by 36 of the 38 assembly members, Britain replied that the Government of Canada was the only representative of the interests of the confederation before the imperial parliament. Only in one instance, in 1907, did the British parliament modify the terms of a resolution passed by the Canadian Parliament, The Canadian amendment was to increase federal subsidies to the provinces as a final and unchangeable rule, but London removed that condition because in the opinion of Sir Winston Churchill, then parliamentary under-secretary for the colonies, it seemed totally inappropriate in the legislation since Parliament could not relinquish its sovereignty and its power to amend acts.

Since 1931, spokesmen for the British government have always considered that Westminster was duty bound to agree to the requests of the Canadian Parliament. Thus, in 1940, when the unemployment insurance amendment was debated in London, the British Solicitor General stated, and I quote:

[English]

We square the legal with the constitutional position by passing these acts only in the form that the Canadian Parliament require and at the request of the Canadian Parliament.

My justification to the House for this bill—and it is important to observe this—is not on the merits of the proposal, which is a matter for the Canadian Parliament; if we were to embark upon that, we might trespass on what I conceive to be their constitutional p0Siti0n. The sole justification for this enactment is that we are doing in this way what the Parliament of Canada desires to do.

Some hon. Members: Hear, hear!

Mr. Joyal: He continues:

I do not know what the view of the provincial parliaments is—it is sufficient justification for the bill that we are morally bound to act on the ground that we have here the request of the Dominion Parliament and that we must operate the old machinery which has been left over at their request in accordance with their wishes.

[Translation]

In 1943 when Quebec objected to the adoption of the amendment aimed at redistributing the seats in the House of Commons, the Secretary of State for Dominion Affairs, Mr. Atlee, declared, and I quote:

[English]

I have no information as to any province objecting, but, in any case, the matter is brought before us by an address voted by both Houses of Parliament, and it is difficult for us to look behind that fact.

[Page 7473]

[Translation]

Again in 1946, when Quebec objected to an amendment to change the principles of representation in the House of Commons, former Canadian prime minister Viscount Bennett stated before the House of Lords, and I quote:

[English]

Canada is the only one of the Dominions in which a party majority can amend the Constitution. They cannot amend it directly but they do it indirectly, because we have agreed that we will consent to pass any legislation that they may petition to have passed by this Parliament.

[Translation]

Similarly, in 1949, when an amendment enabling our federal Parliament to amend its own constitution was moved, no mention was made to the British Parliament that certain provinces were fiercely opposed to that amendment. The Secretary of State for Commonwealth Relations said, and I quote:

[English]

The bill is cast in the terms of the address adopted by the federal Parliament of Canada and, ofcourse, we are all ready to do what they desire.

[Translation]

When in 1960 we had before us the amendment providing for compulsory retirement of Superior Court judges at age 75, the Secretary of State for Commonwealth Relations declared, again I quote:

[English]

—legislation by the United Kingdom Parliament is still necessary where the subject of the amendment is one which affects the interests both of the federal Parliament and the provinces.

We are therefore to all intents and purposes acting in what is a formal capacity for the Canadian Parliament in a matter which is solely its concern. In accordance with long-established precedent, we refrain from discussing the merits of a Bill submitted to us amending the British North America Acts when this Bill has been introduced in consequence of Addresses to Her Majesty adopted by both Houses of the Canadian Parliament.

[Translation]

Clearly, Mr. Speaker, the position expressed on many occasions by spokesmen of the British government cannot be misunderstood. Indeed, it is crystal clear. On 21 occasions, or each time it was asked to do so, the British Parliament agreed to a request of the Canadian Parliament without concerning itself with knowing whether the provinces had been consulted, whether they had expressed their agreement or whether they had disagreed.

Indeed, the Canadian Parliament is not required to consult the provinces and get their agreement before submitting a request to the British Parliament. The Chief Justice of the Manitoba Court of Appeal explained this quite well and substantiated it in an elaborate judgment given on February 3 last. In any case, long before this judgment was given, Canadian experts had already recognized this fact. For instance, in 1935, Professor Kennedy appeared before the Special House Committee on the Constitution of Canada and said the following on this subject:

I do not believe that the Parliament of Canada has the least legal obligation to consult the provinces in the process. This might be very good policy, but policy is not law. I believe that the Canadian Parliament can submit any request to the British Parliament.

This view was shared at this time by Professor Norman Rogers. It was also repeated before committee members by Professor Gil Rémillard, who had been invited at the suggestion of the official opposition, and by Professor Gerard Laforest, invited at the suggestion of the government party. This same view was expressed in the House by the Hon. Ernest Lapointe in 1940, by the New Brunswick premier, the Hon. Mr. McNair, in 1950 at a federal-provincial conference, and more recently, in 1978, by the Hon. Ron Basford and the Hon. Marc Lalonde. There is therefore no obligation for the government or the Canadian Parliament to consult the provinces or to obtain their consent before making a request to the British Parliament. The Manitoba Court of Appeal confirmed this once again on February 3 last. In the present context, to amend the Canadian Constitution, the Canadian Parliament can therefore submit a request to the British Parliament which, on 21 occasions since 1867, has always agreed to such requests without taking a position on their contents. Mr. Speaker, some people have thought, quite wrongly, that until now, the rule of unanimity applied. Again this week, hon. Senator Tremblay, whose integrity and commitment I respect, stated on the state-owned network that unanimity is the rule for amendments to the Constitution. According to the general impression, the provinces are better protected by the status quo which would be guaranteed by the so~called unanimity rule. According to this rule, all provinces must agree to any constitutional change. Unfortunately, as we have seen, this belief is not substantiated by our political history or the constitutional precedents.

In fact, we now have a constitutional amendment procedure which does not require the unanimous consent of the provinces, but a simple majority vote of the members of both Houses of the Canadian Parliament. Such are the teachings of history and jurisprudence. But, in my opinion, this cannot last if we want to truly really and thoroughly reorganize our federal institutions and adapt our Constitution to our present needs and future aspirations.

The Canadian Parliament must not retain this unlimited power to amend the Constitution of Canada by itself.

The rule of unanimity is an illusion behind which the provinces have taken refuge, Quebec in particular. It was not realized that this protection was a myth. Through its rejection of the amending formula in Victoria in 1971, Quebec has laid itself bare and is now shouting “rape!” That is what wc must correct. The present resolution is doing just that by writing into the new Constitution the provinces’ formal right to express their views on all future amendments. What this resolution sets out to do is take away from the federal government the power to amend the Constitution on its own by going to Westminster and giving the provinces the right to propose and

[Page 7474]

approve any change that might affect their power. Far from taking anything from the provinces our action will confirm the partnership status of the provincial governments. The level of government that is actually losing the most power in this process is the federal Parliament.

The resolution under consideration also contains a provision that is quite fair and reasonable. In the present circumstances, as we have seen, when the federal government and the provinces disagree, the federal government alone may decide to act. From now on it will no longer have that power; it will have to come before the Canadian people which will settle the question following a national referendum.

Many people have raved about the newness and originality of that proposal. Here again, our history shows that this idea was put forward, at least since 1864, by none other than one of my predecessors in Hochelaga, the Member of Parliament, Antoine Aime Dorion. He wrote the following in I864, and I quote:

When it is a matter of doing nothing less than rebuilding the Constitution, laying down a new foundation for the political structure, the people, whose interests and prosperity are affected by such changes. must be consulted.

Dorion was already calling for a referendum. Later, in 1927, the Canadian League suggested the same solution before the Special Committee on the Canadian Constitution, and I quote:

[English]

That no repeal or alteration of any of the provisions of Sections 91 and 92 or of the basis of representation in the House of Commons or of the Senate shall be valid unless approved by the legislatures of a majority of the provinces or by a referendum supported by a majority of the total vote and by a majority of the voters in a majority of the provinces.

[Translation]

Two years later, in I929, Brooke Claxton, who was to become a minister in the cabinets of Mackenzie King and St. Laurent, took up the same idea anew, and I quote:

[English]

Keeping in mind these considerations, it is suggested that power be given to the federal government to amend the BNA Act by Federal Act with the consent of the legislatures of five provinces or alternatively at the option of the federal government, a favourable vote on 2 referendum of the majority of votes in the country and in at least five provinces.

[Translation]

That was in 1929, Mr. Speaker. That same year, the Manitoba Free Press took a stand and published the following:

[English]

The Dominion parliament, we suggest, should, subject to limitations covering the rights of minorities, have the power to pass legislation amending the BNA Act; and this should come into effect unless a certain number of provinces, by their governments, ask for a vote of the people. In that event a national referendum should be held, ratification being contingent upon a majority vote over the whole Dominion and in five of the nine provinces.

[Translation]

The suggestion that the Canadian people should be called upon to take decisions in difficult situations is not new. In 1916, the Manitoba legislature intended to enforce its legislations by way of referenda. Newfoundland joined confederation in 1949 following a referendum. In May of last year, Quebec held a referendum when it tried to change the nature of its ties with the rest of Canada. Last fall, the Alberta government introduced a bill to authorize, if needed, the holding of a referendum. Whoever claims that the concept of a referendum is entirely foreign to the Canadian constitutional reality is ignorant of our tradition, both past and present. Who can object to the Canadian Parliament holding a referendum to decide upon a basic issue when the provinces intend to use such a mechanism either to join or leave the Canadian federation? Who can object to the Canadian people deciding, when the 11 first ministers fail to agree on the basic changes which our institutions and legislations require? Britain itself, when it considered joining the Common Market in 1971, held its own referendum.

The suggestion that such a mechanism is inconsistent with our tradition is absurd. In today’s world, a referendum is the only way to associate the will of the people with changes which have become necessary. That is obvious. In holding a referendum, the Canadian Parliamcnt is asking the Canadian people to exercise the power to decide upon whatever changes are wanted. Theirs will be the last word. Those changes, Mr. Speaker, have become imperative. As a matter of fact, Canadians have for a long time deplored the colonial status of their Constitution. In 1931, Henri Bourassa made the following statement in the House, and I quote:

It is not without a certain amount of shame that I realize that in this year 1931, Canada is still lagging behind all the other dominious in the exercise of unreserved autonomy.

In 1949, the then Prime Minister of Canada, the Right Hon. Louis St. Laurent, made the following statement at a dinner given in his honour at the Royal York Hotel by the mayor and council of the city of Toronto, and I quote:

We Liberals also feel that we should find a way to amend our Constitution right here in Canada. This will not be easy. We do not want a Constitution that is too rigid, however we want to be sure that our Constitution includes the most complete safeguards for provincial rights, the rights of both official languages, and all other historical rights that are the sacred heritage of our national union.

Such, Mr. Speaker, is the purpose of our efforts. We want to fulfil now the hope expressed for so long by ensuring that our Constitution protects the rights and freedoms of all Canadians. Canadians generally have a feeling that the basic rights and freedoms are very well protected in Canada. However, even though Canada maintains a good record as compared to other nations, our history is not beyond reproach. The period before confederation shows many instances of discrimination, often violent. Some of the more obvious cases were the genocide of Beothuk Indians in Newfoundland, riots between Orangemen and Roman Catholics in Bytown in 1848 and, in the Toronto of 1858, anti-French and anti-Catholic prejudice, the acceptance of slavery, as well as obvious prejudice against negroes later on.

In I857, the attitude prevailing then was reflected in the Ontario legislature when Colonel J. Prince described the

[Page 7475]

Negroes as follows, and I quote from his remarks in a Canadian legislature:

—the greatest calamity ever known in the two evil counties I have the honour of representing.

The immigration policy of the new Canadian nation in 1867 was also discriminatory in nature favouring as it did the British and Europeans as opposed to Orientals and others. The thousands of Chinese who came to British Columbia in the 1880s were slaves to all practical purposes, to the extent that Chinese companies literally sold them under contract to Canadian mining and railway companies. Their living conditions and the general manner in which they were treated were simply not human. Let us not forget that the Dominion Elections Act of 1885 provided, and I quote:

The expression “person” means any male person, including an Indian, and excluding a person of Mongolian or Chinese race;

No later than in 1975, there were 20 Canadian immigration officers scattered across the United Kingdom whereas there were only four in the New Delhi office to deal with all the applications filed by Indian applicants In 1955, the Minister of Immigration stated the following, and I quote:

I do not believe that any immigrant, wherever he comes from or whatever his skills, is worth a Canadian baby because the former must learn to be a Canadian whereas the latter is a Canadian from the very beginning.

During the depression years, the Ku Klux Klan was strongly rooted in some parts of Saskatchewan, Alberta and Ontario. The Regina riot in 1935 and the general strike in Winnipeg provided many cases of violation of civil liberties. Later on, during World War II, 23,000 Canadians of Japanese origin were interned in various parts of Canada under the War Measures Act, even though 75 per cent of them had been born in Canada and many of them had been genuine Canadians for several generations. At about the same time, Jehovah Witnesses were outlawed; in 1940, 29 members of this sect were sentenced to one year in jail.

In 1953, 1955 and I957, the Quebec Padlock Act, the regulations restricting the distribution of religious literature, were challenged before the courts. Not so long ago, in 1974, in the Laval vs Bédard case, the Supreme Court ruling clearly emphasized the weakness and flimsiness of the Canadian Bill of Rights which everybody thought was adequate protection. That is what must be prevented today. Our own history is not beyond reproach. Our statutes are not stringent enough. We know about the Indian Act and its discriminatory provisions regarding Indian women; that must be kept from happening in our Canada of the future and that is what the proposal before us is all about.

In Manila, in the Philippines, Pope John Paul II said on Tuesday and I quote:

Nothing can justify a breach of human rights even in exceptional circumstances.

Governments are there, he said, to serve the people and protect their dignity. They cannot pretend to serve the people’s interests when they do not respect basic individual rights.

Human rights are paramount.

—strongly claimed the Pope.

What does the official opposition suggest? That the charter of rights and freedoms be referred to the provinces? But this would simply kill our proposal. Let us recall again the statements made last fall by the premiers: seven of them strongly opposed the entrenchment ofa Canadian Charter ofRights and Freedoms in the Constitution of Canada. and now this is what the Premier of Manitoba had to say:

[English]

—while Manitoba actively supports the protection of human rights it opposes the entrenchment of a charter of rights on principle.

[Translation]

The Premier of Saskatchewan, the Hon. Allan Blakeney, a man whom every member in this House would have thought to be all out in favour of human rights has said and I quote:

[English]

Saskatchewan is not in favour of entrenching in the Canadian Constitution the human rights which are ordinarily referred to as fundamental rights or legal rights or as the case may be. I share with Premier Lyon this view—

[Translation]

The Premier of British Columbia has said:

[English]

B.C. believes that individual rights and fundamental freedoms must be protected but we remain satis?ed that the rnost appropriate method is through the exercise of the authority of the legislatures of the provinces and the Parliament of this nation.

[Translation]

The Premier of Alberta has stated and I quote:

[English]

So we come down to a conclusion that the better way to protect the rights of the citizens of our province. . . is . . . to leave that responsibility to the elected representatives.

[Translation]

The premiers of Quebec, Prince Edward Island and Nova Scotia have expressed exactly the same views, that within their provincial borders rights are not threatened. There lies the Achilles’ heel, the weakness of the provincial position. Everything is seen, gauged, weighed, thought out, in a strictly limited perspective confined to the territory of one province.

[Page 7476]

[English]

Canada is more than the sum of its ten provinces. Ten provincial flags will never make a Canadian flag. Ten provincial charters of rights are not a Canadian charter of rights and liberties. Two provincial charters which protect the rights of the handicapped will never protect the rights of all the handicapped in Canada.

Canada is more than the sum of its parts. Canada is a society whose citizens have equal rights and liberties wherever they live, wherever they move or Wherever they want to live.

Canada is a dream; a dream of equality, a dream of liberty, a dream in which the right to be different is guaranteed in the basic law, in which the rights of Canadians as Canadians, because they belong to this country, are the same everywhere, whether they are men or women, native or from mother countries, or whether they are immigrants full of hope who have just arrived dreaming of liberty and justice.

[Translation]

Quebecers had a unique opportunity to proclaim their unswerving loyalty to this country and their faith is this resolution on May 20. My generation of Quebecers believes in Canada because they are convinced this country can be a society where the freedom to be, the right to be different, the opportunity to develop one’s potential can be guaranteed in the fundamental law of the country. There are not ten Canadas, there is only one whose new foundations it behooves us to define. We do not want to retreat behind our differences, or use our French cultural identity as an excuse or a plea to refuse to join in and partake of this great Canadian endeavour which may require some adjustments in our liberties but which, in the long run, will be beneficial to more people. Sir Wilfrid Laurier understood that very well. In 1897, in Paris, he recalled the decision that Quebec politicians had had to take after the 1837 rebellion. He said and I quote:

Those of my fellow citizens who when confronted with this double provision believed in isolating themselves and not taking any part in the national development were not few. Mr. Lafontaine who, at the time, in the absence of Mr. Papincau then in exile, was the most competent man among us, was more highly inspired. I agree entirely with his way of thinking. He thought that to isolate oneself was always an error and that, for us, particularly, to isolate ourselves would be to bury ourselves in mediocrity.

That, Mr. Speaker, is our option, my option: As we enter the first stage in the reform of our institutions and legislation, I strongly believe that this resolution deserves the support of all Canadians because it provides essential safeguards for the preservation of their identity and the best way to achieve their ideal of a freer and more just country.

[English]

Hon. James A. McGrath (St. John’s East): Mr. Speaker, I am very pleased and honoured that I was able to be in the House today to hear the speech of the hon. member who just took his seat, the hon. member for Hochelaga-Maisonneuve (Mr. Joyal). Those of us who sat in the committee for any length of time were very much aware of the difficult task of the chairman in having to preside over the committee, especially for somebody of the character and personality of the hon. member for Hochelaga-Maisonneuve who has the reputation in this place for being somewhat of a maverick, and I say that as a compliment. He had to sit there and not say anything; but indeed, in sitting there he presided over that committee with a degree of fairness, impartiality and dignity that I have not seen around here for a long time.

Some hon. Members: Hear, hear!

Mr. McGrath: I am, I will say, a little sad that the hon. member, in finally getting a chance to have his say, has said a number of things with which I would find myself fundamentally and basically in disagreement. I thought he and I were philosophical soul mates. Indeed, I suspect, Mr. Speaker, that if he searched deeply within his soul, he would probably find— and I am not accusing him of intellectual dishonesty—if he came from a province which did not enjoy the veto which the province of Quebec does under the amending formula proposed in the bill before us, that the procedures are as abhorrent to him as we on this side of the House find them to be.

Some hon. Members: Hear, hear!

Mr. McGrath: I want to pay tribute to my leader, the Right Hon. Leader of the Opposition (Mr. Clark), the former prime minister of Canada, who stood alone without an opportunity to consult his colleagues on October 2 and went against what seemed to be at that time the popular wisdom in the country when he said, “Hold on, it is our duty to oppose this.” He was the one at that time to identify what the referendum procedure would do to this federation and this country, today and in the future. So we wish to express a debt of gratitude to the Right Hon. Leader of the Opposition because it was that opposition which touched off the debate which took place, first in the House, then in committee, and which today is back in the House. That opposition is very important, and the hon. member for Hochelaga-Maisonneuve would be the first to agree that it is a very essential part of the process which is taking place here today.

I should also like to join with others in paying tribute to my colleague, the hon. member for Provencher (Mr. Epp), who has carried out the responsibility of being the chairman of our committee on the Constitution with a great deal of dedication, devotion and patience, and I thank him. I am grateful to have the opportunity to thank him publicly for the leadership he has provided us in that committee.

[Page 7477]

I should like as well to pay tribute to the hon. member for Yorkton-Melville (Mr. Nystrom), who unfortunately is not in the House at present, for the outstanding work he has done in the committee as his party’s chief spokesman. Believe me, I do not do so because the hon. member has announced he is going to split with his party. I would have taken the opportunity to do so anyway because we were all impressed by the very constructive and difficult role performed by him. We knew, those of us who worked with him, that he did not subscribe to the position of his party, and yet he put that position forward, as was his responsibility and duty. I congratulate him and his three colleagues—and especially I congratulate the hon. member for Yorkton-Melville because he is his party’s spokesman on the Constitution, so the decision was perhaps more difficult for him—for announcing that they cannot support this package. That, of course, is consistent with the position which the hon. member for Yorkton-Melville took when this measure first came before this House.

Perhaps I might as well put on the record that just a few hours ago the Premier of Saskatchewan held a press conference at which he announced that he could not support this package. He was provincial premier number eight to do so. That means there are eight provinces today in this country which are opposing the process and the substantive parts of what is in this measure before us. The Premier of Saskatchewan said;

I was disturbed because I felt his action would widen the divisions in Canada.

Then he went on to say:

I was disturbed because while the September first ministers’ conference failed, agreement on a compromise package of reforms had been so very close.

That was the message all premiers brought to us as they appeared before the committee.

The government can talk all it wants about the second phase of these negotiations. There are very important matters to be dealt with in the second phase. For example, we have been told that a preamble to the charter of rights is something which must come in the second phase of negotiations. We have been told that offshore rights, fisheries jurisdiction and a number of other questions must come in the second phase. But let us think for a moment about the climate which has been created for that second phase of negotiations. Realistically it is not a climate which is conducive to productive agreement on the second or third phase of the Constitution. The government will be sitting down with ten premiers, eight of whom feel that the process is illegitimate, to say the least, and that the government has violated the pact of confederation with its charter of rights and amending formula which transgress areas of provincial jurisdiction. They will do an end run around provincial legislatures, rclegating them to nothing but mere municipal councils. This kind of atmosphere would not be conducive to agreement on anything. So, there will be no second phase for some time to come, and that is a tragedy.

I could talk about the charter of rights. A number of my colleagues spoke with a great deal of compassion about the most important and basic right of all—the right to life—and the impact the charter of rights could have on the question of abortion. What will probably happen is that the abortion question will be decided in the cold, harsh, cruel light of the interpretation of the exact wording of the law, not in an atmosphere where human dimensions and social pressures of the time will be brought to bear on that very important question.

Somebody said before the committee that there are two parts to the law. There is the bare bones of the law, but then there is convention and practice which clothe the law in flesh attd blood. The flesh and blood element is not a part and, indeed, should not be a part of the judicial process; but it should be and has been up to now an important part of this legislative process.

The right to hold property is basic in a free and democratic society. It was denied us in committee. It had been promised us, then it was denied us. I could talk about property rights and what they will mean. I know how a grandson of an immigrant in Saskatchewan would feel if his grandfather had cotne to this country looking for land and the freedom which land provides, if he had cleared that land with his bare hands, if that quarter section or whatever was his. How do we explain to that gentleman that his Constitution denies or does not recognize his right to hold and enjoy property?

Mr. Blaikie: You are full ofit.

Mr. McGrath: I heard the interjection of the hon. gentleman. It is worthy to note that the opposition to the right to hold property came from the province of Saskatchewan, which has that very right written into its own charter of rights.

Some hon. Members: Hear, hear!

Mr. McGrath: Now, how is that for a double standard? I suspect my hon. socialist friends find that the truth hurts.

I could talk about the rerouting of the charter. The hon. member for Hochelaga-Maisonneuve said, “How are you going to get agreement from the provinces if you reroute the charter?” If we agreed to reroute the charter, we would be creating a better climate of co-operation in the country. Because in so doing, we would be recognizing what the provinces have been saying, that is, that under the balance of power of our federation there are two jurisdictions in Canada, and we must respect both jurisdictions. This process of unilateral action and this entrenchment ofa charter denies the rights of the provinces to have their jurisdiction protected, protection which I submit is accorded to them under the provisions of the Constitution.

Also the hon. member for Hochelaga-Maisonneuve talked about the importance of the charter of rights in protecting human rights and fundamental freedoms. I happen to hold very strongly the opposite view. I would say, with respect to my hon. friend, that the entrenchment of a charter of rights in

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the Constitution will not by and of itself protect human rights and fundamental freedoms. I give him proof of that statement. What about the Japanese Americans who were the first to be interned? What protection did they have under the United States constitution with its entrenched charter of rights? They were the first to violate and take away the civil and human rights of the Japanese citizens of that country. Indeed, it was pressure from them which forced Canada to do the same thing.

My colleagues have talked about the constitution of the Soviet Union and the rights enshrined in it. I should like to give a better example. India is one of the few countries in the Commonwealth which has maintained the parliamentary system and entrenched a charter of rights. We can take a look at the record of civil rights and fundamental freedoms in India. At the present time it has suspended its constitutional rights for a ye_ar, We know what happened during the previous regime of Madam Gandhi when people had no fundamental rights or freedoms, notwithstanding the glowing terms of the entrenched rights contained in the constitution of India.

Then I look at the few countries in the Commonwealth which have not entrenched charters of rights and I find they have one significant thing in common. These are the countries which have the best record of protection of fundamental rights and freedoms of all the countries in the world, I will name them: the United Kingdom, Australia, New Zealand and Canada.

Some hon. Members: Hear, hear!

Mr. McGrath: I believe we will live to regret what we are doing here today. When the fathers of our country 113 years ago put together the present Constitution—in its written form, the British North America Act—they opted for the British tradition. As we know, there are two traditions for constitutions. There is the written tradition. For example, after a bloody civil war or a revolution, the Americans decided to sit down and write a constitution, as did the French. Then there is the British tradition where there is an evolution of a constitution based on the historic rights and privileges of a people as they develop and are transgressed. The ultimate protection of fundamental rights and freedoms is contained in the Parliament of the United Kingdom or up to the present day in the Parliament of Canada.

We are setting up in this country a parallel legislature because the Supreme Court of Canada, as it is faced with questions based on the charter of rights, will eventually have to legislate; we all know what happened and what is happening in the United States of America. I personally think that will be a regrettable day for Canada. But that is not the majority view and, in a democracy I prescribe to the majority view, and will reluctantly go along with the charter. I believe it is a better charter because of the deliberations of the committee. I do not want to suggest that because I participated in that committee, because we participated in that committee, or because we were successful in getting six or seven amendments, I do not want to suggest for a moment that in any way legitimizes the process. We were merely carrying out our responsibilities as legislators. How often do we deal with bills in the House upon which there is fundamental disagreement? As parliamentarians what do we do? Do we wash our hands and merely walk away? That is not the tradition of Parliament. We must sit and try to make a bad bill into a better one. That was the attitude we took in the committee, We had to sit and try to make a bad charter into a better one. As a result, I believe we have a better charter of rights today.

The famous Kirby document has a number of things to say. What is interesting about the Kirby document is that it has consistently recommended the governmenfs game plans. It said this:

The probability of an agreement is not high. Unilateral action is therefore a distinct possibility. In the event unilateral action becomes necessary, ministers should understand that the fight in Parliament and the country will be very, very rough. For, as Machiavelli said:

It is very interesting that the document should quote Machiavelli.

It should be borne in mind that there is nothing more difficult to arrange, more doubtful of success, and more dangerous to carry through than initiating changes in a state’s constitution.

What we propose to do here today is deny the federal concept, the federal character of Canada. I hear hon. members asking what the ultimate resolution of this argument will be. One would say that that argument would lead you to separatism. I was one who fought against my province joining Canada. I would fight today against my province separating from Canada.

Some hon. Members: Hear, hear!

Mr. McGrath: I would fight equally hard for my province to maintain its political entity and its sovereignty within the federation we call Canada.

The Minister of the Environment (Mr. Roberts) in a good speech to the House yesterday said something which has been said before by other ministers. I quote:

I urge the House, as the only body that truly represents all Canadian citizens, to accept this resolution—imperfect as it may be in this or that detail, but in whole an imaginative and fair response to the challenges of our country.

The minister says, “as the only body that truly represents all Canadian citizens.” What about the legislature of the province of Newfoundland, does it not represent Canadian citizens? What about the national assembly of the province of Quebec, does it not represent Canadian citizens? What about the assembly of the province of Alberta, does it not speak for Canadian citizens? What about British Columbia? The government has a role to play, but for it to suggest that this is the only legislative body in the country which can speak for Canadians as a whole is to adopt a unitary concept of Canada and deny ipso facto its federal nature. I regret that.

Some hon. Members: Hear, hear!

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Mr. McGrath: I reject that, Mr. Speaker. I believe the federal nature of Canada will ultimately be destroyed if we persist.

I have a few minutes left, Mr. Speaker. I have had to search my soul, as have we all, because whether we think the process is legitimate or not, we are involved in it. We must ask ourselves what is the bottom line? We must ask ourselves what is the least we will accept? All right; the government refuses to reroute the charter back to the provinces where the atmosphere, because of the climate in the country, I suggest is such that you would get agreement. The government refuses to do that and I must live with that. I hope my children’s rights will be protected.

It bases the amending process on the Victoria formula, so it will not budge from that. It must go into the package. There is one part of the package that, as a Canadian having a dedication to my country as a whole and a responsibility to my province as a unit, I reject outright, and that is the concept that the Government of Canada can at any time declare El deadlock and do an end-run around the provincial legislatures of this country.

Some hon. Members: Hear, hear!

Mr. McGrath: I reject that because it denies my province the rights we thought we were enshrining in our Constitution in 1949; that is, while we could be part of the greater nation of Canada we could still continue to maintain our political and cultural institutions within the federal system of Canada. That is the point which must be made. That is what is being denied us today.

There are none of us in the House who have an edge on patriotism or love of country. Indeed, somebody can say patriotism is the last refuge of this country. I make no excuse for the fact that I love this country. But equally, I love my province. I believe I have a responsibility to my province and if I fulfil and carry out that responsibility I am being a good Canadian and a good member of this federal nation of Canada. We must all carry out that responsibility to our provinces.

I say to you, Mr. Speaker, that my bottom line—and I say this to the people of Newfoundland and I will probably find myself in disagreement with the Premier of Newfoundland—is that if this package goes out of this Parliament with all its objectionable features I will suggest to the British Parliament, as a Canadian, “Hands off!”

Some hon. Members: Hear, hear!

Mr. McGratlt: The British Parliament has had its study. It knows what its constitutional position is, and it knows what are its constitutional responsibilities. But it has no business in examining a measure placed before it under a constitutional amending formula by a sovereign, independent and proud country. I will say this, Mr. Speaker; they did not ask for it. We have no right to send this package to Britain until the Supreme Court of Canada has had an opportunity to rule whether it is constitutional.

Some hon. Members: Hear, hear!

Mr. McGrath: To do so would run the risk of the national shame and embarrassment of having the Parliament of Great Britain reject a measure placed before it by the majority of the votes of the Parliament of Canada.

Finally, I say to you, Mr. Speaker, that if the governments majority has its way and obtains its amending referendum formulas, which will make the provinces and legislatures mere municipalities in terms of their relationship to the federal government, no province in Canada which holds to the position that the process is illegitimate and, hence, unconstitutional, and that the amending formula is ultra vires of the provincial constitutions, should have to accept this package. In my opinion any province could legally hold that the Government of Canada which tries to do an end-run around any provincial legislature could say, “No dice, it does not apply to us.”

Some hon. Members: Hear, hear!

Mr. McGrath: That is the kind of Canada, the kind of division and the kind of future this government, by its unilateral action, has mapped out for itself. I hope this debate will be allowed to continue, Mr. Speaker.

I had a woman come to see me today because she discovered that the section protecting the denominational schools does not protect private schools in British Columbia.

As long as we can keep this debate going we can find and correct anomalies in the bill. My God, what is six months or a year compared to a constitution that is supposed to last us a lifetime? Remember, what we are doing here today is for the future of Canada, We must be very careful that what we do is done as well as we can to protect Canada, to protect the federal nature of Canada, because if we do not, Mr. Speaker, then the country is in for a long period of trauma, discord and chaos. For a country like Canada with such promise, with such a future, with so many important economic questions facing it today, that in my view would be a tragedy in the extreme.

Some hon. Members: Hear, hear!

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