Canada, House of Commons Debates, “Resolution Respecting Constitution Act”, 32nd Parl, 1st Sess (19 February 1981)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 7471-7479, 7487-7500.
Other formats: Click here to view the original document (PDF).
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.
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!
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.
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.
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.
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.
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.
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:
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.
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:
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.
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:
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.
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:
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.
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:
—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.
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
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:
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.
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:
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.
That was in 1929, Mr. Speaker. That same year, the Manitoba Free Press took a stand and published the following:
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.
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
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:
—while Manitoba actively supports the protection of human rights it opposes the entrenchment of a charter of rights on principle.
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:
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—
The Premier of British Columbia has said:
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.
The Premier of Alberta has stated and I quote:
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.
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.
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.
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.
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.
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 of it.
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
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!
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!
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 ail necessary changes to the schedule consequential thereto.
Mr. Leonard Hopkins (Renfrew-Nipissing-Pembroke): Mr. Speaker, this is one of the most important Parliaments that bas been convened for many years. It is important because this Thirty-second Parliament is one of the most issue-oriented sessions that the members who presently hold seats in the House of Commons and, indeed, those who have been appointed to the other place, could be called upon to face at this time.
But as we debate these issues, and particularly the one before us today, we must at ail times remember we are a very privileged people to be Canadians. In these days of great world upheaval, uncertainty and turmoil we are a very privileged Parliament and nation to be able to debate in strong, but hopefully rational and constructive terms, the constitutional future of this great country of ours with which God bas blessed us so richly. I think it also presents us with the opportunity to use the various personal talents which He has given to us.
I am sure most of us, as we take this Canadian Constitution debate seriously, are fully aware of the great importance of this measure.
As we discuss the Constitution we realize what we are as Canadians is really God’s gift to us and what we become, or how we use our talents of understanding, breadth of mind, and spirit of brotherhood, is our gift to Him. Like most members of this chamber, I consider it a distinct honour and privilege to have the opportunity to represent a large number of Canadians and, hopefully, to be able to relate in some way to all Canadi-
ans from coast to coast, because that is becoming very important to this Parliament. That, indeed, as we all know, is a formidable task.
The constitution of a country covers everybody. It is the source of great emotional reactions on the part of serious citizens because it forces us to take into consideration the future and the full political independence of our nation and give them prominence.
As a fourth generation Canadian from Northern Ireland I have always leaned very strongly toward the true spirit of Canadian nationalism. I had the distinct privilege of growing up on a small farm in the western end of Victoria County in the central part of Ontario. I had an uncle who went west and became one of the campaign managers for the late right hon. gentleman from Prince Albert–
Mr. Epp: Hear, hear!
Mr. Hopkins:–who, when I came into this House, asked where I happened to go astray. My father and mother in Victoria County, like many of yours, were hardworking, honest and kindhearted with the very limited resources available to them. I need not tell you after whom that particular county was named.
My wonderful mother, whose first name is Victoria, is well into her eighties and still going strong. Other names in that community called Argyle were Ross, McFadden, Currie, McAlpine, McEachern and McArthur, McPherson, Burton, Moore, McLeod, Campbell, McIntyre and I do not know how the Irish got in there.
I moved at an early age to eastern Ontario and found myself in the middle of an almost totally German-speaking community in Renfrew County. I was faced with a small grade one class that spoke only German and I spoke only English, and the grade three’s were the interpreters between the teacher and the grade one class, so I knew what a language barrier was long before I came to Parliament. Just a short distance away was a large area settled by Canadians of Polish descent who spoke Polish in everyday conversation, and most still do. The little hamlet of Wilno in the northern part of Renfrew County is the oldest Polish settlement in Canada, about 116 years old.
Therefore, my experience with Canadians from origins other than English and French came very early in my life, and added experiences since then have given me a tremendous impression of our multicultural groups in Canada. They are proud Canadians and are a national force for cementing Canadian unity. The Polish Alliance of Canada was founded in 1907 and, while I stand to be corrected, I think it is the oldest ethno-cultural minority organization in the history of Canada. Clause 27, which is of interest to all multicultural groups, says:
This charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
Along with other members of this chamber, it has been my privilege to meet and get to know on a very personal basis, loyal, sincere and hardworking Canadians from all walks of life who have enriched Canada with their multicultural talents and contributions.
As a long-time resident of the Ottawa Valley I have met people and developed personal friendships with thousands French-speaking Canadians. Since I first came to this House I have enriched my life by joining several francophone members and senators and working with them. They have always been very understanding and very patient with me.
It is obvious to every Canadian that the writing and amending of a constitution does not come easily. The two volumes written by Donald Creighton on Sir John A. Macdonald illustrate many of the difficulties he had in those early days. We have only to look at the Americans who had to revise their constitution 12 years after they wrote it.
We know as time goes on life becomes more complex, and it becomes more difficult to amend constitutions. It is fair to say that only those who take major steps in history get things done. They are embattled and criticized, but conviction and a deep desire for achievement is worthless unless acted upon.
There are many who will say we are breaking new ground. That is not really so in this debate. The history of Canada, since day one, is dotted with constitutional debate of one kind or another. It should not be considered a remarkable achievement that the provinces and the federal government decided in 1931 to leave our Constitution in Britain without an amending formula. It is very easy to agree to do nothing. Our desire to bring the Constitution home today is a real challenge, and anyone who says that simply bringing it home without an amending formula and a charter of rights and freedoms is taking the easy way. They are correct, that is the easy way, but that does not come to grips with the key problem of the amending formula and charter of rights and freedoms. Those who suggest this are simply postponing the provision of an amending formula until a later date and that battle could drag on for many weeks or months.
The proposed resolution provides that for a period of two years from patriation, amendments will require unanimous consent of Parliament and the provinces until an amending formula is agreed upon using one of three methods and, while these are well known to the members of this House, I wish to put them on the record.
If, during the next two years, federal and provincial governments can reach unanimous agreement on a formula, it will be adopted. To facilitate agreement, a first ministers’ constitutional conference will be held each year until a formula is implemented.
If the provinces and the federal government fail to agree unanimously on a formula, but seven or more provinces, representing at least 80 per cent of the total population of all the provinces, agree within two years after patriation on an
amending procedure that meets the requirements set out in the resolution, this formula and a formula similar in principle to the Victoria formula will be put to the people in a referendum. The federal government will also have the opportunity, at that time, to put forward a formula of its own choice instead of the modified Victoria formula.
If the provinces do not present an alternative formula, the modified Victoria formula will automatically come into effect two years after patriation. In general, that formula would require that amendments to the Constitution be approved by Parliament and by either the legislative assemblies or, in a national referendum, a majority of voters in a majority of the provinces, including: every province that has or has had a population of at least 25 per cent of the population of Canada; at least two Atlantic provinces, at least two western provinces with combined populations of at least 50 per cent of the population of all the western provinces.
The argument being used that we are asking Britain to amend our Constitution instead of doing it ourselves surely does not hold water. The proposed resolution before us is a product of Canada’s Parliament. Before it reaches Britain it will have passed through both Houses of our Canadian Parliament. Many dedicated MPs and senators from all political parties have sat for days and weeks in a joint committee of both Houses to hear briefs and representations from many Canadians and particular experts. I join other members of this House in commending them and thanking them for their work.
I say to all Canadians that the proposed resolution which will be going to Britain is indeed a made-in-Canada product. As an English-speaking Canadian brought up, and having lived, in the atmosphere which I earlier described, I have always been a Canadian nationalist. I believe in a strong federal government, one that bas the nation’s regional interests at heart and one which is ready to sit down and exchange constructive views on a two-way street basis with the other regions of the country.
I am a Canadian federalist who, I think, bas some understanding of all Canada and who wants to understand even better this great nation from coast to coast, this nation that is God’s gift to us as Canadians. In this same context I say to this House and to all Canadians that a poor man is not he who is without a cent; a poor man is he who is without a dream. Our dream is to patriate our Constitution and have an amending formula.
Our daily thoughts should be elevated above the ceiling of this room. The secret of success is consistency of purpose. Even the woodpecker owes his success to the fact that he uses his head, and keeps pecking away until he finishes the job he starts.
Mr. Stevens: Look at what he does to the tree!
Mr. Hopkins: I do not know whether that was the woodpecker or the tree.
It has often been said that the measure of success is not whether you have a tough problem to deal with, but whether it is the same problem you had last year. Surely that is the essence of this whole exercise we are going through. This is the story of the patriation of our Canadian Constitution. We have made great strides in recent times regardless of diversity, which we hope is always a healthy process in our democracy.
The government is off to a good start with this proposed resolution and I appeal to the members of this House to give this plan a fair trial. I repeat, there will be first ministers’ conferences after the Constitution bas been patriated and is truly Canadian. Without having the Constitution home, time will continue to lapse. Do not forget that we as Canadian federalists, and we were proud that night from coast to coast, made a commitment to the federal supporters in the province of Quebec in last year’s referendum, that we would bring in reform. At the same time, we must carry on some very sound and realistic talks with our western Canadian friends. A good two-way street must be built for that purpose and that must be an objective of all parties concerned.
I strongly believe that in this great issue surrounding our nation’s Constitution we should take from the past its fires and not its ashes.
If we cannot join hands in a positive way for Canada and Canadians; if we cannot find common ground without weakening the federal government; if we cannot tackle successfully the completion of a 113-year old Constitution for Canadians and our wonderful home and its great potential, then we must learn a lesson from the author, L. P. Jacks, who said: “The pessimist sees the difficulty in every opportunity; the optimist sees the opportunity in every difficulty.” If we are going to see the opportunity in every difficulty in this debate, then we cannot help but succeed.
In order to answer some of the questions from those Canadians who have requested information about the impact of the proposed resolution on our parliamentary process in Canada and the Queen as head of state-because every time some changes come up, we in English Canada are asked questions about the place of the Queen and our government institutions–I am going to take a direct quote from the introduction of the explanatory notes:
“When these proposals come into effect, they will signify the passing of the last vestige of Canada’s former colonial status. The fundamental nature of our political system will not be changed: Canada will remain a parliamentary democracy with a federal system of government and the Queen as Head of State. However, now, after 113 years, we will finally have a constitution that is completely our own and that can be amended entirely within this country. The changes are also momentous in that, for the first time, Canadians will have basic rights and freedoms enshrined in and protected by the Constitution.”
Let me also state there is one thing that has bothered me as a Canadian nationalist from English-speaking Canada and as one who believes in a healthy federal state, and that is that Canada is the only sovereign country in the world which still has to turn to the Parliament of another country to amend its own Constitution.
Mr. Stevens: Why are you doing it?
Mr. Hopkins: We are doing it because the R. B. Bennett government never changed that at Westminster in 1931.
Mr. Andre: You flunked history at night-school.
Mr. Hopkins: If more initiative had been taken at that time we would not be debating this in the House today.
Canada is an influential middle power in the world and there is no way we should allow this situation to continue and, in ail reality, I am sure that our friends in Britain will be glad to see this matter cleared up once and for all.
I and other members and senators have received comments to the effect that a reference to God has been left out of the Constitution. I want to make it very clear that this is not the case and that anyone who is spreading this is inaccurate in their statements.
On June 10, 1980, this government, headed by the Right Hon. Pierre Elliott Trudeau, tabled in the House of Commons, a preamble which was entitled “A Statement of Principles for a New Constitution.” It was one or more of the provinces who asked that this preamble be set aside and discussed at a later date. It is one of the items which will undoubtedly be taken up at the first ministers’ conference following the patriation of the Constitution from Great Britain.
I will cite the preamble which we urged upon the provinces to include in this Constitution, as follows:
We, the people of Canada, proudly proclaim that we are and shall always be, with the help of God, a free and self-governing people.
Born of a meeting of the English and French presence on North American soil which had long been the home of our native peoples, and enriched by the contribution of millions of people from the four corners of the earth, we have chosen to create a life together which transcends the differences of blood relationships, language and religion, and willingly accept the experience of sharing our wealth and cultures, while respecting our diversity.
We have chosen to live together in one sovereign country, a true federation, conceived as a constitutional monarchy and founded on democratic principles.
Faithful to our history, and united by a common desire to give new life and strength to our federation, we are resolved to create together a new Constitution which:
shall be conceived and adopted in Canada,
shall reaffirm the official status of the French and English languages in Canada, and the diversity of cultures within Canadian society,
shall enshrine our fundamental freedoms, our basic civil, human and language rights, including the right to be educated in one’s language, French or English, where numbers warrant, and the rights of our native peoples, and shall define the authority of Parliament and of the Legislative Assemblies of our several provinces.
We further declare that our Parliament and provincial legislatures, our various governments and their agencies shall have no other purpose than to strive for the happiness and fulfilment of each and ail of us.
Unlike the hon. member for St. John’s East (Mr. McGrath) who spoke this afternoon, I do not believe Canada will break up because we have many solid Canadians out there. Let me say to ail my colleagues on both sides of the House that storms make oak trees take deeper roots.
Mr. Andre: Unless the woodpecker gets to them.
Mr. Hopkins: After our constitutional provisions are complete, we in Canada will probably have the best oak trees with the deepest roots in the world, united and intertwined together in one closely woven family, because today we are looking at this debate in the middle of conflict. When we look back, it will look quite different to us as we go ahead to full nationhood.
To all people across Canada and to my friends on both sides of the House, there are three lines to a poem written by John Boyle O’Reilly, which I think sum up what should be the aims of each and every one of us in this House and which should be the aim of ail Canadians across Canada. In part, the poem reads:
First across the gulf we cast
Kite-borne threads, till lines are passed,
And habit builds the bridge at last!
It is going to be habit in Canada, after we patriate the Constitution and after we have the first ministers’ conference, which will hopefully weld this nation together, to build the bridge that will take us on to greater nationhood in years to come.
Some hon. Members: Hear, hear!
Mr. Gary Gurbin (Bruce-Grey): Mr. Speaker, I join the debate on the Constitution with a great deal of respect and humility. I have respect for this as one of the greatest national issues of ail time, an issue for which the time has come. I enter the debate with respect for the politicians who have taken part so far. I would like to identify with respect the efforts of members made on behalf of ail of us, particularly those who took part in the committee debates. I enter the debate also with respect for this institution of which I am a member and the opportunity and the vehicle it gives us to take part, allowing us to participate in the democratic process.
My humility stems from being a part of this issue which is of such fantastic importance to the future of Canada. I think Canadians must have some feeling of ambivalance about this issue because we have been dealing now for weeks and even months with an issue which, in some ways, lacks a sense of priority in terms of national issues; things such as the economy and ail the economic factors making life difficult for people throughout Canada today. Surely they must wonder what we are doing spending the amount of time and effort we are on the Constitutional issue. At the same time, I think each one knows in some vague and unclear way that the constitutional issue and the results which come from our deliberations now will come to play a dramatic role on their futures and the way their lives are conducted in Canada in the future. I think particularly about the province of Ontario.
I want to spend a few moments talking about Ontario’s position because I come from Ontario. One of the things that needs to be clear about Ontarians, and about people like myself who try to represent people in Ontario, is that we need to look at this issue in a clear and careful way. We need to look at it with a long view, not with a short, a narrow or a political view. We should take a look at the long-range effects
of the way our deliberations now will have an impact on our relationship with the rest of the partners in confederation on issues such as energy, and even with the way industry in our own province will develop. The relationships we establish now and the types of arrangements we make with different governments across the country will be important. In my opinion, it is important that politicians in Ontario look at that, and it is something important for ail of us to think of as we go on and as we develop this process.
Our current Constitution has many origins. It comes from the Crown, from common law and from British statutes. All of our amendments to the British North America Act are British statutes. Our Constitution comes from orders in council, the judicial committee of the Privy Council and its deliberations. It comes from Canadian statutes, such as the Bill of Rights and the Dominion Act of 1875. It comes from Canadian and British treaties. It comes from parliamentary procedure and rules. It comes from the British North America Act itself. It comes also from conventions, such as having elections every four years or so, sometimes sooner.
Our nation’s history has been a success story against many odds. One of the most important of these odds is the diversity we have in geography, in climate and in resources. Another difficulty we have is the diversity of our population and our cultures. We started off with two founding cultures. We now have a variety of cultures ail of which contribute to the Canadian mosaic.
I would like now to go back in time and take a look at the legal processes; which have brought us to where we are today in our constitutional discussion. There are a number of places where we could start, but the most appropriate place in looking at this is the Royal proclamation of 1763. This resulted in Canada being designated as a colony of the British empire. With this proclamation we were promised the early establishment of English law and also representative institutions. Another significant factor in this proclamation was the guarantee it gave aboriginal and treaty rights to natives. Following this was the Quebec Act of 1774 which recognized the Catholic church and the French law, which was given its proper place in respect of civil matters. The Quebec Act gave an identity to the French culture in Canada.
In 1791, we had the Constitutional Act. With this, the colony was divided in two parts: Upper and Lower Canada. Both were given a structured government. Both had a governor, an executive council, a legislative council and an assembly that was elected every four years, and this was the first time Canada had elected representation.
After the rebellion of 1837, Lord Durham brought forward his report with three major recommendations: the union of Upper and Lower Canada, the establishment of responsible government in Canada, and also, his concept of a federal union. This was followed, in 1841, by the act of union which created Canada.
In 1864, the Macdonald-Cartier union government failed, and this led to our series of constitutional discussions and conferences, first in Charlottetown, and then later in Quebec. From those discussions came the British North America Act of 1867, the piece of paper we are looking at today and trying to patriate to Canada. The federal bicameral system, modelled after Westminster, was thus established in Canada. The British traditional system of government was brought to Canada, and was modified to meet Canada’s needs.
In 1890, Sir John A. Macdonald said to bis assembly, and I quote:
If I had influence over the minds of the people of Canada, any power over their intellect. I would leave them this legacy: Whatever you do adhere to the union. We are a great country, and shall become one of the greatest in the universe if we preserve it; we shall sink into insignificance and adversity if we suffer it to be broken! God and Nature made the two Canadas one–let no factious men be allowed to put then asunder!
We know that in 1867 we had union in four of the provinces: Quebec, Ontario, New Brunswick and Nova Scotia. This was followed in 1871, by British Columbia, Manitoba in 1881, Alberta and Saskatchewan in 1905, and finally Newfoundland in 1949. From here, until World War I, there was very little activity; but at that time we started to develop what was a sense of Canadian nationalism. With the Borden government, in 1917, this flowed into the Imperial Conferences of 1923, which gave Canada control over its foreign policy, and then the Balfour Declaration of Sovereignty in 1926. From these Imperial Conferences came the 1931 statute of Westminster.
We have heard many references to the statute of Westminster, and the fact that we were not able to reach agreement in Canada. As a result of that lack of agreement the statute of Westminster was altered, from Lord Balfour’s original declaration, to mean that Canada did not agree with what he was trying to say in his declaration. I quote from Section 71 of that act:
Nothing in this act shall be deemed to apply to the repeal of the British North America Acts of 1867 to 1931.
By that provision, Canada was excluded from the Balfour declaration.
In spite of the fact that we excluded ourselves from what might be considered to be our sovereignty, and what many are reacting to now, in 1939 Canada did what I consider to be the ultimate act of sovereignty: it declared war on its own behalf in World War II.
During the 1960s, we had a hectic time with constitutional reform. Indeed, up until recently, we had at least six first ministers’ conferences and 11 constitutional efforts. In 1964 we had the Fulton-Favreau efforts. In 1968 we had the Toronto conference with Robarts-Johnson. In 1971 we had the Victoria formula, which we are considering now.
The Victoria formula requires some comment. The key things in the Victoria formula are that the provinces seem to be unequal. Some provinces are indeed more equal than others. This formula seems to be quite appropriate, if you happen to come from one of the central provinces, which now, or at some
time in its history, had 25 per cent or more of the population; if you do not, then you are a second-class citizen.
I believe the hon. member for Rosedale (Mr. Crombie) mentioned yesterday, in the House, that if that amending formula had been in place now, Canada would never have had medicare.
Following the 1971 Victoria formula came the Vancouver formula. With the Vancouver formula, which many of us support now, we found that the federal government, along with support of seven provinces representing approximately 50 per cent of the population, could provide a constitutional amendment. This was initially agreed to by all provinces, but at the last moment, it failed to be consumated.
In 1976 we saw a Parti Québécois government elected. It stood for political independence and economic association. It really focused Canada on a referendum debate rather than a constitutional discussion. In 1980, thanks to a good deal of support from members opposite, we saw the results of the referendum in Quebec showing magnificent support for Canada. However, implicit in the result of this was a perceived need for federal renewal. Last year we saw an unfortunate turn of events, for the unrest that was seen in Quebec, has now been transferred to western Canada.
Now, in 1981, I stand here discussing this in the constitutional debate on the proposed constitution act of 1981, and I would like to comment on several parts of the process that have taken us to this point. Some of these matters are obvious, and I am sure they are repetitive to members opposite, but I think they are worthy of mention. The most important of these factors is that nation building, as we have it in Canada today, is a dynamic and evolutionary process that is changing and it has taken us, over a period of time in a number of ways, to the position where we are, and that process can be expected to continue.
Along with the evolution of our legal constitutional position, we have had a concurrent and similar evolution in many of our cultural and social attitudes. The attitudes of people have changed over a long period of time. Their morals have sometimes changed; the way that they conduct their personal and governmental affairs themselves has changed. Many changes have been dramatic, and have been brought on by conflicts both within and without our country.
These conflicts which started with the Plains of Abraham, continued and included the American Revolution, the war of 1812, the rebellion of 1837, the U.S. civil war, Boer War, World War 1, World War Il and the Korean war and then even to a conflict without arms in the Quebec referendum and the discussions that are going on out west today. All of these confrontations have resulted in changes, many of which have been happening at the time we found we had adapted changes in our legal position.
The third major point is that all of these factors have occurred today with the background of a federal co-operative consensus system, which I think is a key factor. What is important today is that we recognize the evolutionary nature of the institutions and the cultures of this county, that we establish at once the proper process basis to deal with inevitable conflicts that will come as we continue to experience growth, that we relieve these areas of potential conflict by anticipating the needs and the aspirations of regions and integrate them through just and honest process, and that we recognize the strengths of regions as assets on which to build our future.
The hon. member for Hochelaga-Maisonneuve (Mr. Joyal) spoke this afternoon about Canada being a creation which is greater than the sum of its parts. There is no question about that at all. The question need not even be asked, but the fact that he identifies it and the way it is identified concerns me somewhat because it implies there is misunderstanding of the way Canada can be a strong whole. There seems to be an inherent difference in the way hon. members opposite view a strong Canada and the way hon. members on this side view a strong Canada.
If I can use a medical analogy, I think each part of us as human beings is an important and integral part of a whole human being and that the whole human being can be no stronger than each one of its parts. We can borrow strengths from each of our parts to make the whole survive, but that is a limited process. Indeed, as each one of our parts is strong, so too will the entire body be that much stronger. Above all, today I believe our efforts must be to establish a constitutional process which has the confidence of the people of Canada.
As he was making his initial presentation, the Minister of Justice (Mr. Chrétien) implied that after 50 years we have nothing to show in Canada. There was an effort to make a correction, that what he really meant to say was it was only in constitutional reform. I was listening that day, and that is not the inference I took from hearing him. The implication was that we should do something now in haste because after 50 years we really have nothing to show for our efforts. This attitude has left him in the position where he says that in spite of not liking unilateral action and in spite of doing what he thinks people do not want done, he will go ahead with this process because he thinks it is important and because he thinks we have not done anything in 50 years. The irony is that while he has an understanding of the need for reform, I believe he has a misunderstanding of the type of action and process we need.
The error may be fatal. The people who will suffer are now led, through simplistic advertising, slogans and some brilliant political speeches, to believe that the problems will be resolved by the proposed constitution act of 1981. Perhaps, so far, the only casualties are federal-provincial relations among eight of the provinces and the federal government. So far the only casualties are the relationships between Canada and Great Britain. So far the only casualties are the relationships of trust between the government and two thirds of the people of Canada who do not believe the federal government should act in a unilateral fashion. This is all that has suffered so far.
Federal-provincial relationship are being changed. The consensus nature of federalism is being changed now. The cooperative nature of federalism is being changed. We have unilateral action now. When will we have unilateral action again in the future? The permanent referendum system is a permanent amendment to override provincial authority. The hon. member for St. John’s East this afternoon called it a run around the end, and that is a good expression. We are seeing moves now which take us from a co-operative federalism toward a unitary state. We ask the British government to accede to the convention of granting our parliamentary package, while we fail ourselves to respect the convention of sending Britain requests which already have provincial consensus. We are forcing Britain to become involved in our affairs. We are trying to force another country to amend that which we argue we are mature enough to deal with ourselves. The incongruities are enormous.
The Minister of Justice has included a permanent referendum formula, while arguing we cannot have a referendum now because it would be too divisive. The amendment the Conservative party brought forward in this House asks that this be removed. The amendment states, and I quote:
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.
Acceptance of this amendment would do much to restore the confidence of the people of Canada, the respect of the federal government for process, and federal-provincial relationships would certainly improve. I join the hon. member for Provencher (Mr. Epp) in asking the government to drop the permanent referendum clause.
We have heard much talk of entrenchment. The essence of this discussion is the question of what will be supreme, Parliament or the Supreme Court of Canada. There are many good arguments on both sides. In fact, this has resulted in some of the best political debates I have heard in my short political life.
If we look at the different countries around the world, the different commonwealth nations, countries which have entrenched charters of rights and freedoms, and those which have not, and if we try to compare them, we will see that in the end it really does not matter. It does not make any difference whether or not rights are entrenched. There is no consistency in the effect of entrenchment. Some countries which have entrenched charters of rights are clearly abusive to their citizens. One of the best charters of rights is that of the U.S.S.R., and there are other examples.
What really matters is not whether rights are entrenched but the health of the system which supports rights. How healthy is our system? How healthy is our parliamentary system? Is the Supreme Court of Canada effective and responsive? I suggest there is some question about the health of this parliamentary system. This is a parliamentary system which will use closure. This is a parliamentary system in which even this afternoon people talked with utter disregard for the rights and privileges of Members of Parliament. Ministers of the Crown disregard the individual rights and freedoms of Members of Parliament and their responsibilities to their constituencies.
Mr. Fox: Baloney. Even Benno doesn’t take that seriously or believe that.
Mr. Friesen: You better believe I do.
Mr. Gurbin: The other thing I would like to mention in this same reference is the question of the tone of the Charter of Rights and Freedoms. The tone of the Charter of Rights and Freedoms at this time is that the government gives its people rights; it deeds them out to people and allows them to do certain things. The point has been well made by others, as well as by myself, that really a charter of rights and freedoms and the designation of specific rights are limitations on governments. The rights and freedoms of people are there inherently by birth. Charters are in fact necessary in some cases to limit the actions of governments. The whole tone of this charter is repulsive.
Mr. Diefenbaker had a preamble which we tried to include in the Charter of Rights and Freedoms. I was interested in the last speaker’s reference to its being included or not, and the fact that this should be a second stage of the constitutional discussions. I am not sure who is the supreme reference in the current Constitution. If there is a blank spot at the top, I wonder who occupies that position. I wonder who has that ultimate authority.
Mr. Shields: Pierre Elliott Trudeau.
Mr. Friesen: Fast Eddy.
Mr. Gurbin: If it is not God, or if God is to be put to the second stage, that is an interesting move. But if it is not God, I wonder who it is. If God is at the second stage, I wonder what that means. I wonder what it means if God is second on the list of priorities.
There were some major amendments proposed, but they were refused. Others have spoken about this as well, but the most important single one is the right to property. We brought forward an amendment which was part of the Diefenbaker preamble. The interesting thing about this, of course, is the fact that when this was first presented it was accepted, and then for obvious political reasons it was no longer acceptable. This is an extremely important factor to most of the citizens of Canada. It was already a fact, and I find it unusual and very curious that the government would choose not to include it. I understand some of the difficulties the NDP members have with this, but I think that is consistent with the difficulties they have with anything that makes sense.
Some hon. Members: Hear, hear!
Mr. Gurbin: As an example of what others are doing with property rights, I would say that the United States protects its property rights in the fifth and in the fourteenth amendments;
that Australia’s constitution allows for just compensation when private property is expropriated federally; that Belgium stresses just compensation according to law; and that there is a UN Declaration of Human Rights which states that the right to own property is a fundamental human right. Canada has already signed this, and yet we will not include it in our constitutional amendments.
One of the great difficulties with the Charter of Rights and Freedoms as it now exists is its application to native groups. Although the native groups, through their representations to the constitutional committee, have indeed been able to have their amendment included, the difficulty is that this amendment allows for the provision and the guarantee of aboriginal rights, but these are undefined aboriginal rights. Aboriginal rights mean many things to many people, and this will be, as time goes on, one of the major sources of friction and difficulty the native people and the government will have in Canada. This should be clarified.
This is another indication that the constitutional discussions which we are having now, the amendments to and the consideration of the Charter of Rights and Freedoms, should be considered carefully over a measured period of time.
The control of natural resources is a key issue, and there have been some efforts to deal with it, but the efforts made have not really dealt with the primary issues and concerns, particularly of the resource rich provinces, the tone, mood and style which has been developed thus far leave us with pessimism about the opportunity, as time goes on, for the government to deal with these issues effectively. There is very little reason for those provinces which feel threatened to feel comfortable with the attitude and the form the federal government has now established.
A major additional point in the Constitution which has not been dealt with in this act, but which has seriously been considered by most who have looked at constitutional reform, is Senate reform. I will spend one moment on that subject, particularly because of the proposal made by Senator Roblin in April of 1980. He looks at a new Senate as having four main functions, and I think these should be recognized because they are important for people who are looking at these constitutional debates and at the opportunities which might arise.
First, he thinks a new Senate could be established to protect regional interests against a too aggressive central government. I think that might help, in particular, people in western Canada. Second, he looks at it as a sober second thought, a legislative revising body. Third, he looks at it as an effort and an ability to initiate committees of review and investigation in matters of important public concern, and fourth, he looks at it as providing a reservoir of cabinet representation when necessary if regions are not well represented in the House of Commons.
Senator Roblin suggests that a Senate could be elected, and this is indeed an attractive idea. It is a golden opportunity to provide relief if many of the strains on the future governing of our country are to be avoided.
There has been much discussion about what members on this side of the House feel and what they really support so far as the Charter of Rights and Freedoms is concerned. There is no question that members on this side and myself personally support a charter of rights and freedoms. We have never had any argument as to that. I do not know of a parliamentarian who does not in some way support this concept. There are reservations about the form, about what things are to be included, but there is no question about having a charter of rights and freedoms, even if we went only as far as the Bill of Rights, brought forward by the Right Hon. John Diefenbaker. If everyone did not support it, that is good evidence to show that it is not a required basis for securing rights within a democratic system, if that argument need be made. The point is that the efforts of the opposition to what the government is now doing are not based on opposing a charter of rights and freedoms but rather to having it included in another country as an amendment before the BNA Act is returned to Canada.
All members I know support patriation of the BNA Act. I do not know of anyone who does not feel that can be done without difficulty. There are those who might say it need not be done, but I know of no one who feels that it cannot be done. Indeed, Canadians in general support this move.
The third part of the government’s package is the amending formula. We have a great deal of difficulty with the amending formula and the arrangements being made by the government to allow amendments to be made to the BNA Act when it is brought back. I think there could be provincial agreement on an amending formula.
At one time, in 1974, there almost was agreement, and with the climate in the country today I think the opportunity clearly exists, if efforts were made to agree on an amending formula that was acceptable to all the provinces and the federal government agreement could be achieved.
The essential point, after considering each one of these three concepts, is that as a unit and with the process that has been established by the federal government now, they are unacceptable separately. However, with patriation, and an amending formula which had been agreed to by the provinces and the federal government, these concepts are entirely acceptable and could be implemented in the near future. But there must be a separation, a splitting of the Charter of Rights and Freedoms and any other amendments to the BNA Act before we ask the British government to return the act. The rest can be developed in Canada by Canadians as represented by provinces and territories, by individuals and by special interest groups. We can only gain by seeking the co-operation of those we pretend to govern. The federal system can only gain by encouraging an environment which fits its provinces and people in the most acceptable fashion. A solution cannot be imposed because it cannot be understood without a dialogue which leads to agreement.
I suspect, Mr. Speaker, that each Member of Parliament, if not each person in the country, has his or her national vision. It is the range of visions which gives strength to our existence,
allows practical and idealistic ideas to compete, to co-operate and to contribute to nation building.
I am a very positive and constructive person, Mr. Speaker; this is my nature. But, although I take part in this debate, this moment of history passes me and many parliamentarians by, not because we think less of our country, not because we do not believe in most of the substance of the proposal, but because we believe the process for the evolution of our democratic system must be established on the basis of consensus if it is to work at all, and because a process established otherwise would be divisive instead of unifying.
I cannot vote for this act. The government has no mandate for and no consensus on this act. The act denies the very essence of successful federalism. In the end, the people and the country will survive and history will judge us all. We will be a great nation, depending on the will of the people to overcome the barriers thrown up by the perhaps well-intentioned but certainly misguided politicians.
Mr. Jim Manly (Cowichan-Malahat-The Islands): Mr. Speaker, I appreciate the opportunity to take part in this historic debate on Canada’s Constitution. We all know this will be a long debate. Our party wants as many members as possible to take part in it, to speak and to express their views, so I will be brief and I will commend my example to my colleagues.
When I spoke on the initial proposal last fall I said, that while I supported many features in the constitutional package, I deplored the inadequacies in the charter of rights and its failure to recognize the rights of women and of Canada’s native people. Today I am happy to say that most of my earlier objections have been removed. This is a good package. It is not perfect, but it is a good one. Through the work of the joint committee the original proposal has been improved beyond all measure.
In this respect I want to pay tribute to all members of the committee. They worked long, hard hours; they gave their dedication and sincerity to that process. In particular I wish to single out the hon. member for Yorkton-Melville (Mr. Nystrom) and the hon. member for Burnaby (Mr. Robinson).
I regret that the government and the Tory opposition were not willing to accept the amendment moved to Section 15 by the hon. member for Burnaby which would have protected people from discrimination on the grounds of marital status, sexual orientation or political belief. The hon. member for Yorkton-Melville said he cannot support the proposal in its present form. I regret that, but I want to say it was largely because of the work of the hon. member for Yorkton-Melville that today I can support the package. I very much appreciate his work.
Before I move to the question of aboriginal rights, which I think is central to the Constitution, I want to look at some of the other positive features of this package. In addition to the Charter of Rights and Freedoms, it enshrines the principle of equalization so that all Canadians will have equivalent access to social services. It bas a resource clause which gives provinces greater control over their resources, and it gives them the right to indirect taxation. The proposal includes an amending formula which I believe is reasonable and fair, considering the diverse nature of our nation. This amending formula requires the consent of each of the four regions.
There has been an attempt to whip up opposition in the west to the fact that Ontario and Quebec have veto power. We need to remember that the west also has veto power in this respect, as do the maritimes. When we look at the population of the four different regions-the maritimes with two million people, Quebec with 6.5 million, Ontario with 8.5 million and the west with seven million-apart from the maritimes, which is much lower in population, the other three regions are more or less equally balanced. What other formula could give the needed flexibility and still protect the interests of each region?
Surely we do not want to endorse the need for unanimity. This has been the hangup for the last 50 years. We do not want to have a situation where Prince Edward Island, with half the population of Vancouver Island, would have a veto.
The Tories have advocated the Vancouver consensus. This would give each province the right to opt out of such fundamental provisions as the charter of rights. This is the kind of amending formula which would have warmed the hearts of the confederate states back in 1860; it denies our basic unity as a nation. I believe the present amending formula is reasonable and fair, and I speak as a member from British Columbia. Above all else, I support the constitutional package because at long last it recognizes the rights of aboriginal peoples of Canada. We cannot overestimate the symbolic significance of this step.
In the pre-Confederation history of Canada, Britain and France entered into relationship with various Indian nations; they looked upon one another as allies. They formed pacts of peace and friendship. The Royal Proclamation of 1763, which recognized the rights of aboriginal people, indicated that an historic relationship of trust had to be maintained. At the time the British North America Act was passed in 1867, this relationship was not considered, it was completely forgotten. The Indian people were not consulted about their place in the new nation. The federal government protected their interests only to the extent of reserving to federal jurisdiction “Indians and lands reserved for the Indians” under Section 91-24 of the BNA Act.
In the 114 years since that time the aboriginal peoples of Canada had no constitutional standing. The Indian Act bas not been a helpful act as far as Indian people are concerned. It is something which has been imposed upon them. Legislative changes in the act over the past century have robbed Indians of their right to determine the course of their own lives, the form of their own government and the shape of their own societies.
When the government brought out its original proposal to patriate the Constitution last October, it did nothing to improve that situation. The rights of aboriginal peoples were not recognized, except in a negative manner. The historic
covenant relationship between Indian people and the Crown was completely ignored. When I and other members of my party objected to this denial of rights, the government answered that it was impossible to recognize such rights.
On November 7 I asked the Prime Minister (Mr. Trudeau) about this. He answered as follows:
–I think the simple claim of aboriginal rights, without anyone knowing exactly what t tmeans, is not a matter which one can convincingly argue should be put in the Constitution at this time.
When I asked the Minister of Justice and Minister of State for Social Development (Mr. Chrétien) about aboriginal and treaty rights, he claimed their rights would be protected through the old section 24, which everyone knew was inadequate. All Indian, Metis and Inuit people across the country said it was not worth anything. He implied that nothing more was either needed or possible. When the Tories brought out their amendment to the Constitution, they went even further than the government in denying the rights of aboriginal peoples. Their suggested amendment did not even mention these people. Their amendment would have read as follows:
The guarantee in this charter of certain rights and freedoms shall not be construed as denying the existence of any rights or freedoms that may pertain to any cultural community or any other rights or freedoms that may exist in Canada.
This is what the Tory party was willing to offer the aboriginal people of Canada; this was their amendment. The facts are very clear and may be found by anyone who cares to read the record of the constitutional committee.
All members of the committee listened very attentively when representatives of the Indian: Metis and Inuit appeared before the committee. We listed and asked questions, but neither the Liberals nor the Tories were prepared to take any positive action. I am very proud of the role the New Democratic Party played in forcing the government to make a positive recognition and affirmation of aboriginal rights. In this respect I should like to pay tribute to the leader of my party who was involved in some very difficult negotiations with the government. These negotiations were successful and I would like to commend the government for its willingness to move on this important issue. I would also like to commend members of the Conservative Party for giving the amendment their unanimous support when it was put forward to the committee. I invite them now to join with us in supporting this package so that recognition and affirmation of aboriginal rights will become a constitutional reality, and not simply a dead letter in the constitutional report.
Some hon. Members: Hear, hear!
Mr. Manly: When we bring the Constitution home we will be saying to ourselves and to the world that we are no longer a colonial people. By recognizing the rights of the aboriginal peoples we are also saying that we no longer want to be a colonizing people. We do not want to look upon the Indians, the Inuit or the Metis simply as subjects to the colonized and as a people who have lands which can be exploited. We want these people to take their full place and their full stature as members of Canadian society.
For this to happen we need a change of attitude, as well as a change in the Constitution. Without the political commitment to see justice done for the aboriginal peoples, our new Constitution will remain only a scrap of paper. Through their experience with a long series of treaties, negotiations and agreements the aboriginal peoples know how empty and hollow our promises can be. Right now the James Bay Cree, who received many assurances a few years ago in exchange for the surrender of their rights, are finding that the Government of Canada and the government of Quebec are going back on their word. These people are suffering a serious health problem and our government says it is powerless to do anything about it because of the agreement.
This is why some of the Indian people are a bit uneasy about the wording which says their rights are hereby “recognized and affirmed.” They would like a stronger wording which says that those rights are sanctioned, ratified and confirmed. They would like to see additional protection for their rights in the amending formula so that no changes could be made in those rights without their consent. We would support any strengthening of their rights in the amending formula.
But even without this we recognize that Canada has taken an important step forward, which now needs to be ratified by this House. Constitutional recognition of aboriginal and treaty rights must be backed up by serious negotiations which will give these people an economic base on which they can build. The future actions of the government will indicate how serious it is in the recognition of these rights.
One major problem needs to be faced by us all. We are concerned about Section 12(l)(b) of the Indian Act which discriminates against Indian women on the basis of sex. If an Indian man marries a non-Indian woman she is entitled to Indian status. However, if an Indian woman marries a non- Indian man she loses her status. In both cases women take their status from their husbands. I remind this house that the Indian Act was imposed upon the Indian people. This discrimination was not of the Indian people’s making. However, many Indians have come to accept it, as all people sometimes accept discrimination which does not directly affect them. I think the time has come to change this situation.
I would like to throw out two challenges. First, I challenge the federal government to develop a program of land entitlement and financial entitlement which will make it possible and attractive for bands to receive Indian women back into membership, without these women becoming an additional burden upon communities already struggling with poverty and very meagre resources. Let us have some positive action on the part of the federal government to make it possible for bands to receive these people back into membership.
Some hon. Members: Hear, hear!
Mr. Manly: Second, I challenge Indian bands themselves to develop their own procedures for membership; procedures
which do not discriminate on the basis of sex. In this regard I was very pleased to receive a copy of a telex from the Aboriginal Council of British Columbia, which represents many different tribal federations and many different bands. I believe this telex indicates that Indian society is not static, chauvinistic or a relic of the past, but that it is dynamic, moving with the times and that Indian people themselves are committed to fairness. I would like to read the telex. It is from George Watts, chairman of the Aboriginal Council of British Columbia. It reads:
The Aboriginal Council of British Columbia meeting in full delegation Saturday, February 7, 1981, gave unanimous approval to the following resolution:
Moved by Ray Jones (Gitksan-Carrier Tribal Council) seconded by Leonard Tanner (Okanagan):
That all tribal groups in the province of British Columbia actively seek legislative change to the membership section of the Indian Act before the next quarterly meeting of the Aboriginal Council, and
That the tribal groups endorse the reinstatement of people of our nation not recognized as being Indian, and
That the chairman on behalf of tribal group representatives forward a telegram to the Minister of Indian Affairs informing him of our position.
This telex indicates that the Indian people are serious about removing discrimination. They do not want to be discriminated against by non-Indian society: they do not want to discriminate within Indian society. By recognizing their rights we will make it possible for Indian people to remove this kind of discrimination. By recognizing their rights in the Constitution we will make it easier for them to gain recognition of their economic and their political rights so that once again they can take their full place as members of the Canadian society.
I want to conclude, Mr. Speaker, by saying that I believe this is a good Charter of Rights and Freedoms. I believe this is a good Constitution. I am proud to give it support.
Some hon. Members: Hear, hear!
Mr. Benno Friesen (Surrey-White Rock-North Delta): Mr. Speaker, I take pleasure in participating in this debate. I had hoped to be able to do this last October when the debate began. As events proceeded, the government made certain not too many of us would be able to participate in the debate at that time. Thus, the speech I planned to make at that time had to be postponed.
I am pleased to follow my countryman from British Columbia who just concluded by saying this is a great Constitution and a great bill of rights. In the next few minutes I will be examining them to see whether they are as great as he says. Maybe he has very selective vision. We will see.
We must keep in mind as we debate this issue that it is an important issue for the House only because it is on the Order Paper. It is not an important issue before the country. I think members on both sides of the House will agree that the people across Canada believe it is the economic issues that ought to be debated in the House at this time. It is the inflation which we are facing in our country and the robbing of the low income group of 20 per cent of their pay cheques which should be before us for consideration.
An hon. Member: Two supporters have just arrived.
Mr. Friesen: Mr. Speaker, I hope after all this applause you credit me with a few extra minutes, and then some.
An hon. Member: Three more just arrived.
Mr. Friesen: While every other western nation is debating the problems of energy supply and security, we debate the Constitution. It seems to me it is evident all across Canada that this Constitution, or any other, will not put one extra slice of bread on the table.
I spoke to a Liberal member from the eastern townships and asked how much he was getting on the constitutional issue and he said zero; yet we have the Prime Minister (Mr. Trudeau) and the Minister of Justice (Mr. Chrétien) saying we have to pass this package now because the people of Quebec are demanding it. The people of Quebec know the important issue facing us today is the economy, and if this package addresses the referendum in Quebec, why do the three party leaders in the province of Quebec oppose it? We understand why Mr. Levesque might oppose it, but why does the Liberal leader in that province oppose this package if it is the answer to the referendum?
This package has the highest priority on the Order Paper only because the government controls the Order Paper.
I want to begin my remarks by paying tribute to my leader who on October 2 was given 90 minutes by the Prime Minister to study the text, analyse the issues, look at the problems and then address the people of Canada; 90 minutes, Mr. Speaker, in that short time he homed in on the critical issues facing the country now and in the future if this proposition passes in its present form.
Some hon. Members: Hear, hear!
Mr. Friesen: He did all Canadians proud. I was proud of him, and I know the people of Canada now recognize that it is because the Right Hon. Joe Clark assumed the leadership that night and it is because of his perceptions, his honesty and his willingness to put his future on the line, that we have an open and honest debate in the House of Commons.
Some hon. Members: Hear, hear!
Mr. Friesen: I also want to pay tribute to my colleague, the hon. member for Provencher (Mr. Epp) whom I watched very carefully during the debate in October and in the proceedings of the committee. I observed his skill, his patience and his statesmanship, and I want all members of this House, all the people of Canada, to know that I am proud to call him a brother.
Finally, I want to pay tribute to the hon. member for Hochelaga-Maisonneuve (Mr. Joyal). I came to this House at the same time as he, and I remember very well that he was the mover of the Speech from the Throne that year. I recall listening to the conservations of other members in the government benches at that time when they said this is a young man
who bears watching, and he has done this chamber proud. I watched him during the proceedings of the committee in which I participated several times. I saw his fairness, his incisive intellect, his respect for the institution, his respect for the people who appeared before the committee, for the people on the committee, and I was proud to call him a colleague and a friend.
Some hon. Members: Hear, hear!
Mr. Friesen: Mr. Speaker, probably one of the most frequent words used in this debate is the word “entrenchment”. The hon. member for Davenport (Mr. Caccia) in his “Householder” to his constituents last fall used that word and defined it as meaning “to dig deep” and “put into place” so that something will be immovable. It is a word taken from construction, and that is a good definition. If that is what entrenchment means with respect to the Constitution, then it is imperative that we be careful of what we entrench. If it is going to be immovable or difficult to change then we have to be careful what we put in.
I think it is recognized that a charter is a statement of an understanding of what we as a people perceive to be right or wrong in our society, and is designed to address those perceptions. It is only those ingredients we want which must be there, otherwise the foundation will crumble. I would ask, particularly my colleagues from the province of Quebec, suppose in 1867, the Fathers of Confederation had entrenched in the British North America Act, a bill of rights based upon the mores, perceptions, bigotry and lack of understanding that existed in the Quebec community of that time. I wonder if today the people of Quebec would be enjoying the flowering of their culture and their language. Would we be where we are as a nation; would the French-speaking Canadians be where they are had we entrenched such a bill of rights?
The difficulty with entrenching a bill of rights is that none of us have that omniscience whereby we can anticipate the future; none of us are that wise. I repeat, we must be careful of what we entrench. In the jargon of the construction trade, there can be no lumps of clay, there can be no raw dirt mixed in with the concrete. And I believe we are entrenching in this Constitution some materials that make for a crumbly foundation. *
One of those foreign ingredients, one of those lumps of clay, one of those ingredients that will cause the foundation to fall apart, is the amending formula. Any formula which makes of some provinces second-class citizens and indeed of some, third-class citizens, is a foreign object to that aggregate in the foundation. It is something we do not want.
While the Prime Minister talks about a charter of rights, at the same time he talks about second and third-class provinces because of the very nature of the formula he is imposing. The difficulty with this charter of rights is that we are entrenching not only good things, we are also entrenching unfairness into our Constitution.
Some hon. Members: Hear, hear!
Mr. Friesen: If the hon. member for Davenport is right when he says that entrenching in a constitution means to dig deep, then we ought not to be entrenching unfairness in this Constitution.
Let me show what I mean, Mr. Speaker. The amending formula is what is called the Victoria formula, now reduced to seven provinces but 80 per cent of the population. Clause 45 provides that a province which at any time has had 25 per cent of the population has a permanent veto in the amending of the Constitution. That means that two provinces, Quebec and Ontario, have a permanent veto. In 1971 Quebec had 27.9 per cent of the population of Canada; in 1981 it has 26.4 per cent. In other words, the percentage is going down; in one decade it has dropped by 1.5 per cent. Using the same ratio, by 1991 the population of Quebec will be 24.9 per cent. But, under the 25 per cent limit, Quebec will still have a veto on constitutional amendments.
British Columbia has a population of about 2.5 million and it increases by about 500,000 or just under 1 per cent each decade. In 1971 the population of British Columbia was 10.1 per cent of the total Canadian population; by 1981, it had risen to 11 per cent. This means that by 1991 it will be 11.9 per cent or 12 per cent.
With the progression we have today, in order for British Columbia’s population ever to reach 25 per cent of the population of Canada, and for the province therefore to enjoy veto power, it will take 14 decades; it will take 14 decades for British Columbia to become equal to the province of Quebec. That means that in the year 2120 British Columbia will become equal with two other provinces, even though the population of the province of Quebec by that time may have dropped to 20 or 18 per cent. One hundred and forty years from now British Columbia will have made it.
The hon. member for Cowichan-Malahat-The Islands (Mr. Manly) says this is a great Constitution. How long is British Columbia supposed to wait to become an equal partner in confederation? The proportions I have given hold truc only if the rest of the population remains constant. If the population in other provinces grows, however, then British Columbia will have to wait another 25 or 40 or 50 or 200 years. So, by the year 2180, assuming that all provinces experience growth, British Columbia will become an equal.
I say to my colleagues who come from the province of Quebec, it took you 114 years to achieve the kind of equality you want to enjoy, and I applaud the fact you are achieving that-I am happy for you-but British Columbia has been waiting 110 years. Do you want us to wait another 140 or 200 years under this amending formula? Is that your concept of fairness?
Members of the New Democratic Party applaud the Constitution even though my friends from British Columbia have been called upon to represent the interests and needs of that province and to make sure it enjoys the full benefits of confederation, as does any other province. They are saying this
is a good deal for British Columbia, even though we wiIl have to wait 200 years. My friend, the hon. member for Kootenay East (Mr. Parker), laughs but I wonder if his constituents who are waiting for full partnership are laughing. British Columbia wants to be a full member of confederation.
The proportions I have given tonight rest on the assumption that population growth remains stable in the rest of Canada. British Columbia does not want full partnership at the expense of the other three western provinces.
Under this amending formula British Columbia can form 50 per cent of the western population with one other province but no other western province can do that. Under this amending formula Prince Edward Island, with a population of 120,000–which is less than in my own constituency where there are about 175,000 people-is now an equal with ail the other maritime provinces. I am happy about that, but in the process Prince Edward Island with 120,000 people has gained more power than the 900,000 people in Saskatchewan and more power than the 900,000 people in Manitoba.
An hon. Member: One million.
Mr. Friesen: One million. Is this fairness? Alberta has over two million people and Prince Edward Island with 120,000 people has a power equal to or greater than the province of Alberta. Members opposite say this is a fair Constitution? My friends in the New Democratic Party say this is a good Constitution.
An hon. Member: Not all of them.
Mr. Friesen: That is the New Democratic Party.
An hon. Member: Minus four.
An hon. Member: That is socialist justice.
Mr. Friesen: I took both a sense of pleasure and pain when 1 watched the news conference on television last night conducted by four members of the New Democratic Party. I applauded and I felt the anguish they felt. It was not an easy thing for them to do, to maintain party loyalty and to stand for principle. I do not belittle that at all. I admire the stamina and the integrity of these four people. In the news release one of them said this:
I want to turn for a moment to the amending formula. It is a particular denial of co-operative federalism when the amending formula now before Parliament includes two key features that have never been discussed at federal-provincial constitution conferences within the past decade.
I admire that kind of integrity and that kind of honesty. I wish to God we had 12 members of the New Democratic Party from British Columbia who had that kind of integrity. What about the hon. member for Vancouver-Kingsway (Mr. Waddell), the hon. member for New Westminster-Coquitlam (Miss Jewett), the hon. member for Mission-Port Moody (Mr. Rose), and the hon. member for Comox-Powell River (Mr. Skelly) and the hon. member for Burnaby (Mr. Robinson)? Where are these British Columbians who are supposed to be looking after the interests of British Columbia? They have been voted for and called to this House to look after the interests of the people of British Columbia.
Mr. Blackburn: No, the people of Canada.
An hon. Member: They are in bed with the Liberals.
Mr. Kempling: Make a speech, Blackburn.
Mr. Friesen: I said at the outset that the ingredients in the founidation have to be consistent and they have to be clean.
Mr. Andre: Western Canadians don’t count.
Mr. Friesen: The amending formula is bad because we are entrenching unfairness into it. It is wrong.
Second, the unwelcome ingredient we do not need, the ingredient which will destroy the foundation, is such that we are entrenching an illusion. I recall that the representative from the Canadian Civil Liberties Association who came before the constitutional committee said the charter of rights in that form, admittedly somewhat amended and improved now, was a verbal illusion. That was what he called it, and that is what it is. When I first read the Constitution and looked at the charter, I looked at the provision. Seemingly it had ail of the ingredients of a charter of rights as we usually think of them, and as we read tbem the French or the American charter, for example, but something was bothering me about it. I could not understand what it was. but 1 had a gnawing feeling that something was wrong. Then 1 began to look at the language of the charter, in other words, the grammar of it. Whether or not there is a direct speaker, every writer has a speaker. Every writer, whether the speaker is identified, puts a speaker into that piece of writing. If the speaker is not identified, you find the speaker in the style of the writing. As an example, let us take the American bill of rights, the first amendment passed ten years after the original constitution was written. We find in Amendment 1:
Congreas shall make no law respecting an establishment of religion,–
Let me repeat that: “Congress shall make no law.” Who is being addressed? Who is being spoken to in that amendment? It is the Congress, it is the government who is being spoken to. Who is speaking to the government? The people are speaking to the government.
Some hon. Members: Hear, hear!
Mr. Friesen: The language of the American bill of rights indicates clearly that the people are the ones who have ail the rights, ail the privileges and all the power except those that they assign to the Congress. They have the residual powers.
I might add there is another aspect of this style in the American bill of rights. In Amendment VI we find the following:
In all criminal prosecutions. the accused shall enjoy the right to a speedy and public trial,–
Notice the emphatic form of the words “shall enjoy.”‘
Let me turn to the proposed charter here in Canada. I read in Clause 2:
Everyone has the following fundamental freedoms–
Who is spoken to? The citizens are the ones being spoken to. If the citizens are the ones who are being addressed, who is doing the speaking? The government is doing the speaking. It is the government, the state, that is giving the powers to the individual, except those it wants to keep to itself. That is just the opposite to the American bill of rights.
Notice the passive form of the verb “has” in the Canadian charter whereas. The American one says “shall enjoy.” What is so important about this? The one who is extending rights is the real owner of those rights. The one extending those rights has the real power. If he has real power, he can take the rights away.
The people have the power in the United States. They can also take away the power. That has been done. The U.S. has worked a formula into the Constitution itself by which the American people can take powers away from the government. This is known as initiative and referendum. The one extending the powers owns them and can take them away. The Canadian charter by the very wording of it, means that the central government, which says it will assign certain enumerated rights and privileges to the people, can also take them away.
Someone mentioned the Russian constitution. I have a copy here. The language in it is in the same passive form: “every citizen has the right.” We know that the citizens of the Soviet Union have had their rights taken away, because the government enjoys all the rights anyway.
An hon. Member: The Canadian and the Russian are the same.
Mr. Friesen: I heard the hon. member. I wish he would repeat it.