Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 14 (27 November 1980)

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Date: 1980-11-27
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 14 (27 November 1980).
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SENATE
HOUSE OF COMMONS

Issue No. 14

Thursday, November 27, 1980

Joint Chairmen:
Senator Harry Hays
Serge Joyal, M.P.

Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the

Constitution of Canada

RESPECTING:

The document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980

WITNESSES:

(See back cover)

First Session of the
Thirty-second Parliament, 1980

SPECIAL JOINT COMMITTEE OF THE SENATE AND OF THE HOUSE OF COMMONS ON THE CONSTITUTION OF CANADA

Joint Chairmen:
Senator Harry Hays
Serge Joyal, M.P.

Representing the Senate:

Senators:

Adams
Austin
Connolly
Cottreau
Flynn
Lapointe
Petten
Macquarrie
Tremblay—(10)

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Campbell (Miss) (South West Nova)
Corbin
Fraser
Henderson
Hnatyshyn
Hovdebo
Irwin
Lapierre
Mackasey
McGrath
McMillan
Nystrom—(15)

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

Pursuant to S.O. 65(4)(6) of the House of Commons:

On Thursday, November 27, 1980:

Miss Campbell (South West Nova) replaced Mr. Irwin;

Mr. Fulton replaced Mr. Nystrom;

Mr. Ittinuar replaced Mr. Robinson (Burnaby);

Mr. Nielsen replaced Mr. Munro (Esquimalt-Saanich);

Mr. Nickerson replaced Mr. Beatty;

Mr. Gingras replaced Mr. Mackasey;

Mr. Fulton replaced Mr. Nystrom;

Mr. Ittinuar replaced Mr. Robinson (Burnaby);

Mr. Nielsen replaced Mr. Munro (Esquimalt-Saanich);

Mr. Nickerson replaced Mr. Beatty;

Miss Campbell (South West Nova) replaced Mr. Irwin;

Mr. Gingras replaced Mr. Mackasey;

Mr. Irwin replaced Mr. Gingras;

Mr. Mackasey replaced Mr. Dion (Portneuf);

Mr. Bockstael replaced Mr. Gimaiel;

Mr. Hnatyshyn replaced Mr. Nielsen;

Mr. Hawkes replaced Mr. Nickerson;

Mr. Beatty replaced Mr. Hawkes;

Mr. McMillan replaced Mr. Epp;

Mr. Robinson (Burnaby) replaced Mr. Lewycky;

Mr. Hovdebo replaced Mr. Robinson (Burnaby).

Pursuant to an order of the Senate adopted November 5, 1980: On Thursday, November 27, 1980:

Senator Austin replaced Senator Bird;

Senator Connolly replaced Senator Cottreau;

Senator Bird replaced Senator Williams;

Senator Lapointe replaced Senator Lamontagne;

Senator Macquarrie replaced Senator Roblin;

Senator Adams replaced Senator Lucier;

Senator Flynn replaced Senator Asselin.

[Page 4]

MINUTES OF PROCEEDINGS

THURSDAY, NOVEMBER 27, 1980

(26)

[Text]

The Special Joint Committee on the Constitution of Canada met at 9:41 o’clock a.m., this day, the Joint Chairman, Senator Hays, presiding.

Members of the Committee present: Representing the Senate: The Honourable Senators Asselin, Bird, Connolly, Hays, Lamontagne, Lucier, McElman, Petten, Roblin and Tremblay.

Representing the House of Commons: Miss Campbell (South West Nova), Messrs. Corbin, Dion (Portneuf), Epp, Fraser, Fulton, Gimai’el, Gingras, Henderson, Ittinuar, Joyal, Lapierre, McGrath, Munro (Esquimalt-Saanich), Nickerson, Nielsen, Nystrom and Robinson (Burnaby).

Other Members present: Messrs, de Jong and Hawkes.

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. John McDonough, Researcher.

Witnesses: From Canadian Association of Chiefs of Police: Chief John Ackroyd, Chief, Metro Toronto Police; and Mr. Guy Lafrance, Legal Adviser, Montreal Urban Community Police. From Canadian Association of Crown Counsels: Mr. Roderick McLeod, Q.C., Assistant Deputy Attorney General of Ontario. From Government of Yukon: Honourable C. W. Pearson, Government Leader.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1.)

Messrs. Ackroyd, Lafrance and McLeod made statements and answered questions.

Honourable C. W. Pearson made a statement and answered questions.

At 12:26 o’clock p.m., the Committee adjourned to the call of the Chair.

EVENING SITTING

(27)

The Special Joint Committee on the Constitution of Canada met at 7:07 o’clock p.m., this day, the Joint Chairman, Senator Hays, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Adams, Austin, Cottreau, Connolly, Flynn, Hays, Lapointe, Petten, Macquarrie and Tremblay.

Other Senator present: The Honourable Senator Phillips.

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Corbin, Epp, Hawkes, Henderson, Hnatyshyn, Hovdebo, Irwin, Joyal,

[Page 5]

[Text]

Lapierre, Lewycky, Mackasey, McGrath, McMillan, Nystrom and Robinson (Burnaby).

Other Members present: Mrs. Côté and Mr. Dion (Portneuf).

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. John McDonough, Researcher.

Witnesses: From the Ukrainian Canadian Committee: Mr. John Nowosad, President; Mr. Manoly Lupul, Director, Institute of Ukrainian Studies. From the Government of Prince Edward Island: Hon. J. Angus MacLean, Premier; Mr. Fred Driscoll, Minister of Education.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. I.)

Messrs. Nowosad and Lupul made statements and answered questions.

Mr. Joyal assumed the Chair.

Hon. J. Angus MacLean made a statement and with Mr. Driscoll answered questions.

At 11:55 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent

Paul Bélisle

Joint Clerks of the Committee

[Page 6]

EVIDENCE

(Recorded by Electronic Apparatus)

Thursday, November 27, 1980

[Text]

The Joint Chairman (Senator Hays): Members of the Committee we will be examining evidence from the Canadian Association of Chiefs of Police and the Canadian Association of Crown Counsels

First, I would like to welcome both of your groups here this morning. We are looking forward with great anticipation to what you have to say. I am sure most of the members have read your brief so that they are familiar with it and of course this is of great interest to us this morning. Is Mr. McLeod going to be the first spokesman

Mr. Roderick McLeod, Q.C. (Assistant Deputy Attorney General of Ontario): I think Mr. Chairman, with your permission, that Chief Ackroyd is going to speak first on behalf of the Association of Chiefs of Police.

The Joint Chairman (Senator Hays): And then you will alternate back and forth.

Mr. McLeod: I think it was our intention, with your permission, that we have the Canadian Association of Chiefs of Police present a short summary of their position first followed by our Association’s position and then questions of either or both of us after, if that is permissible.\

The Joint Chairman (Senator Hays): Thank you very much. Go ahead Chief Ackroyd.

Chief John Ackroyd (Chief Metro Toronto Police): Mr. Chairman, ladies and gentlemen, first of all, I would like to thank everyone on behalf of the Canadian Association of Chiefs of Police for allowing us to attend this morning and present our brief.

I would like to introduce the gentleman on my right, this is Mr. Guy Lafrance, he is the Legal Adviser to the Montreal Urban Community Police; also here today is Chief Thomas Welsh and Deputy Chief Tom Flanagan of the Ottawa Police Department.

Our brief is in four parts; one, dealing with general philosophy; two, fundamental freedom; three, legal rights, and four, in the general sections respecting evidence.

I would ask Mr. Lafrance to deal very briefly with what is in our brief under general philosophy.

Mr. Guy Lafrance (Legal adviser, Montreal Urban Community Police): Mr. Chairman, the Canadian Association of Chiefs of Police does not agree with the general philosophy of including in the Constitution a Charter of Rights and Freedoms.

[page 7]

[Text]

Since we have so little time, I will refer members of the Committee to our brief.

The main reason why we think it should not be enshrined in the Canadian Constitution is that Parliament, and not the courts, are responsible for the definition of citizens’ rights.

If this charter is included in the Canadian Constitution, we think that Parliament will abdicate this part of its responsibilities in favour of judiciary powers.

As far as the text itself, I will turn to Mr. Ackroyd.

Chief Ackroyd: Thank you, Mr. Lafrance. I will now go the Fundamental Freedoms section which is the second part of our brief. In Section 2(a) it says:

Everyone has the following fundamental freedoms:

freedom of conscience and religion;

The Association is of the opinion that the words “of conscience” are vague, and unnecessary, in that there is a real risk that the word “conscience” could be given so broad an interpretation by the courts as to make various sections of the criminal law inoperative, for example, those sections relating to morals and drug offences.

We are also concerned with what these words may mean in relation to various cults that are operating in our country.

I will now turn to the Legal Rights section, Sections 7, 8, and 9. The Canadian Chiefs Association fully agrees with these sections as they are now drafted, but we would be strongly opposed to any changes thereto.

I make no mention of Section 10 in our brief but in both Sections 10 and 11 the word “promptly” is used; in Section 11 it says:

11. Anyone charged with an offence has the right:

to be informed promptly of the specific offence;

We are a little concerned about the word “promptly” and we notice in the French interpretation that, as Mr. Guy Lafrance pointed out to me this morning, it says “as soon as practicable” and we feel “as soon as practicable” is better wording and the word “promptly” should be replaced by that in both Sections 10 and 11.

Our greatest concern in Section 11 is the word “specific”. The Association suggests that that word be taken out and recommends that it read “to be informed as soon as practicable of the offence with which he is charged”. The reason we say that is that in the word “specific” many police officers investigating a crime, at the scene of the crime may not know when they are arresting a person and telling him what he is charged with, they may not know whether it is murder or manslaughter; he may not know whether it is false pretences of forgery, those two are very close in the Criminal Code. We may not know whether it is gross indecency, or indecent assault, and the word “specific” ties it down very tightly and we feel it should be removed.

[Page 8]

[Text]

In self-incrimination in Section 13:

13. A witness has the right when compelled to testify not to have anu incriminating evidence so given used to incriminate him or her in any other proceedings, except a prosecution for perjury, or for the giving of contradictory evidence.

It is the opinion of the Association that people should be required to ask for this protection under the Canada Evidence Act or relevant Provincial Offences Act, as the witnesses testifying, they know better than anyone if they are incriminating themselves, so we feel that should be changed.

Section 26, the general laws respecting evidence, and I think this is the one that concerns us the most:

26. No provision of the Charter, other than Section 13 affects the laws respecting the admissibility of evidence in any proceedings or the authority of Parliament or a legislature to make laws in relation thereto.”

The Association agrees with this section as now written and would be strongly opposed to any change.

It is the understanding of the Canadian Association of Chiefs of Police that the Canadian Civil Liberties Association has recommended, in effect, to the Committee that it adopt the United States Exclusionary Rule, commonly known as the “Fruit of the Poisoned Tree.”

In the United States, this rule has proven to be the greatest single road block to effective and fair law enforcement. It is of great concern to law enforcement officers in that country.

When murderers are set free because a police officer has made a minor mistake in the procedures he is required to follow, does society really benefit? The American experience has produced negative results.

Let me give you one example, and this is an example that is taught at the FBI College to our officers going down there.

A young couple sitting in an automobile were accosted by a man armed with a rifle. He ordered the male out of the car and shot him several times. He died immediately.

The man then raped the female, shot her and left her for dead.

As the result of police investigation, leads were obtained to the identity of the assailant. Police officers visited his home, spoke to his mother, who stated that her son had arrived home late on the night of the incident, was in an agitated state, had packed a bag and left, saying that his mother would never see him again.

At the request of the police the mother, who owned the house, gave explicit permission to the police officers to search her son’s room. She was aware of the reason why the police wanted to search it. A rigle was found and a ballistics check revealed that it was the murder weapon.

The man was subsequently apprehended, charged, tried and found guilty on the murder and other charges.

[Page 9]

[Text]

On appeal, the court held the Exclusionary Rule applied, in that the police should not have entered the room without the man’s permission. The evidence was therefore trainted. The appeal was allowed and the murderer went free.

Another example would be police officers executing a search for drugs in a dwelling house and finding firearms, munitions, offensive weapons, balaclavas or stolen properties. These items have been found during drug raids on the clubhouses of motorcycle gangs in Ontario. Under an exclusionary rule, these items could not be submitted in evidence.

Police officers should obviously be encouraged and required to follow all procedures required by law when dealing with private citizens. But society’s remedies, if a police officer fails to follow these procedures, are found in other disciplinary measures, including the laying of criminal charges against him—certainly not in having the courts let the murderer go free.

The Joint Chairman (Senator Hays): Thank you. Mr. McLeod.

Mr. McLeod: Thank you, Mr. Chairman.

First of all I would like to introduce on my left Mr. Jim Langston from Lethbridge, Alberta. Together we represent the Canadian Association of Crown Counsel which is an association representing Crown attorneys and other Crown counsel throughout Canada, many of whom are employed by provincial attorneys general and others by the federal Department of Justice. I should take a moment to point out at the outset that we are here in our own right as Crown prosecutors, speaking as persons who I think are fairly heavily involved on a daily basis with criminal prosecutions and therefore very much interested particularly in the wording of any charter of rights.

We do not speak this morning on behalf of our ministries or on behalf of any government of which our ministries are a part. Out prime concern this morning is to try if we can to be of some assistance to you with respect to the precise wording of any legal rights portion of a charter of rights. If I could direct members of the Committee to the short written brief that we filed yesterday, first of all at page 1 we have endeavoured to point out that we think it is very important that great care be taken in the wording of any legal rights section when we are declaring and enshrining legal principles which are fundamental to our justice system. It is our respectful view that it is most important that care be taken so as to not put ourselves in a position where we impair the fairness, flexibility and the effectiveness of the current criminal justice system that we have in Canada today. We are concerned that if that care is not taken we will wind up with a situation somewhat like that in the United States with endless arguments in the courtroom based upon fixed, but at the same time vague, terms in a constitution covering criminal prosecutions.

We have pointed out on page two that we do see merit in making a declaration of principle and emphasizing the importance of that principle by including a statement of it in a

[Page 10]

[Text]

charter of rights but at the same time we see little or not merit in attempting to try to distill into constitutional language the detailed provisions of the existing substantive and procedural criminal law, only to realize later, perhaps after it is too late, perhaps in the way that some people in the United States are now beginning to realize, that the procedural and substantive criminal law is really something that is incapable of distillation into constitutional language, at least in some of the wording that has been suggested by some of the groups that have been before you and have made representations to the government earlier in this process.

We submit in particular that it is really not possible in constitutional language to foresee and allow for the degree of evolution that will inevitably occur in years to come, in not only the application of the criminal and procedural law, but in that law itself.

With those general comments in mind, I would like if I may, Mr. Chairman, to go to the remainder of our brief where members of the Committee can see that what we have attempted to do is set out on the left hand side of the page the existing English language version and on the right hand side some comments we have, and if I may be permitted to deal primarily with two of those at this time.

The first is with respect to Section 1 of the Charter. We are respectfully submitting to the members of the Committee that you consider the possible addition of certain words at the end of the existing wording. As members of the Committee are aware, Section 1 is a general section providing that the rights and freedoms set out in the charter are subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. It is our submission that the following words be added to the end of that Section 1, and the words are:

including such limits as are or may be prescribed by statutes which clarify or define such rights or freedoms.

We have pointed out in the brief, on page 3 in the right hand side, that this may well already be envisaged by the existing wording of Section 1, but it is our view that to add it would be to clarify and perhaps would assist in answering the criticisms of some people who suggest that a charter of rights is contrary to the principle of parliamentary supremacy. We respectfully suggest at the same time to add it would not be inconsistent with the concept of entrenching a form of charter of rights with respect to legal principles. It may well be a lesser form of entrenchment, but it is still a form of entrenchment because Parliament could never abrogate or remove a fundamental right or freedom. Most importantly, if I may, members of the Committee and Mr. Chairman, Parliament could at least share with the courts the role of clarifying and defining such rights and freedoms as may be declared in the constitution.

It is our view that it is perhaps not possible to speak as bluntly as some have spoken with respect to the question of entrenchment. It is not that easy a concept, it is not all black and white, but there is a role for Parliament, in our respectful submission, a very significant role in clarifying and defining

[Page 11]

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such rights as may be declared in the constitution, but that is not to suggest that Parliament would have the right to abrogate them or take them away, in any way.

Further on pages 3 and 4 we have recorded comments with respect to the other specific sections. I think it perhaps would be most helpful if I were to leave those with the Committee as they appear before you in the brief and move through to the end of the brief, at this point, to Section 26, which has been referred to as the evidentiary provision in the Charter. As the members of the Committee I am sure are aware, in earlier drafts of this Charter that were under consideration earlier in this process there was in place of Section 26 a very broad remedies section which in effect gave to any person who thought that his or her rights had been infringed the power to apply to a court for whatever relief that person thought was appropriate and, most importantly, whatever relief the court thought was appropriate.

The current provision is indeed very different from that remedies provision and it is our respectful submission to you that the current provision is far and away better than the earlier drafts and there ought not to be any change to it. Perhaps of more help, I would hope at least, to you, is a factor that may have gone untested or unlocked at in some respects. If we have properly perceived some of the submissions that have been made to you, it has been suggested by some, including the Canadian Civil Liberties Association, that to leave Section 26 as it now is would amount to an enshrining or an entrenching of the admissibility of illegally obtained evidence. It is our respectful submission to you that the wording of Section 26 does nothing of the kind. It no more entrenches or enshrines the admissibility of illegally obtained evidence than it does enshrine or entrench the inadmissibility. What it does is it leaves the law of evidence to the type of evolution that we have been used to in this country, that is a combination of parliament and the courts

It may well be that 10 years from now, or 20 years from now, Parliament would decide in its wisdom that it is appropriate to move to a different law of evidence than we now have in Canada. It may be that judicial interpretation of the existing laws of evidence in Canada will result in a form of evolution that will move towards a different rule, but it is our respectful submission that it really is not right to say that the existing wording amounts to an entrenching of the admissibility of illegally obtained evidence. Those are our comments, Mr. Chairman, and members of the Committee with respect to at least those two of what we perceive to be important points and we will be happy to try and answer any questions that you have.

The Joint Chairman (Senator Hays): Thank you very much, Mr. McLeod. I have Mr. McGrath first on the list.

Mr. McGrath: Thank you, Mr. Chairman.

Well, Mr. Chairman, first of all to the Canadian Association of Chiefs of Police, I was impressed by the very strong position you have taken on entrenchment. You are one of the few witnesses to take a strong stand against entrenchment. However, faced with the possibility that there will be entrenchment, are you satisfied that the present bill of rights as

[Page 12]

[Text]

outlined in the bill before us is satisfactory? We have heard a number of witnesses express concern, for example, over Section 1 and we had one learned witness, Mr. Justice Clyne, who indicated to us that this was a badly drafted charter of rights, it was bad legislation.

He expressed concern that if there is to be entrenchment, then we should be very careful in terms of the language of the entrenched rights.

He went so far as to say that if there is to be entrenchment the Diefenbaker bill would be much more effective.

In the light of this, have you, in arriving at your decision, given any thought to the inevitability of entrenchment and what kind of an entrenched bill can you, as the enforcers of the law in the country, best live with?

Chief Ackroyd: If I understand your question correctly, on page 4 of our brief we have indicated that if this Charter of Rights and Freedoms is to be entrenched in the constitution, then we have raised our concerns primarily in Section 2, but we wanted no change in Section 7, Section 8, or Section 9.

I have mentioned the word “promptly” in Section 10 and Section 11, and referred to the word “specific” being omitted in Section 11.

Mr. McGrath: Perhaps I did not explain myself as clearly as I should have. But my question deals with the declaration contained in Section 1 which has caused so much trouble.

There is not much point in addressing it in subsequent sections, unless the general provisions of Section 1 are such as to not provide a loophole large enough to allow for all of the other sections to be inoperative.

Chief Ackroyd: Perhaps Mr. Guy Lafrance could answer the question. He is the person who dealt with Section 1, and it was something that was drafted by him at the Conference of Canadian Chiefs in Montreal in August.

Le coprésident (sénateur Hays): Monsieur Lafrance.

[Translation]

Mr. Guy Lafrance: Mr. Chairman, the present clause reads:

The Canadian Charter of rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

Taking into account the comments made by my colleague, Mr. McLeod, it was suggested to include a sentence:

[Text]

including such limits as are or may be prescribed by statutes which clarify or define such rights or freedoms.

[Translation]

For our part, we believe that this clause would be far better structured if it were to belong to Clause 1. Clause 1 is very general; so much so that it could very well prevent—it is a feeling I have—any enforcement of the remaining clauses. You are probably right. What are they, these reasonable limits as generally accepted in a free and democratic society? This is all terribly vague.

[Page 13]

You might want to modify Clause 1, but I must confess that we have not made a complete study of Clause 1, and therefore cannot propose an alternative to it.

[Text]

Mr. McGrath: What you are saying would still not address the problem you have identified in your opening paragraph on the general philosophy, when you make the statement:

Under the Charter, the individual judge will have the power to overrule Parliament on a number of matters, including such questions as the powers and duties of policemen in the enforcement of the criminal law, and we do not approve of this.

In other words, there is really no way that an entrenched Bill of Rights can satisfy you in this particular concern. You either have entrenchment or you do not have entrenchment. You cannot have it both ways. In any event, I would like to go on. 1 would like to go to the matter of some specific recommendations which you have made. Can you explain what you mean by your suggested change in Section 2(a), where you have expressed concern about the word “conscience” whereby it would be given such a broad interpretation as to make certain sections of the Criminal Code inoperative?

Can you explain this? What would you put in the place of “conscience”?

Chief Ackroyd: Well, I would leave the word out. If not, then I would certainly feel it should be moved into Section 2(b). In fact, I am not even sure it is necessary there. Phrases like “freedom of thought”—and I do not have the constitution before me and I am speaking from memory—are expressed there, and that would cover it. My concern would be that in moral offences, whether one can argue before a court that certain sexual behaviour might be within one’s rights of freedom of conscience; certain cults believe in the use of certain drugs as part of their conscience; and can they argue that, because it is part of their cult that the use of certain drugs and chemicals give them a right to argue that they have freedom of conscience? That is a type of concern we are raising.

Mr. McGrath: It can be argued, of course, that without freedom of conscience you will be subjected—this addresses a question, for example, of dictatorship and the problems of a police, fascist or communist state. A lot of them have freedom of conscience in their specific bills and charters. But we know that in states other than the western democracies there is no freedom of conscience.

I am afraid that what you are recommending here, notwithstanding

Chief Ackroyd: May I respond to that? I notice that Section 2(b) speaks of freedom of thought, belief, opinion and expression, including freedom of the press and other media of information

Mr. McGrath: But there is a big difference, with respect.

Chief Ackroyd: That is what concerns us.

[Page 14]

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Mr. McGrath: i would like to go on to your next suggested recommendation on Section 11(b). This concerns me, because you expressed concern about the use of the phrase “reasonable time” with regard to the laying of a charge.

What would you consider to be appropriate? Would you specify a length of time?

Chief Ackroyd: I do not think it should be entrenched in the constitution.

Mr. McGrath: Where is it to be entrenched? What would be your preference?

Chief Ackroyd: I think it would have to be as laid out in the Criminal Code, what the times are for a preliminary hearing, for example, or for a trial.

But you are putting the courts in a position of trying to interpret what is a reasonable time. There are cases in the metropolitan Toronto today that are two and a half years and have not come to trial; so, is that a reasonable time? “Reasonable” is a very vague word.

So that it can only work if you have a specific time frame laid down that a man should be brought before a preliminary hearing within so many months, and following that, brought to trial within so many months. But to be as vague as to use the word “reasonable” leaves a very broad interpretation for the courts

Mr. McGrath: Finally, can you tell me please, what, in your opinion would be the impact of Section 13 on the Canada Evidence Act?

Chief Ackroyd: As I interpret Section 13 now, it means every witness taking the witness box automatically has a right that any evidence he gives cannot be used against him in further criminal charges.

The position we take is that he should still ask for the protection of the Canada Evidence Act or his own provincial evidence act

Mr. McGrath: Thank you very much.

I would like now to turn to the Association of Crown Counsel. I suppose they would fall under the category, or could fall, of expert witnesses.

I was intrigued by your suggested changes to Section 1, and your general philosophical approach to the whole business of entrenchment. I found in there a contradiction. You talked about a role for Parliament in clarifying and defining rights. Yes, if we have an entrenched Bill of Rights, Parliament surrenders that role to the courts. It is the courts that clarify and define rights.

Can you explain what appears to be a contradiction in your evidence?

Mr. McLeod: I said the question of whether or not one should entrench is not a black and white question. It cannot be answered “yes” or “no”. There are degrees of entrenchment.

Mr. McGrath: You are not taking a position on that, to entrench or not to entrench?

[Page 15]

[Text]

Mr. McLeod: We are not taking a position because, in our view, you cannot take one. The question simply cannot be answered “yes” or “no”. It is a question, rather, of do you give everything to the courts and leave Parliament with nothing? I suppose that is absolute full entrenchment. Or, you give no power to the courts and leave everything to Parliament, which is the other end of the scale.

We are suggesting that it is only when you know the precise wording, especially with Section 1—and 1 would respectfully agree with your comment that that is the key to the whole thing—but it is only when you know the wording that you know what amount of power, if you will, has been transferred from Parliament to the courts.

It is our suggestion that you can retain, with Parliament the power to clarify or define, yet, at the same time, give to the courts the power to protect the very rights themselves by not permitting Parliament to abrogate or take the rights away.

Mr. McGrath: Well, Mr. Chairman, my time does not permit me to pursue this, because I believe the witnesses are important to our deliberations here, in that they are people who have to operate within the law in terms of acting for the Crown in litigation.

I would further like to have the witness explain to us what he means in Section 10 when he refers to this being open to abuse. My concern is that by inserting the words “as soon as practicable” in place of “promptly” you are defeating the very purpose of the section, because “promptly” means promptly; whereas “practicable” means different things to different people. Would you please explain what you mean by that. I do not understand, quite frankly, how you feel, if there is to be the protection afforded in Section 10, and if we are to have an entrenched bill of rights, obviously we must have the kind of protection that Section 10 addresses. It seems to me to be a contradiction in terms there if you change the word “promptly” to “as soon as practicable”.

Mr. McLeod: Sir, we are not wed to the words “as soon as practicable”. Our concern with this issue is exactly the same as the concern of the Chiefs of Police. We are suggesting that some courts might interpret the word “promptly” as meaning virtually immediately and that just simply is not practicable in many arrest situations. That is why in our view the Criminal Code for many years has spoken in terms of giving notice, where it is feasible to do so, to allow for the fact situation where, for one reason or another, depending on what kind of a fact situation you are dealing with, how many people there are; where they are; what kind of pressure the police officer is under and he may require some few moments it might be 10 minutes, it might be 20 minutes before he can get to that person and comply with this provision in the constitution, and we are concerned that the word “promptly” just connotes too much immediacy. I really cannot be too much help here, but my understanding is that the French version of this constitution as now drafted does not really translate to easily back into English with the word “promptly”.

So perhaps it is a draftsmen’s problem rather than anything.

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Mr. McGrath: That is really the problem of trying to define these things in precise language in terms of entrenchment. Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Thank you, Mr. McGrath. Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman. I would like to thank both associations for their briefs.

In passing, I share the concern of Mr. McGrath that there is just not enough time to question you adequately on the important questions that have been raised in your briefs. I must say, frankly, that I was somewhat concerned about the fact that you chose to appear together and present your briefs together, in view of the, at least my understanding of the slightly different roles of the law enforcement branch as opposed to the responsibility of Crown Counsel as officers of the Crown. My understanding is that your functions are somewhat distinct and I wonder if you could explain why it is that you are appearing together, is this just a matter of the scheduling that you were requested to appear together, or is it the fact that your interest is identical on these questions?

Mr. McLeod: It is very much a question of this Committee’s scheduling. We are thankful for being here, but I think it is simply a question of time and your comments are quite accurate, our interests are very different in the roles that we play. There are times when we agree and there are times when we disagree, but we are two very distinct organizations.

Mr. Robinson: Thank you. I think that should be clearly understood by the Committee.

I wonder, Mr. McLeod, just on another matter of a procedural nature, I assume that there has been considerable consultation with your organization, and perhaps Chief Ackroyd you could also comment, prior to the final drafting of these documents, over the course of the summer, in terms of various consultations with governments and with your organization, would that be accurate to assume?

Mr. McLeod: There has been a considerable amount of discussion within the ranks of Crown Counsel throughout this country, all summer, at a variety of meetings of one type or another. There has been, throughout the last couple of weeks in preparation for coming here, an assessment of the views of our membership by the executive of our organization.

Mr. Robinson: Perhaps I did not make myself clear, what was the nature of your consultation with in particular the Ontario government and representatives of the federal government prior to the drafting of the charter?

Mr. McLeod: There has been no direct representation by our Association with any government.

Mr. Robinson: I see. Chief Ackroyd.

Chief Ackroyd: This issue was first raised at the Canadian Association of Chiefs of Police at a conference last August and we did make a press release and indicated some of our concerns at that time. Since then Mr. Guy Lafrance who is a solicitor, along with myself, have looked for assistance from other people in helping prepare our position.

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I would like to also comment on your other question; 1 think Mr. McLeod made it quite clear that we are two different organizations, but up until about two days ago I understood we were to appear one in the morning and one in the afternoon, but because of time constraints we have agreed to share because there was only going to be time this morning and we just agreed to share that time.

Mr. Robinson: I appreciate that, thank you. On the question of entrenchment, you are aware that there have been witnesses both pro and con appearing before this committee. I think you may also be aware, and in particular, Chief Ackroyd, of the representations that were made by an association similar to yours, if not the same association at the time the Canadian Bill of Rights was drafted and your association was very strongly opposed to a number of provisions that appeared in the existing, what has been called the Diefenbaker Bill of Rights, so in a sense history is repeating itself on some of these questions, although of course we are now talking about entrenchment as opposed to the bill itself

I would like to turn to some of the specific sections which you have referred to in your brief.

1 note with interest Section 7, Section 8 and Section 9 that you completely agree with these sections and that you do not want to see any changes in them. I assume that the essence of that Chief Ackroyd is because of the provision in there that any such seizure, detention or imprisonment has to be in accordance with procedures established by law. So in essence this is not in any way, in your view, a violation of the sovereignty of Parliament, because it merely says this has to be lawful and it does not in any way state that there are certain specific guidelines which the courts can get into, is that accurate?

Chief Ackroyd: Yes. We have no trouble with any of these sections as an association; we agree with them, we feel the police officers are servants of the law and are compelled to obey the law and we felt that these were quite satisfactory to our organization.

Mr. Robinson: Yes, I can understand that Chief Ackroyd. With respect to Section 11(b) you referred to:

Unless specific times are laid down

Do you have any suggestions on what specific time might be laid down if there are to be specific times laid down, have you given any thought to that?

Chief Ackroyd: No, I do not think it is the position of the police to lay down specific times. 1 would feel that if it is to be entrenched in this Charter it would have to be done by amendments to the Criminal Code.

Mr. Robinson: Of course, you appreciate the Criminal Code is not in any way an entrenched document and what could be put into the Criminal Code can also be taken out of the Criminal Code at any time

Chief Ackroyd: Yes, my concern would be with a word as vague as “reasonable”, could people then be allowed to go free that are before the court because someone ruled that they were not tried within a reasonable time. I do not know what “reasonable” is.

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Mr. Robinson: Turning to your comments on Section 13, I must say I am a bit surprised by your comments on that. You indicate that people should be required to ask for their protection, because as you put it the witness testifying knows better than anyone if he is incriminating himself. Well, with respect, Chief Ackroyd, that is surely not the issue. The issue is whether or not witnesses know that they have this right under the Canada Evidence Act to protection from further incrimination, not whether they are incriminating themselves, but whether they have the right not to have their testimony used against them. We do not address that question, and with respect, you may be aware of the fact that Section merely states what is already the law with respect to evidence, it does not in any way change the law with respect to evidence, because under the existing Canada Evidence Act there is a requirement that this protection be invoked.

Chief Ackroyd: I stand to be corrected, sir, and I may be wrong, but I was under the impression that a person if he wished to have that protection, must request it at the trial when he is in the witness box, he must request that. The last time I was at a hearing, it was during the Morand Commission and I noticed all of the witnesses testifying against the police, each witness started off by asking the protection of the court under the Canada Evidence Act and none of our police officers did that, so if I am wrong in law sir, I apologize, but I was under the impression that they had to request it.

Mr. Robinson: Yes sir, you are right, they do have to request it now. I will not pursue that particular area, but there is another area which I wonder if you might just comment on, and that is with respect to the question of an obligation to inform persons who are charged with offences of their right to obtain counsel, for example, I take it you would be opposed to that particular requirement.

Chief Ackroyd: I do not think there is anything in our brief opposing that, sir.

Mr. Robinson: Would you have any comment as to the desirability of such an addition, would you be opposed to an amendment to the charter specifically which would require persons to be informed of their rights, with a discretion in the courts to take the appropriate action should they not be informed of their rights.

Mr. Lafrance: Mr. Chairman, if I may, I would like to know, informed by whom …

Who is going to inform him of his rights, the court or the police officer.

Mr. Robinson: The police officer.

Mr. Lafrance: If you ask the police officer to inform him of his rights he may have some problem in practice of applying it. C’est assez difficile, en fait, au niveau pratique, pour l’application quotidienne par les agents de la paix de faire ce fait-là d’une façon continue.

Concerning Clause 13, if I may, a person appearing before a court must ask its protection when he thinks answering to a question could lead to self-incrimination. Under some provincial acts, for example, the court must inform the witness that

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he has a right to refuse to answer a question that could incriminate him. This is a totally different notion. Then, you are protecting the witness’ rights without having an automatic protection and the person has to ask for it to the court when the question is asked.

Mr. Robinson: One more question with respect to Section 26, and then a brief question for the Office of the Crown Counsel. On Section 13, I understand the distinction you are making in terms of the old section and the new section. 1 frankly do not understand your rationale for suggesting that it is only those persons who are aware that this right exists that should have that protection, but that is the argument that you are making, that if they happen to know they have that right then they should ask for it. If they don’t know they have that right, then that is too bad.

Mr. Lafrance: I am sorry, Mr. Robinson, I did not say that.

Mr. Robinson: That is what the brief says, it says only people who ask for that right than can have the right.

Mr. Lafrance: That is the law as it is now in Canada.

Mr. Robinson: Yes.

Mr. Lafrance: If that is the law now, I think you are saying that the witness should be informed. If you think that the constitution should state that the witness be informed, then it should ask the court to inform him, but it should not entitle him to it automatically.

Mr. Robinson: With respect to Section 26, again 1 can understand from your perspective why you think this is a very effectively worded section. You say that it has proven to be, in the United States, the greatest single roadblock to effective and fair law enforcement.

1 think there may be some confusion in the way you are reading this section, with respect, because the court could be, under the amendments which are being proposed by the Civil Liberties Association, could be given a discretion, and that is all that is being asked for by the Civil Liberties Association, a discretion to exclude evidence which the Crown is attempting to admit which would bring the administration of justice into disrepute. Certainly Crown counsel should be familiar with those words. There is no suggestion whatsoever by the Civil Liberties Association that there should be an automatic exclusionary rule. How would you feel about a rule which would say that in certain circumstances that our court should at least have a discretion to exclude evidence which has been obtained in a way that would bring the administration of justice into disrepute. Not that there should be an automatic exclusion, but that the courts should at least have a discretion to look at the way that evidence has been obtained.

Now, 1 would perhaps hope that there would be a slight difference of view between Crown counsel as officers of the court, and Chief Ackroyd on this, but I would be interested in hearing from both of you on this question.

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Mr. McLeod: There is no doubt that the Civil Liberties Association submission is to place in the court a considerable discretion to rule out the evidence that would otherwise be relevant and probative and therefore admissible. It is our submission that the court ought not to have that kind of discretion, because of the very reasons that were examined with great care by the Supreme Court of Canada in the Wray case not too long ago in this country, where that very issue was the subject of considerable debate.

If you impose upon the court that degree of discretion, it is our view that you create a degree of uncertainty, not just in the criminal law but in all matters coming before the court, which is just not acceptable. Crown prosecutors do not know what evidence is going to be admissible; police officers do not know what evidence is going to be admissible; and to stretch it to its extremes a conscientious crown prosecutor and a conscientious police officer believing that evidence is going to be admissible proceeds with criminal charges with the result that the man is brought before the court and tried in a public courtroom, only to find out later that because the court had a different view, in their discretion of the admissibility of the evidence, it should not have been admitted and the man is acquitted. Now, it is proper that the man is acquitted, but in our view it is improper that there be that degree of uncertainty in the law that allows that man to be charged in the first place.

Our current law gives us that degree of certainty to permit us, hopefully, as often as possible to make the right decision from that reason, and perhaps superficially beneficial as it might sound there are grave problems with that degree of discretion being given to the individual trial judge.

Mr. Robinson: If I might just ask one final question Mr. Chairman. I assume Chief Ackroyd would agree totally with that particular submission. If I might just ask one final question; that is on the submission of the Association of Crown counsels. You make a suggestion for Section 1, which with respect, would render totally ineffectual any suggestion that there should be an entrenched charter of rights in this country. Because not only do you accept the present wording of Section 1, weak and inadequate as it is, but you go on to say that the entire charter should be limited to include such limits as are or may be prescribed by statutes, passed by a majority of Parliament, which clarify or defy such rights or freedoms.

Well, Mr. McLeod, with respect, what you are saying is you do not want an entrenched charter of rights. You believe it should be up to Parliament and to provincial legislatures to put any limits they may like, any limits they may choose to define or to clarify any of these rights or freedoms.

Now, it may not matter to you that by Section 1 being limited in that way you are also limiting the other sections; the non-discrimination sections and everything else. You may not care about that because you obviously have not given any consideration to that in your submission. Is it not a fact that what you are saying is that you do not believe fundamentally in entrenchment and it should be up to Parliament and legisla-

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turcs to decide what limits are placed, because certainly that is the effect of what you are suggesting in Section 1.

Mr. McLeod: Mr. Robinson, I don’t think one can look at it in quite that black and white way. The suggestion that we are making is one that curiously enough, is not really that dissimilar from what is found in the United Nations Universal Declaration of Human Rights.

Mr. Robinson: Sure it is.

Mr. McLeod: In Section 29 you will note that the document reads that

in the exercise of his rights and freedoms;

that is with respect to the individual;

everyone shall be subject only to such limitations as are determined by law.

A wording which is not precisely the same as what we are suggesting, but a wording that I respectfully suggest is not that much different.

Perhaps more importantly, and maybe I have not made myself as clear as I ought to have, but I do not think that we are saying that there can be no entrenchment at all. We are saying that it is possible to entrench a principle, to put Parliament in a position where it could not take away, let us say, the freedom of religion, but where it could play a role in cooperation with the courts in the future in defining and clarifying what that right of freedom of religion means, surely there has got to be a difference between abrogating or taking something away on the one hand, and merely defining it and evolving it as society changes and as we progress forward in the future years. That is the distinction we see and I would suggest that it is not a position as you would describe it.

As to the other sections of the Charter I will not take time this morning. I have to respectfully disagree with your comment as to whether or not we have considered them I think we have come here confining ourselves primarily to the wording of the Legal Rights section because we thought that was the area where we might be of some help.

The Joint Chairman (Senator Hays): Thank you very much Mr. Robinson.

Senator Connolly.

Senator Connolly: Thank you, Mr. Chairman. The first thing 1 want to say, and 1 think this Committee would probably agree, is that we are particularly pleased to have these groups here, the representatives of the police and representatives of the Crown attorneys, because they really are the people who are in the front line insofar as the maintenance of law and other in our society is concerned.

In other words, law and order sometimes is ridiculed and frowned upon. It is not too popular a phrase, it does not constitute too popular a phrase, but without law and order our society just cannot hold together.

The practical application of the laws that Parliament and the legislatures enact really falls upon the shoulders of people like the police and people like the Crown Counsel, and they do a tremendous job of work, not only for the general operation of society in Canada, but for the individuals concerned. I think

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that tribute should go to both of your groups from people in Parliament

I want to speak particularly about Section 26 of the proposed bill. For the sake of clarifying it and simplifying it, I would like to read it again into the record and this is in Section 13:

26. No provision of this Charter,… affects the laws respecting the admissibility of evidence in any proceedings or the authority of Parliament or a legislature to make laws in relation thereto.

Now, this quite clearly says that regardless of what is in the Charter, the laws of evidence may affect those provisions, and the laws of evidence have not the entrenchment that the provisions of the Charter have.

In other words, this clause of the bill indicates the supremacy of Parliament and the legislatures in respect of the laws of evidence. Those laws will have a position of primacy over and above the provisions of the Charter.

Now, there has been a good deal of work done by an organization, the Uniform Law Conference of Canada and the report of that task force will certainly come out in due time. It will probably modify some of the provisions that are now found in the laws of evidence in Canada.

If those recommendations are followed, the new law of evidence in Section 26 will prevail. I suppose one cannot comment upon what the report might recommend. I would think that at this stage the wise thing to do is to wait until the recommendations are made, but we do know that if Section 26 is included in the proposed Bill and is enacted, then those new laws which Parliament and the legislatures will make, will prevail even if they impinge upon the rights that are set out in this Charter.

We have had evidence, as the witnesses know, from a number of groups including the Commissioner of Human Rights of Canada and he objects to Section 26. Tomorrow we are going to hear from the Canadian Bar Association and we have their brief, and they recommend strongly that Section 26 should be eliminated on the grounds that as it is presently drafted it would permit derogation from the rights granted in the Charter

Chief Ackroyd and Mr. McLeod, you both say Section 26 should remain, and in view of the forthright and rather strong objection that has come and will come from some of the witnesses before this Committee, I wonder if you would like to tell us more about why you disagree with proposals to remove Section 26.

Mr. McLeod: I think, Mr. Chairman, a small point first if I may, and I will not repeat myself. In our brief we point out that we see a misconception in the submissions of those who say it should be taken out, because they suggest that to leave it in amounts to legislating the admissibility of illegally obtained evidence, and I have already made that point.

On the question of principle, the alleged rationale for their position, if I have understood it correctly, is that which is the basis of the American position. It is that the only effective way to control the police, to police the police, is to make evidence

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that they obtain in breach of the law, or in breach of the regulations, inadmissible. The theory is that if the evidence is not going to be admissible, then the policeman will obey the law in order to ensure that the evidence is admissible.

It is our view that the very current experience in the United States is that that rationale has just not borne fruit at all, the policeman does not react to that kind of indirect pressure. What the policeman does react to, and what has been our tradition in Canada for years, is that if the policeman breaks the law, the policeman should be prosecuted, or he should be disciplined.

It is the role of the Executive Branch of government to police the police. There are, I do not know how many, but Chief Ackroyd can probably tell you better than I can, how many prosecutions ongoing in the city of Toronto right now where police officers are being prosecuted in the criminal courts just the same way as any other citizen is, because in our view that is the way it ought to run, and that is the way to control, to discipline the police. You do not deprive society of proper public trial with all the probative and relevant evidence which, if it does lead to a conviction, will result in the murderer being brought before the courts and properly dealt with.

Senator Connolly: Do you disaffect the morale of the police force by this continuing possibility of prosecution against them for this reason.

Mr. McLeod: I have understood sir, from talking with police officers and Crown counsel in the United States that it is even more than that, it is not just a question of adversely affecting morale, in some areas in the United States it has got to the point where the police officer on the street in a difficult situation has a choice, do I follow all these different rules that I do not understand and try and get this man into court; or do I dispense some instant justice on the scene? So it has gone beyond affecting morale, it has gone to the point of actually promoting lawlessness to a certain extent.

Senator Connolly: Among the police?

Mr. McLeod: Among the police themselves.

Senator Connolly: Within the police force.

Mr. McLeod: Yes.

Mr. Ackroyd: My reaction to some of the things that you have raised is that I don’t think it is proper because some of our police officers are presently before the courts on the issue about evidence illegally obtained, and I would not want to deal with those cases because they are before the courts.

In the past, we have had police officers that have been charged with trespass, as a result of a case where they got evidence but they were trespassing. As I say, at the present time we do have two police officers before the courts on charges that resulted out of the suggestion the evidence was illegally obtained.

So I feel strongly that there is recourse against police officers, it is going on all the time, that if they in any way breach the law in respect as to how they get evidence.

The only thing I think I could add to what Mr. McLeod said about the morale of police officers, I have travelled extensively

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in the United States and talked to police officers and 1 think the thing, in addition to what Mr. McLeod has raised, that concerns me is the young police officers on the street today are so frustrated with some of these rules that they literally turn their backs on what they observe on the streets and I certainly would not want this to happen in this country of ours.

The Joint Chairman (Senator Hays): Thank you very much, Senator Connolly. Mr. Munro.

Mr. Munro: Thank you, Mr. Chairman.

Before opening my line of questions, I would like to make a reservation on the appropriateness of including a charter of rights in a document such as that before us which is to be submitted to a non-Canadian jurisdiction for legitimization, but at the same time 1 recognize the evidence to be presented in this forum and the related questioning could be of great assistance in the future when Canadians may be required to examine in Canada the desirability or otherwise of entrenching a charter of rights in any constitutional document and securing the legitimization of the resulting document by an appropriate Canadian legitimizing authority or authorities.

With those two reservations, Mr. Chairman, I would like to again ask the two witnesses, as well as thanking them for appearing and for their evidence, the distinction particularly that Mr. McLeod makes about you cannot be black and white about entrenchment. The Chiefs of Police were quite clear in their statement right at the very beginning by stating that they were of the firm opinion that a Canadian charter of rights and freedoms enshrined in a constitution is neither necessary nor desirable. That is right at the opening of their statement.

The Crown counsel, on the other hand, if I may say, with respect, equivocate a little on this matter. You say you can, you cannot; you may or you may not; and they proceed to go on: if you did. I was wondering how it is possible, perhaps because of my lack of legal training, to understand that you can entrench or can half entrench or it is not black and white? Are you distinguishing between entrenchment in constitutional terms in a statute or is a statute entrenchment or not? I would like the comments of both the witnesses on this particular aspect of the matter

Mr. McLeod: Mr. Chairman, I apologize if our submission has appeared to be equivocal. They certainly were not intended to be. What we intended to try and convey to you was to try and answer the question: should there be an entrenched charter? We find that it is absolutely essential that you look at the wording of the document in order to determine precisely what type of entrenchment you are doing. I said that before and I would be repeating myself to go back over that.

Perhaps the best way to look at it is to take an example. If one assumes that there is a charter of rights with a clause in it guaranteeing a freedom of religion and a government official of some kind denies, let us say, a certain organization the status of tax exemption or the right to solemnize marriages or something of that nature, and that citizen feels his rights under the Charter have been infringed, he would take action in the courts and the court would make a ruling. Now, if there is complete and full entrenchment with Parliament having no

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right to clarify and define, then it would be the court and only the court that would define what freedom of religion means

If, on the other hand, Parliament shared that role with the courts in the fact situation that I have given, let us assume that the court ruled in the man’s favour and overturns the action of the government against this man. After having done that, the legislature of the province in question would be free to legislate so as to define or clarify what was meant by freedom of religion. If that were to take away some of this man’s rights, if he thought it did, he could go back to the court and ask the court to overturn what the government had just recently done. The court on that second occasion would then decide whether the provincial legislation was legislation which defined or clarified freedom of religion or whether it was legislation that abrogated the right to freedom of religion. If it was the latter, the court would have the power to strike down the legislation; if it was the former, the court would not because Parliament would have played its role of clarifying or defining that right. That is the type of distinction we seek to make with respect to Section 1.

With respect to the balder question of entrenchment, we as an association do not take the position on the simple question: shall you entrench or shall you not? We have tried to explain to you that we do not take a position on that because, in our respectful view, you cannot take a position on that. You have to know with more precision what you are talking about and that is why we tried to direct our submissions to the wording.

Mr. Munro; Thank you.

The Joint Chairman (Senator Hays): Thank you. Mr. Lafrance.

Mr. Lafrance: Mr. Chairman, as far as we are concerned, I think our submission means that a Charter of Rights and Freedoms should not be entrenched in the Constitution. That power rests fully with Parliament and the legislatures, and they are the ones to decide what are the rights of all citizens.

There is however, a daily, very practical issue. If the Charter were included in the Canadian Constitution, it will be extremely long before any amendments, brought about by some events which could be detrimental to the whole society, can be made, while the Parliament of Canada being elected must know the needs of the population, the rights which should be respected, and which rights and freedoms should be defined in certain circumstances and conditions.

This power rests with Parliament and not with the courts. That is our view.

The Joint Chairman (Senator Hays): Thank you very much. Mr. Munro.

Mr. Munro: I would like to draw the attention of both witnesses to their comments on Section 7 and Section 12.

The Chiefs indicate in their brief that they would be opposed to any changes in Section 7, which seems to me to be contrary to the Chiefs’ representations with respect to capital punishment. They do not, on the other hand, comment at all

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on Section 13, whereas the Counsel does, considering it to be satisfactory

1 am wondering if the Chiefs examined Section 7 and Section 12 in light of the stand that they are known to have taken in other situations with respect to the death penalty? It is on page 4, Chief Ackroyd, of your brief and on page 5 there is no comment whatsoever on Section 12.

Chief Ackroyd: I am sorry, on Sections 7, 8 and 9, we have not taken exception to those sections, or we are not opposed to that wording. We have not raised the issue of capital punishment anywhere in our brief and I am not sure how …

Mr. Munro: Under these circumstances could the death penalty be restored by statute?

Mr. Ackroyd: In my opinion it could be, sir

Mr. Munro: It could be.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Munro. Miss Campbell. I wonder if we might try and keep the questions short now, we are running out of time.

Miss Campbell: Thank you, Mr. Chairman.

My questions will be very brief but I would like to perhaps clarify in my own mind some of these problems. I would like to congratulate you on the clear brief that you presented and I take it you are not necessarily against entrenching but you could see some restrictions within the present proposals, certainly in what you say for Section 1 you would like to see it go further with respect to the discretion of Parliament rather than the courts.

Mr. McLeod: I think that is accurate. We would like to ensure that Parliament continues to at a minimum be able to share with the courts the ability to face whatever social issues face this country in relation to criminal law in the coming years.

Miss Campbell: Well, on that point I also took it from your brief, Mr. McLeod, that you felt Section 26, as it existed, would allow the courts to interpret whether or not the means of obtaining the evidence had been wrong and whether or not the evidence should be allowed in. My understanding is that the Ray case allows any evidence into court today, there is no discretion within the court system to disallow the evidence because of the means used. In fact, at least three years ago the situation was where you had obtained, let us say, evidence illegally, where the police had obtained evidence illegally, be it technical or whatever, because I do feel that the United States case that you quoted perhaps went too far but there was a basic principle that they were probably trying to state, was there time enough to have gone for the search warrant on the part of the police, what was the urgency, and I do not really want to get into the case because I do not know the case, but in looking at it in Canada in the past, maybe three years ago, the courts would have at least looked at the situation in which the evidence was obtained. Today they have to allow it in the courts and it seems to me that I would prefer to see the system go back to what it was before the interpretation of the Ray case.

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Mr. McLeod: I think I would be in just very slight disagreement with you with respect to the interpretation of the Ray case. The situation prior to Ray was that the law in England provided a three pronged test that a court could apply with respect to ruling out evidence that they thought was tainted. In the Ray case that three pronged test was reduced to a two pronged test but the court still does have discretion, and in fact in the very case Chief Ackroyd referred to that is currently before the court in Toronto the trial judge did in fact, on the basis of Ray, rule the evidence out and so there is still discretion in Canada and I think Senator Connolly’s point is perhaps very relevant at this point because that is one of the very things that the evidence task force is currently looking at, as to whether or not the exclusionary rule in Canada should be reformulated in some slight way or in some significant way.

On your first point, our position is Section 26 leaves to Parliament the right to legislate, and then after it legislates, the right of the courts to interpret that legislation, which of course has always been our history.

The Joint Chairman (Senator Hays): Thank you.

Miss Campbell: I do not think I have even had five minutes. I would just like to finish this point if you do not mind.

The Joint Chairman (Senator Hays): One more question, Miss Campbell.

Miss Campbell: Thank you. I do not want to go into that because I really do feel that the interpretation by the courts three years ago is better than the interpretation by the courts today of the Ray case. Perhaps it leaves a little larger area of discretion to the judges and as an aside on that, judges have the discretion to interpret the evidence before them and yet you would like to see Parliament put limitations to their interpretation, in other words take it away from the courts.

The last point I would like to make is on the legal rights and I think the one thing you have forgotten is that the law is not the same for all, at least you are protecting under the law of rights and freedoms the individual’s right, the person who does not have a good lawyer, the person who does not know that his trial should be processed in a reasonable fashion, in the United States I think a trial must begin within three months or it is dismissed automatically. We do not have that time rule but it seems to me that Section 13 should provide even more protection than this section does for the individual who takes the stand. If I am not mistaken, some of the courts today apply it, some of the judges will say to the witnesses automatically you have the right to protection, but there is no onus on the court to do that, it is up to the individual judge to inform the person rather than automatically the witness should be told. You are against the witnesses being told?

Mr. McLeod: If I may, that is an area where our brief I think differs from that of the Chiefs. We agree with Section 13, we like the idea of witnesses being told and having automatic protection.

Miss Campbell: All right.

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The Joint Chairman (Senator Hays): Thank you very much, Miss Campbell. Senator Roblin.

Senator Roblin: Thank you, Mr. Chairman.

I am very pleased to see our witnesses here this morning because I think they are performing a very useful function for us. We have been listening with much interest to the people who have been presenting the case for individual rights with all the importance that attaches to that phrase and you are here today to remind us that there is also the interest of society to consider as an aspect of this matter, and bringing our attention to the fact that the dividing line between the interests of society and the rights of an individual is an exceedingly difficult dividing line to determine, and certainly to enshrine in a document of this sort. I think this is a very useful thing to do.

I have two points that I would like to enquire about. The first has to do with this point you raise, Chief Ackroyd, in your brief about in effect the situation where the jot and tittle of the law, let us say, with respect to the rules laid down interferes with what appears to be natural justice and you point out to us in the United States, they are very court conscious down there, perhaps more than we are, and they take advantage in criminal proceedings of every jot and tittle of the law. It brings up the dilemma of how we get certainly in the administration of justice which perhaps depends on strict adherence to the written word, and yet that flexibility at least in procedures which does not interfere with what appears to be the interest of society in its protection from criminal activity. I think the Crown counsel averred to this same point, the question of certainty versus flexibility.

Now, can either of our two sets of witnesses throw any light that would help us in formulating the words in here that would protect individual rights as far as may be desirable and at the same time not infringe on the possibility of judges having discretion to deal with matters which appear to interfere with the natural flow of justice. Can you help us on this difficult question, where is the dividing line between certainty and discretion?

Mr. McLeod: Well, Senator, I think I have concentrated both in our original submission and in answering questions on Section 1 and Section 26, that if one looks at the rest of our brief you will see that the Canadian Association of Crown Counsel finds much of this working to be satisfactory, and much of that wording in the other sections is I think trying to do the very thing that you have referred to, to balance that certainty with flexibility. I would refer as an example to Section 7, which 1 interpret Section 7 of the legal rights, being the first of the legal rights, as being a section which is in effect what we have referred to in criminal prosecution as a basket clause. It is a form of general overriding provision in relation to legal rights that gives the court a significant discretion to ensure that no person is deprived of the right to life, liberty or security except in accordance with the principles of fundamental justice. As we interpret that, fundamental justice means something very close to natural justice, which is a well-known Canadian legal term, which in turn means basic procedural fairness, and it would seem to me that, for example, as I understood the Canadian Civil Liberties Association, they said

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Section 8 and Section 9 are wrong because Section 8 and Section 9 speak in terms of: on grounds and in accordance with procedures established by law. They say that means that Parliament could legislate anything, therefore there is no entrenchment.

I would suggest respectfully on the contrary that Section 7 might well provide a general overriding power in the court, and I have to confess I have not researched that to the point that I would be absolutely certain about it, but the wording tends to suggest to me that that very delicate balance between the certainty of the law as passed and the court’s ability to protect the accused individual would flow from something as found in Section 7, that is one example at least.

Senator Roblin: 1 want to refer to Section 7 myself, because I was listening to the questioning of Mr. Munro on that point with respect to capital punishment. My understanding is that both the Chiefs of Police and perhaps the Crown Attorneys have expressed an opinion, no, the Crown Attorneys have not; The Chiefs of Police have expressed an opinion in favour of capital punishment. I am not sure I understand the answer given to Mr. Munro on the question, because Section 7 says that everyone has a right to life. I think I can stop there. That deals with my point.

Section 12 is in similar language, because that says that everyone has the right not to be subject to any cruel or unusual treatment or punishment.

So, my question is: have the Chiefs of Police any opinion as to how their stand on capital punishment would be affected by either one of these two sections of the proposed bill?

Chief Ackroyd: Well, Mr. Chairman, we did not do any research into this with any depth. We did not do so because we did not feel there was anything in this Charter which would prevent the bringing back of capital punishment if the government of the country so decided.

As I understand it, capital punishment in the United States has not been regarded as cruel or unusual treatment because it has been conducted in other places in the world, and therefore, those words may not prohibit capital punishment from being brought back.

So we have not really addressed ourselves to it. But these would be my views off the top of my head.

Senator Roblin: I appreciate that, and I have been rather impressed by the contortions of the jurists in the United States attempting to deal with the matter of capital punishment under the heading of “cruel and unusual punishment”. They seem to be able to find both sides of that issue from time to time

Thank you, Chief.

The Joint Chairman (Senator Hays): Thank you very much, Senator Roblin.

I should like, on behalf of the Committee, to thank the Canadian Association of Chiefs of Police and you, Chief Ackroyd as well as Chief Welsh, Mr. Lafrance and also the Canadian Association of Crown Counsels, Mr. McLeod and Mr. Langston for being here this morning.

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[Text] 1 should like you to know that for a number of years 1 was the Chairman of the Police Commission, and I know the great problems you have, and 1 can assure you that in our deliberations we will be using your briefs, and we are very pleased to have them.

Thank you very much.

The Joint Chairman (Mr. Joyal): I will now call the representatives of the Yukon Government to the witness table.

1 would like now to call to the witness table representatives of the Government of the Yukon, the honourable Mr. Pearson, Mr. David Morrisson, and the honourable Dan Lang.

While waiting for the witnesses to come to the table, I have been requested by honourable Senators to deal with the matter of what time we should adjourn proceedings this morning in view of the fact that many honourable members around this table would like to attend the funeral of the late Governor General, Mr. Jules Léger.

As I understand it, we have to be present in the church by 1:30 o’clock and members of the Senate would like, of course, to call at their offices and prepare themselves accordingly.

I would therefore suggest that we might adjourn by 12:15 p.m. our proceedings this morning, if that is agreeable.

I would like now to call again on the Government of the Yukon and its representatives, the honourable C. W. Pearson, Mr. David Morrisson, and the honourable Dank Lang, to take their place at the witness table.

I understand, Mr. Pearson, you have an opening statement and you will be agreeable also to answering questions which may be put to you by honourable members of this Committee. I would like now to invite you to address this Committee.

Hon. C. W. Pearson (Leader, Government of Yukon): Mr. Chairman, I would like to start by apologizing to the Committee for not having our submission to you nor my statement transcribed in both languages. We did feel we were working under some time constraint and just did not have the time to do it.

1 would like also to thank you and members of this Committee for making available the time this morning to allow the Government of the Yukon to formally present its views and concerns on the proposed patriation and amendment of the Canadian constitution. I would also hope, Mr. Chairman, that 1 can enunciate some of the aspirations of those Canadians that live north of the 60th parallel in this great country.

Mr. Chairman, we have presented to you and your Committee a formal document which addresses our major concerns with the proposed constitution act. I want to emphasize, Mr. Chairman, that we in the Yukon want to join this federation of Canada as full participating Canadians. Our home, the region of this country that is larger than a number of the existing provinces, and as it is developed, will provide untold wealth to Canada.

We have in place, and functioning effectively, a provincial type government with virtually all of the responsibilities of the existing provincial governments in Canada.

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This government in answerable to the people of the Yukon through the Yukon Legislative Assembly which was first wholly elected in 1907. Mr. Chairman, we have been working for a good many years and for that reason our presentation should not be interpreted as approval of the proposal before you with the exception of the specific points we have raised.

In fact, some of us share reservations which you have already heard voiced by others.

We decided, Mr. Chairman, that your time and our interest would both be better served if we concentrated in our paper on our concerns that both summarized and epitomized the Yukon people’s viewpoint.

We, and Mr. Chairman, when 1 say “we”, I mean all citizens of the Yukon, face a number of problems in respect to Canadian constitutional development that have long been solved in southern Canada.

We knew we had special problems that should be considered by the federal government during the long summer debate, but try as we might, this is our first opportunity to bring forward our concerns.

1 must say that, valuable as this occasion is to us, it simply is not a substitute for a seat at the table during the planning process, yet the Government of Canada saw fit to exclude the elected Government of Yukon from any role whatsoever except for an invitation to watch the First Ministers’ Conference in September as an observer.

In retrospect, we think it did not even occur to the Prime Minister and many of the senior Ottawa bureaucrats that a small government 5,000 kilometres away would respond when the national government declared its priority timetable for constitutional action. To the evident surprise of some, we did prepare our concerns. We came to Ottawa and met with two ministers who indicated we would have some involvement. It was not to be, Mr. Chairman, and I simply say today that while we do want to enter confederation, we have not found the federal government much interested in helping us join.

Had we been given an opportunity to participate earlier, we would have outlined our concern that the proposal before you now fails to make provision for the entry of new provinces into Confederation and would have jumped immediately on Section 6—mobility rights—as presenting problems for us with the preferential hiring clauses attached to the Alaska highway natural gas pipeline and on which our support for the entirely project is partially based.

We would also have raised the question of the effect proposed changes to the Canadian constitution might have on our number one priority in the Yukon, the settlement of the Yukon Indian land claims.

Mr. Chairman, these negotiations have been in progress for seven years, and for the first time there are real indications that a settlement might be reached. But has anyone looked at this proposed constitution with a view to assessing how—or

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even if, it will have any effect on the aspirations of one-third of our population? I somehow doubt it, Mr. Chairman

It should be no secret to anyone in Canada, Mr. Chairman, that the people of the Yukon would like to become first class citizens of this federation someday. The way we do that is to achieve provincial status so that we have the same rights and privileges as other Canadians.

We cannot be denied that basic and fundamental aspiration.

As you know, the BNA Act has to be amended in 1871 to provide for the entry of new provinces. Our government holds the view that any new constitution brought into force at this point in time should be structured adequately to meet the express needs of the entire nation for the foreseeable future. Therefore, given constitutional evolution in the Yukon—and elsewhere north of sixty, there must be provision for new provinces.

We submit that the question to consider is not when or should the Yukon become a province, but rather it is the simpler question: should the Canadian federation be constitutionally prepared to admit new provinces sometime in the future?

My government was elected with a mandate to seek and consolidate responsible representative government in the Yukon. Our policy is to move forward in stages with provincial status as our ultimate goal. Our paper makes clear that ownership of natural resources is part of that goal. We want to be a provincial success. Provincial status without resources would jeopardize our success from the beginning

Mr. Chairman, of more immediate concern is the apparent conflict between Section 6 of the constitution act and Section 26 of the terms and conditions drawn up under the Northern Pipeline Act. 1 raised the matter in the Yukon legislature on October 30, and we have received no indication from the federal government that our concern is not well-founded. On the contrary, we have been given to understand that the Government of Canada is not signing the terms and conditions because they are indeed considered to be in conflict. Certainly the Minister responsible for the pipeline, the Honourable Senator Olson, has been unable to give any assurances on this subject and he has been asked for them

In closing, Mr. Chairman, may I point out that we are addressing both the immediate and the eventual future. Our problem with mobility rights concerns jobs and orderly development tomorrow. Our question about provincial status anticipates an exciting new chapter for Canada.

Recently I told the Yukon Legislature that I believe the territory will prosper and contribute more than its share to Canada. I repeat that confidently today; but we must have understanding and help from the Parliament and Government of Canada. That is why we are here.

Mr. Chairman, these are just some of our concerns. I am confident that if we had more time we would have been able to be much more detailed in the concerns that we really, truly

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feel from northern Canada in respect to the patriation of the constitution.

Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Pearson.

I would like to invite, as our first questioner this morning, of the representatives of the Government of the Yukon, the Honourable Erik Nielsen, followed by Mr. Fulton

Mr. Nielsen: Thank you, Mr. Chairman. Welcome Mr. Pearson and Mr. Lang.

I would like to refer to page 6 of your brief, where you address the question of provincial status and the timing of that achievement.

Can you answer this for the benefit of committee members? If Yukon now had control of its natural resources in the same way as each of the provinces, would Yukon be economically prepared to assume the burdens of provincial status?

We are confident that we can become a province, and the key to becoming a province is the ownership of our resources as the other provinces own their resources.

Mr. Nielsen: Let me put it another way. Without the economic base, which would be provided with ownership of natural resources, in your view could Yukon ever become a province?

Mr. Pearson: No, I do not believe so; nor do I think Yukoners would ever want to become a province without that economic base, because, once again, we feel strongly that we have the wherewithal in the territory to be a participating part of Canada. I would be to Canada’s benefit, in the long run, to have Yukon as a province. We have no doubt about that.

Mr. Nielsen: Moving on to another point made on page 6 of your brief, with respect to your suggestion of the incorporation of a formula for the entrance of future provinces into the Canadian Confederation, could you elaborate on that and inform us what you mean with respect to the use of the term “formula”?

Mr. Pearson: Mr. Chairman, it may well have been a poor choice of words in this context. I very much appreciate the opportunity to elaborate a bit on it.

Mr. Chairman, under the terms of the present BNA Act, there is a process whereby new provinces can come into confederation

We are very concerned that there is no similar process initiated in the new constitution. That hits right at the heart of our ultimate goals in the territory to become full-fledged citizens of Canada. The term “formula” is probably a poor word to use. “Formula” is probably a poor one to use, in that

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what we are really concerned about is that there be a process in place for new provinces

Mr. Nielsen: Would you therefore suggest incorporation by way of amendment to the proposal before us, the addition of provisions which would maintain the process now available for the entrance of new provinces into the Canadian Confederation?

Mr. Pearson: Yes, Mr. Chairman.

I do not believe we are looking for anything new, or something that does not exist today.

It is our concern that what is being taken away is a basic fundamental right that we had someday to aspire, someday to become a province, and that right has been taken from us in this proposed constitution

Mr. Nielsen: I notice also in your brief that your government addresses itself to the question of the rights of native people in the Yukon

Have you had any input in the presentation of your brief to us today from the native organizations of the Yukon?

Mr. Pearson: Mr. Chairman, we did not have any direct input. However, we have said for years, since we were elected, that we do represent all the people of the territory. I have received correspondence from the president of the Council for Yukon Indians. It may be of benefit to the Committee, Mr. Chairman, if you would allow me to table that correspondence with you. It gives an insight into their aspirations, and I can say unequivocally that we agree and support them 100 percent, save and except for the suggestion in the letter that there should be no development in the territory until land claims are settled. We feel strongly Mr. Chairman, that development, both materially and politically must continue and could go hand in hand along with the land claims settlement. I believe it would be of benefit if we could be allowed to table this for your information.

Mr. Nielsen: Mr. Chairman, may I seek your co-operation in putting the suggestion to Committee members that Mr. Pearson be allowed to table this letter from the President of the Council of Yukon Indians.

The Joint Chairman (Mr. Joyal): Yes. I do not see any opposition around this table for that proposal, it is agreed. Monsieur Corbin.

The Joint Chairman (Mr. Joyal): As soon as the Clerk has the letter we will have photocopies and it will be circulated around the table.

Mr. Nielsen: Thank you, Mr. Chairman. I take it the exception you point out, Mr. Pearson, entertains the position of the Government of Yukon that negotiations towards a fair and just settlement of all Yukon native claims can proceed in harmony with development, both materially and politically, without prejudicing at all those claims of the native people. Would I be stating it correctly?

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Mr. Pearson: Yes, without any doubt. In fact we are developing materially in the territory right now. We are developing politically and we are progressing with the land claim settlement. So the fact of the matter is that all three can go along, and should continue to go along hand in hand.

Mr. Nielsen: The last major point that was addressed in your brief, in view of the limitations of my time and I realize this is my last question of my round, and this is a question as to mobility rights.

You say you have received no indication concerning the resolution of this question, the socioeconomic terms and conditions which were prepared pursuant to the Northern Pipelines Act have been completed for some time and have been with the Cabinet and await Cabinet at this moment, is that correct?

Mr. Pearson: Yes, that is correct, Mr. Nielsen.

Mr. Nielsen: Have you corresponded or communicated with any minister of the Government of Canada, or with the Government of Canada concerning the possible date that you might obtain an answer to the question of the approval of those socioeconomic terms and conditions with respect to mobility rights?

While you are answering that question, would you please inform committee members how that failure to resolve the question is affecting your planning as a government and the cost of that planning to your government?

Mr. Pearson: Mr. Chairman, if I may take the questions asked by Mr. Nielsen in a little different order, so that I can answer, I hope, chronologically.

We have telexed the Prime Minister asking him to intercede on our behalf in respect to the mobility clause and the signing of the terms and conditions.

Mr. Chairman, we have been in the process of negotiating a socioeconomic agreement with Canada in respect to the construction of that pipeline in the Yukon for three years. The clause in respect to mobility, preferential hiring rights, preferential training for Yukoners has been in existence for most of that three years and has been the one section of that whole agreement that has been virtually inviolate until today. It just simply has not been touched. It was agreed upon, it was felt by the proponents and by the Northern Pipeline Agency acting on behalf of the Government of Canada, and by our government, as being the best possible method to mitigate against some of the horrendous, we can foresee, circumstances that could arise as a result of the experience in Alaska with the Alyaska line. It has been the one thing that has remained intact all of the way through. The doubt raised now is a very real one and of major concern to us. It may well be, Mr. Chairman, that we as a government would find it necessary to withdraw our support of the construction of that pipeline should this clause have to be amended in order to meet the concerns of the new constitution. That I would suggest, Mr. Chairman, is going to raise another major issue in Canada that we should just not face at this point in time.

Mr. Nielsen: Thank you, Mr. Chairman. I hope that there will be a further opportunity on a second round.

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The Joint Chairman (Mr. Joyal): I can tell you, Mr. Nielsen, be confident. I think the seriousness of the question means that that point should be investigated thoroughly by the members of this committee. I would like to invite now Mr. Fulton.

Mr. Fulton: Thank you. I would first like to compliment Mr. Pearson on the brief he presented here. I think it goes a long way to setting the record straight, contrary to the sort of bush league picture that is painted by the eastern press of the Yukon. Being the member immediately south to the Yukon, i am sensitive to a lot that goes on in the press back here.

The first point I would like to address and to have you address, Mr. Pearson, is in relation to your comments regarding aboriginal people and the problems within the resolution as it now stands. Certainly my view, and I would like to hear your comments on it, that is that the resolution does not go anywhere towards either entrenching the rights of the aboriginal people, not only of the Yukon but all of Canada, but in fact does not set any process in motion towards that settlement. In fact, in all of the sections of the resolution casts the settlement of that back onto the common law which is certainly something, in cases such as the Calder case seems to be a totally ineffective way of dealing with it.

1 wonder if you could perhaps outline for the committee, so we can have a better understanding as we approach the process of amendments, exactly what your views are in relation to aboriginal rights as related to the territory.

Mr. Pearson: Well, Mr. Chairman, there can be no doubt that my own personal view, and that of the Government of the Yukon are that the native people in the Yukon Territory, and I am only dealing with the native people in the Yukon Territory, do in fact have a legitimate aboriginal claim. Their claim has never been extinguished, they are different than native people in southern Canada in that way, and that is why we have been very supportive of a land claim settlement for all of these years.

I am very concerned that the proposed constitution does not even recognize that we do have this large segment of our population in Canada that are in fact aboriginal peoples, and they should have and do have certain rights that should be recognized. There, to me, does not seem to be any indication of that at all and this is of real, major concern.

Mr. Fulton: Thank you, Mr. Pearson. My second question, and I recognize that you are on the public record as supporting the settlement of aboriginal claim in the Yukon prior to achievement of provincial status.

I wonder if you could comment why you did not touch on that in the brief and whether or not in fact that is still the position of the government of the Yukon.

Mr. Pearson: Oh, it is a very easy position to take because there will be a settlement of the Yukon land claim prior to provincial status, there is little doubt about that.

1 feel we are getting very close to a fair and an equitable settlement of the land claim.

Mr. Nielsen: That appears in your brief too.

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Mr. Pearson: I believe that we do indicate that there is a chronological order of things to happen in the territory, and there is no doubt about it. A provincial status, we want the provincial status to be something that will be of benefit not only to the white people in the Yukon Territory but to the Indian people in the Yukon Territory too. We as white people are going to benefit from their land claim settlement, and they in turn are going to benefit from provincial status, there is no doubt about it

Mr. Fulton: Thank you, Mr. Pearson. In relation to your brief, you touch on the concept of self-determination in relation to the Yukon Territory. I wonder if you could touch on that in relation to the land claim settlement that was based on an entrenched aboriginal title within the resolution as to exactly how the self-determination, for example, of the Indian people of the Yukon would fit within that scheme in terms of the self-determination you speak of for the government and the peoples of the Yukon, and self-determination, as spoken of by many Indian groups, and certainly the CYI in relation to the Yukon Territory.

Mr. Pearson: A very, very difficult question and frankly, Mr. Chairman, 1 do not have the answer to that question. It is one that has been faced by Canada for some years now, a hundred and some odd years and far be it from me to sit here and say I am the expert on how this can be resolved. I am sorry, 1 just do not know. I do want to convey to the Committee the concerns of the people of the Yukon that this right has not been recognized in the constitution.

Mr. Fulton: Thank you, Mr. Pearson. My second part of the question is a follow up on Mr. Nielsen’s question in relation to the problems of mobility rights. If the resolution goes ahead unamended as it is, certainly the promises we heard coming from the Lysyk inquiry and within the Pipeline Act itself, and all of the negotiations that have gone on in relation to that. Having worked in the Yukon a few years ago, I appreciate the serious problems that the workforce has within the Yukon itself from southern contractors coming up and bringing the labour force with them, and having southern hiring halls essentially, sending workers up into the area.

Exactly how disastrous do you think it would be if the resolution went ahead, without an amendment, not only in relation to the Alaska Highway pipeline but in relation to other direct hiring and workforce programs that the Government of Yukon would bring in either still in territorial status, or in future provincial status.

Mr. Pearson: Mr. Chairman, we do have a unique situation north of the 60th parallel in Canada and it applies to the Northwest Territories as well as the Yukon. The problem is a real one in that we just cannot compete as a people, as a regional people with southern Canada when it comes to expertise on major projects, because we have not had that experience, nor have we had that training.

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All of the work that we have done for the past three years in preparing for this pipeline construction has been geared to these restrictions, if you will, being imposed upon the proponent in respect to the hiring of people, the in-migration of people into the territory. We do not suggest to anyone that this is going to be the end-all answer, but after taking a long hard look at what happened in Alaska, particularly in Fairbanks, it was felt that what we had proposed is the best possible solution to a problem that we are still going to have. It is just that it was going to be mitigated to some extent. We felt that to the extent that we could then cope with it, that without that mitigation we are facing a Fairbanks type situation, where they had the boom and the bust, that they still have not recovered from. It would just be absolutely devastating to the territory, and as I said before, would very likely cause our government to withdraw totally its support for the construction of coast, it has got an island, but it has not got any water.

Mr. Fulton: Thank you, Mr. Pearson. Again, I would just like to compliment you on your brief. It goes a long way, I think, to clearing up the picture that has been painted here in the east of the Yukon.

Mr. Pearson: Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fulton, for your co-operation. I would like to invite now the honourable Senator Lucier.

Senator Lucier: Thank you, Mr. Chairman. I also would like to welcome Mr. Lang, Mr. Pearson and Mr. Morrison to Ottawa and to compliment them on their very fine brief. I think it is not only a very positive brief, because it outlines the areas of their concern, but it also has given us what they think our solutions to the problems are, which I think are very important when you deal with briefs like this.

I would like to apologize to Mr. Pearson who is one of my golf partners, for dragging him all the way from Hawaii to this, but I am just not going to because he knows I would not mean that.

Mr. Pearson, in your brief, dealing with the mobility rights, I am in full agreement with what you have stated: I have brought this up on the Senate Pipeline Committee with Senator Olson; I have also brought it up with the Minister of Justice when he appeared before this Committee. I think that you have come up with a solution. I have asked before for a solution, not just what the problem was and I think you have come up with a solution. As I said before I am very pleased with what you have put in your brief.

On the ownership of resources, I am a little confused where you say in your brief that you want control and ownership, but in your summary you say control. It seems to me that there is a bit of a difference in the two.

Mr. Pearson: I do not think there is any difference in the two, Mr. Chairman. There can be no question in anyone’s mind of, if in fact the Yukon is ever going to be a province it

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should be given the right to become a province under the same terms and conditions as the other provinces in Canada. Mr. Chairman, that means control and ownership of the resources in the province.

Senator Lucier Thank you, Mr. Pearson. It is just that you had “control” in one area and “control and ownership” in the other. I am just thinking of the Newfoundland situation where they have offered control but not ownership of the off-shore rights, and I was just wondering if it may not be something that you would want to make sure you have clarified.

On the aboriginal rights, Mr. Pearson, I have a problem. I think in aboriginal rights you are suggesting that it should be entrenched, and you recognize in your brief the difficulty of entrenching because you cannot delineate it at this time.

We will be hearing probably from the native people very shortly. I just wonder, I think their position will be something along the lines of full and unconditional use of lands which they have not surrendered, which is really what aboriginal rights, in their view, is. I would question whether you would be prepared to see that entrenched in the constitution when you talk about aboriginal rights.

I am just wondering if Section 24, as it is written, does not go about as far as you can go with protecting the rights of the native people when you say you are not going to take any of their rights away. I wonder if you would not get into some kind of trouble if you tried to entrench them right now without really knowing what they are.

Mr. Pearson: I do not think there is any doubt, Mr. Chairman, that there are going to be real problems created. As I said before, I do not profess to know the answer to this problem. It has been around a long time.

Mr. Chairman, I just think that is a basic fundamental principle that has been lost in the shuffle, and that is the Indian people of Canada have, in fact, had certain rights, under what was the constitution of Canada, the BNA Act and they are going to be losing all of those rights and have no recognition at all under the new constitution. I just question very much the propriety of such an amendment.

Senator Lucien On your provincial status section. I again am in agreement with your stand. What you are saying in your brief, Mr. Pearson, is that the people of the Yukon will decide provincial status for the Yukon.

I suggest to you that that is much different than the previous government, the stand they had taken and I am very pleased to see that you have rejected the stand of the previous Conservative government.

Mr. Nielsen: That is rubbish, absolute rubbish.

Senator Lucier: Maybe, Mr. Chairman, before anyone goes too much further I should read out, on page 209 of Senate Debates I asked the question at one time of Senator Flynn when he was the Minister of Justice, the Conservative government’s position concerning provincial status and the reply from Senator Flynn was:

I have sought a complete legal opinion from my officials.

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On policy matter, the Prime Minister has said repeatedly that if the people, subsequent to full consultations, demonstrate in a referendum their wish to gain full provincial status, and if the provinces agree …

Mr. Fulton: One final question, Mr. Chairman. In relation to the 141st meridian, I have been in hot pursuit for some time of the old Hay-Herbert treaty and the 1903 problems that the government of this country brought upon us and the Pacific northwest, including the Yukon. At the present time, and on achieving provincial status, which I assume will occur in the not too distant future, is it your view that the offshore area in the Beaufort Sea running on the eastern side of the 141st meridian would be sovereign territory in terms of offshore resources to the territory or to the province.

Mr. Pearson: Yes, of course, Mind you we need an amendment to the Northwest Territories Act first, as well as the Yukon Act, because at the present time those waters are deemed to be sovereign Northwest Territories’ waters, not sovereign Yukon waters. Yukon is in the unique position …

And then you will get provincial status.

I submit to you that is probably the most dishonest approach I have ever seen to provincial status when they know you will never get provincial agreement from the 10 premiers. So, in effect, they are saying you will never get provincial status as long as they are the ones deciding how it is done.

Mr. Munro: You are the expert on dishonesty.

Mr. Pearson: Mr. Chairman, it is difficult for me to try and justify what Senator Flynn said at that point, but it should be clear to everyone that, once again, we expect to become full-fledged citizens of Canada, to have all of the rights and all of the privileges of everyone in southern Canada and we, for the life of us, cannot see any reason why that should not happen at the appropriate time. The key, Mr. Chairman, is that the people of the Yukon Territory, must be a party to that decision.

Senator Lucien I fully agree with Mr. Pearson and I am merely stating that his proposal could not take place as it would be set out by the opposition, by the people who have continuously pretended that they were interested in provincial status for the Yukon and who have gone to great lengths to make sure that it would never happen under their regime.

Mr. Munro: It was our idea.

Senator Lucien It was your idea, you just did not know how to carry it out.

Mr. Munro: Well, you have got the chance, let us see you do it.

The Joint Chairman (Mr. Joyal): Order, please.

Senator Lucien Thank you, Mr. Chairman.

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My next question, Mr. Pearson, deals with the First Ministers’ conferences. 1 fully agree with you again that you should be represented at the First Ministers’ conferences. Would you expect to have the full voting rights at these conferences or would you agree to some modified procedure taking place?

Mr. Pearson: Certainly, Mr. Chairman, as I stated so many times during the course of this summer we do not expect to go to First Ministers’ conferences as a territory and have all the rights and privileges of the provinces, because we are not a province and we recognize that. However, Mr. Chairman, we have emerged as a viable regional government in Canada, representing the people of the Yukon Territory, the first one in the Yukon’s history and we should be accorded the courtesy of being heard at first ministers’ conferences when issues are perceived by us to be of such vital concern to us. That is really all we are looking for.

We want to be able to sit down and say: look, this is the problem from our point of view. It is likely to be a different point of view than what the other 10 premiers have, but, Mr. Chairman, I challenge those 10 premiers to make a comprehensive decision. How can they possibly make a comprehensive decision when they have no idea of what the problems are in respect to one third of Canada’s land mass and some 60,000 souls that live in that one third of Canada’s land mass. We are just completely forgotten when these decisions are made and, Mr. Chairman, I put before you the very subject matter of your discussions these long weeks. If we had been heard possibly it would not have been necessary for us to be here today.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Lucier. Before I recognize the honourable Jake Epp…

Senator Lucier: One more question, Mr. Chairman, just a short question.

The Joint Chairman (Mr. Joyal): Well, your time is completed. I just wanted to say before recognizing the honourable Jake Epp, that I would like to remind all honourable members of this Committee that we are involved in the study phase as opposed to the debating aspect of it and I understand that our witnesses have taken for granted that they will not be taking part in a partisan debate and I am very grateful to you for your answers along those lines, and I would ask very respectfully that the honourable members of this Committee take into account that there are other places on the Hill for debate. We are in the study phase and I would recognize you for your last question, Senator Lucier.

Senator Lucier: My last question was merely to ask Mr. Pearson if he has corresponded with the premiers of the provinces to ask them to agree to the Yukon taking part in the First Ministers’ conferences. I think it would be much easier for the federal government to agree if you have the agreement of the provincial premiers.

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Mr. Pearson: Yes, Mr. Chairman, and the answer that we keep getting back, Mr. Chairman, in respect to the First Ministers’ conference that was held in September was that in fact the Prime Minister of Canada is the Chairman, it is his conference and it is his decision to make who is going to be there and under what circumstances they are going to be there.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Lucier, for your co-operation. The honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman.

I want to also welcome the government leader, Mr. Pearson and his Minister, Mr. Lang. Mr. Chairman, I am aware of your admonition in terms of the partisan debate but I must point out to you that it was the government’s position at the time the debate was in the House, they said they wanted to transfer “the debate” to this Committee and so while I accept your viewpoint, I think it also has to be put in the context of the position the government gave us at that time

I am also pleased that Senator Lucier, Mr. Pearson, has accepted today the solution of the Yukon in terms of mobility rights and I am sure with his stature in the Liberal Party he will press for that amendment on behalf of not only the Yukon but also the Northwest Territories.

Senator Lucier: You can be sure of that.

Mr. Epp: Additionally, Mr. Pearson, I am pleased that in your submission, along with the letter from the Council of Yukon Indians, in terms of the agreement that has now been found between the government and the Council of Yukon Indians as to process of, first of all, getting responsible government, putting responsible government into place and making it work and then being able to put forward the points of view as to the pros and cons of provincial status, and then the people of the Yukon, as was initially promised by the then Prime Minister, Mr. Clark, in order that the people of the Yukon would make that decision, both through referendum and also, I imagine, through endorsation of a party that ran on that label, namely that this was going to be the process with the eventual decision on provincial status, one which was rejected in fact by the Liberal Party as not being a valid platform.

I would like to ask you, Mr. Pearson, first of all, did you make a request to appear before the First Ministers’ conference on behalf of the people of the Yukon?

Mr. Pearson: Yes, Mr. Chairman, I did.

Mr. Epp: Were you accepted?

Mr. Pearson: No.

Mr. Epp: Why not?

Mr. Pearson: Well, Mr. Chairman, I am sorry, 1 cannot say why we were not accepted. Frankly, it is still beyond our comprehension why we were not accepted.

What we were offered, Mr. Chairman, was a seat at the First Ministers’ conference as an observer, and I chose at that point in time to not come to Ottawa and attend that confer-

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ence because I felt that I could be doing something else on behalf of the territory, and observe the conference in far more detail via television, and so we did not attend for that reason.

Mr. Epp: Mr. Pearson, in terms of the request you made to the former government as to process to eventually confront the question of provincial status, either the validity of it or otherwise, the request that you made and to which there was a response, today the question was raised that you have rejected that process and you request of earlier times. Is that interpretation correct?

Mr. Pearson: Oh, not at all. The process, Mr. Chairman, that is in place is one that is working, we are progressing, albeit slowly, but it is one, Mr. Chairman, that the present Minister of Indian Affairs and Northern Development has in fact recognized and has stated that he is not going to set back in any way. He seems to be in agreement with what is happening now and we are very pleased with that, but, Mr. Chairman, I must emphasize that the process that is in place is one that is working and is working well.

Mr. Epp: Mr. Pearson, have you received a commitment from the present government that they will move the Yukon toward provincial status with the view to having a decision taken in their first term of office, namely this Parliament?

Mr. Pearson: Oh, not at all, Mr. Chairman, no.

Mr. Epp: Mr. Pearson, I would like to get to the two questions of joining a territory as a province to the federation as well as resources. My interpretation of the amendments to the British North America Act of 1871 are the following:

that while it is in the Canadian experience to obviously ask for provincial concurrence where a territory is added to the federation in the form of a province, that while it is in the Canadian experience and obviously that is the route that I prefer, that there would be concurrence, that in fact there are two principles which prevail in the amendment of 1871, namely, one, that through an act of Parliament, in fact, a territory can be granted provincial status if that territory is wholly within the Canadian boundaries to begin with and secondly, if that act does not change the boundaries of existing provinces cojunctional to the territory to be made a province, and so 1 say to you that it is my interpretation of the 1871 amendments that in fact while concurrence is preferred on the part of the provinces, that in fact it is not needed and it is within the power of the federal government, through an act of Parliament, in fact to grant provincial status, obviously a step that should be considered would be one whereby the people of the territory concerned would be in agreement. Is that your interpretation?

Mr. Pearson: That is correct, Mr. Chairman, but I would like to reiterate what Mr. Epp has said in that certainly the concurrence of the provinces would be the desirable route to go.

Mr. Epp: In terms of resources, you mentioned that control and ownership were synonymous and with all respect, Mr. Pearson, I do not agree. I would like you to explain that, and I

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take my position from the prairie experience that we had in which there were provinces only in the prairies that when they joined Confederation were not given ownership of their resources and the difficulty on the prairies was that we did not have an economic base, a tax base, to put in the infrastructure that was so desperately needed in Manitoba from 1870 and in Saskatchewan and Alberta from 1905 on, and for that reason when in fact the amendments to the British North America Act were made in 1930, namely the Natural Resources Transfer Act, it was only at that stage that the prairies in fact became full-fledged members of the Canadian family with full provincial status which was enjoyed by the other provinces. The question there was not one of management or control of resources, but rather ownership, and that management and control flow from ownership but it cannot be the other way around

Mr. Pearson: Yes, 1 agree 100 per cent, Mr. Chairman.

Mr. Epp: So when you speak about resources in terms of the Yukon context, I then take it that what you are speaking about is ownership rather than control or management?

Mr. Pearson: Oh, yes, there is no doubt about it, Mr. Chairman. If we are going to become part of Canada on the same terms and conditions as other parts of Canada, if we are going to become a province then it must be with the ownership of our resources

Mr. Epp: Could you give to the Committee, Mr. Pearson, your view of the proposed amending formulas? I know that is not clear in the proposed resolution because there is an amending formula in Section 41, there is a second amending formula in Section 42, and then there is the pie in the sky amending formula which might be dreamed up by some person in the present federal government, the dynamics of which none of us seem to know. What position does the amending formula place the citizens of the Yukon in at this point, should this amending formula be entrenched?

Mr. Pearson: It is very difficult to tell, Mr. Chairman, because we are in fact referred to in a portion of the constitution and then we are specifically exempted from other portions of the constitution and we have a very real question as to exactly what does apply to the Yukon territory and what does not apply. It is a question, I am sorry, I cannot answer

Mr. Epp: Do you feel that under Section 41, where the government takes the regional concept, that you are included in any of the regions?

Mr. Pearson: No, we do not think at this point that we are considered a region or that we are included, in fact, in any of the regions.

Mr. Epp: So it is possible under Section 41, in fact, the citizens of the Yukon who are also citizens of Canada, in fact need not even be consulted?

Mr. Pearson: That is correct.

Mr. Epp: Thank you, Mr. Chairman.

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The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp. 1 would like now to recognize Mr. George Henderson. Mr. Henderson.

Mr. Henderson: Thank you very much, Mr. Chairman.

First of all I would like to welcome you, Mr. Pearson, and my good friend Mr. Lang to Ottawa. I must say that your brief presented here today is an excellent one and it gives us a lot of food for thought, and since I come from a very small province with only 120,000 population, I can understand some of the frustrations that the Yukon territories must feel, and specially in federal-provincial conferences, be it First Ministers, or indeed, ministerial conferences. I remember the last one that Mr. Lang and I attended in Toronto two or three years ago, I had to do a lot of lobbying at that time to try and get a seat at the table for your people and my lobbying at that time also was with other provincial governments.

1 guess my question would be: Do you feel that a territory with a population of 25,000, such as the Yukon, will it have any effect on the timing of that sort of a population becoming a province, do you see that as a sort of drawback to your desires?

Mr. Pearson: Mr. Chairman, it may well be perceived as being a drawback, but I think if we look at Canadian history, Mr. Chairman, Manitoba became a province with something around 1,000 eligible voters. The western provinces, Saskatchewan, Alberta and British Columbia all became provinces with something in the neighbourhood of 2500 voters each, federal voters. We in the Yukon have 15,000 people registered as federal voters, so I do not know really how much credibility can be put on the numbers game.

Mr. Henderson: I have one other question and it is for clarification, really. You mentioned, and it is in line with your statement on mobility rights and the right to preferential hiring practices, and of course preferential training practices, because I think the two go basically hand in hand, but you stated that most of the hiring is done in the hiring halls in the south and I would like to know if those are unionized hiring halls? 1 mean, large contractors who would be going up there, are they compelled to hire union representatives rather than, we will say, go to the territories or the Yukon and get people from that area who may not belong to a union? Is that an obstacle?

Mr. Pearson: Mr. Chairman, it is a real obstacle and most workers in the Yukon hired for large projects are in fact unionized, are hired through union hiring halls in southern Canada, the majority in either Vancouver or Edmonton. Most of the larger unions in the Yukon are members of the BC-

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Yukon Federation of Labour. That is a joint federation, we do not have a Yukon Federation of Labour per se in respect to the larger national and international unions.

So that is a problem that eventually we think we will be able to overcome.

Mr. Henderson: Well, have you had any discussions with the unions involved regarding this and how have they reacted to your discussions?

Mr. Pearson: Mr. Chairman, we have not had discussions with the unions with respect to the pipeline, but the proponent has, and in order to meet the proposed terms and conditions of the Northern Pipeline Agency it would be necessary for the proponent and the unions they will be dealing with to come to some agreement in respect to hiring halls in the south.

Mr. Henderson: Those are all the questions 1 have.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Henderson. I would like now to call on Mr. Nickerson to join us in the debate.

Mr. Nickerson: Thank you very much, Mr. Chairman. I do not really want to join the debate, I am quite happy with the study session that is going on.

The Joint Chairman (Mr. Joyal): You will easily understand that I use the word “debate” in the context of the discussion that has been going on around the table.

Mr. Epp: I understood you that way, monsieur le président. [both sides french last 3 words]

Mr. Nickerson: I would refer you, Mr. Chairman, and also the witness to Section 29(1 )(a) of the proposals we have before us, and if I might be permitted to read it out, this is what it states:

29.(1) This charter applies to

the Parliament and government of Canada and to all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories;

Now, the way I read that, that would entrench within the constitution, because Section 29 is a part of the constitution, would entrench the subservient position of the territories of Canada. I wonder if the witness reads into that particular subsection the same meaning as I would?

Mr. Pearson: I believe we do, Mr. Chairman. It is one of our concerns, as was mentioned earlier. We just do not know yet how this proposed constitution is going to affect us directly. We are not absolutely sure or certain in our own minds of what applies to us in this proposed constitution and what does not apply to us.

Mr. Nickerson: Thank you, Mr. Chairman. I know that there are differences of opinion as to the way in which that particular paragraph might be interpreted, and I think it would be to the advantage of this committee were you to receive views as to the various interpretations from people who are more expert in that matter than myself. That is the one specific provision I wanted to take a look at.

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Now, I have a question for the honourable Chris Pearson. You have said, and I think everybody in Canada’s northern territories would like very much the same thing, to eventually become a province, to join the Canadian Confederation.

1 wonder if you have, in your own mind, some kind of tentative timetable laid out whereby that could be achieved.

A couple of days ago, when representatives of the Government of the Northwest Territories were here, they were saying that in their mind, they thought ten years was probably a reasonable period of time in which to achieve this goal.

Mr. Pearson: Mr. Chairman, it is very difficult for us even to consider timetables; because once we do, then we are talking formulas.

1 would respectfully suggest that a formula is not the way to go. I think probably provincial status in Yukon will be determined, to a large degree, by when we may be able to convince the government of Canada that, in fact, the resources that are in that territory belong to the people of the Yukon Territory, and that the rest of Canada will benefit from those resources belonging to the Yukon Territory as a province under the same terms and conditions as they benefit by the ownership of resources in the other provinces

Mr. Nickerson: Thank you.

The witnesses we had from the Government of the Northwest Territories, while they shared you view that eventually resources will have to come under provincial ownership, if you were to have a viable province, nevertheless they suggested that, as an interim measure, some form of revenue sharing agreement between the territorial and federal governments should be worked out in order to give them, during the period of time in which they are still working towards provincial statuts, some form of discretionary income.

Do you share that view?

Mr. Pearson: Certainly, Mr. Chairman, it is a way. We have been, as a government, assuming more and more of the provincial type responsibilities from the Government of Canada.

To get back to what Mr. Epp said earlier, one of the steps in this evolution of responsible government may well be the control of resources in the territory under a revenue sharing agreement, prior to the actual ownership of those resources.

Mr. Nickerson: In the brief that we have before us, there was a reference to language rights and specifically to the rights which should be enjoyed by speakers of, primarily, I suppose, the native languages in the Yukon.

In the opinion of the witnesses, Mr. Chairman, how would that matter preferably be dealt with should those language rights, which should be enjoyed by the people of the Yukon, be in the Canadian constitution or acts of the Parliament of Canada? Or, are you of the opinion that they should be best dealt with by legislation of the Yukon legislature?

Mr. Pearson: Mr. Chairman, I believe that probably the provision of language rights in respect to the native people in

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the Yukon can in fact be best dealt with by the territory or the province of the Yukon.

I say that advisedly, because we are in fact dealing with it now. We do have a program in place in respect of native language education programs in the Yukon.

Mr. Nickerson: One final question, Mr. Chairman. This pertains, again, to the mobility rights, and the difficulty which that might cause in the Yukon.

The evidence presented before us by representatives of the Government of the Northwest Territories, where they brought up the same issue, they suggested that maybe this was something which, although of some importance, nevertheless, because of the fact that there were not many people in the territories, and that for a major project it would be absolutely necessary to bring in people from outside the territory, it was not a matter of extreme importance to them in relation to some of the things which they refer to such as the attainment of provincial status which was much more important in their presentation.

1 wonder whether you are of the same view.

Mr. Pearson: Mr. Chairman, the immediate concern of the Yukon happens to be with the mobility clause.

I can well understand and sympathize with the view of the Northwest Territories that it is not a major concern; but it is a major concern to Yukon, and an immediate concern primarily because what is happening is the Yukon territory, with 25,000 people in it, is being asked to suffer or to absorb the impact of the largest known construction project in the world. Mr. Chairman, there was a fairly large one in Alaska in respect to the Alaska line when it was built, and the impacts on Fairbanks in particular, because there was no in-migration control at all, were devastating.

We look to the terms and conditions of the Northern Pipeline Act to mitigate those impacts to as a great an extent as possible.

I agree 100 per cent with what Mr. Nickerson has said, that there will be an awful lot of in-migration; but we are hopeful, Mr. Chairman, that it can be controlled to some degree.

We are also of the opinion now that, with the proposed amendments to the Canadian constitution, there could be no control. It would be unconstitutional to control that in-migratiom.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Nickerson. 1 would like to call now Mr. Ittinuar.

Mr. Ittinuar: Thank you, Mr. Chairman.

Mr. Pearson, and representatives of the Yukon territory, I would like to speak to you as a neighbour of the Northwest Territories. I do not believe that there is anyone else around this table, except for Mr. Nielsen, who can make that claim, that we are both Northerners.

We also know that we have not been invited to the constitutional conferences on an equitable basis with the provinces,

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because of the greed of 11 grown men who could not in fact come to terms with their greed. That is also the reason why we are here.

But I would like to ask you a couple of questions. I have an interesting fact here. One third of the population of the Yukon is Indian, and I believe one half of the stable population is Indian.

What kind or relationship exists between the Council of the Yukon Indians and the Government of the Yukon Territories?

Mr. Pearson: Mr. Chairman, I would question Mr. Ittinuar’s assumption that one half of the population of the Yukon, the stable population of the Yukon, is in fact Indian or of Indian extraction. I do not believe that to be true.

But is is extremely difficult to substantiate the figure one way or the other, because in our educational system, in everything we do we do not make any distinction. So we do not have statistics to substantiate my claim as opposed to his. But I really do question that statistic.

Mr. Ittinuar: Thank you.

Mr. Pearson, given those statistics, there is a sizeable number of Indians in the Yukon territory; that is why they have the land claims. You have implied in previous statements to the Committee that the push for a settlement of land claims comes from the Indians, but that the push for provincehood comes from the white people. I think you implied that earlier. Is that correct?

Mr. Pearson: Mr. Chairman, I would say basically that is correct

But I did not answer the other half of Mr. Ittinuar’s question in respect to our relationship with the Council for Yukon Indians. I would respectfully suggest that the letter, which has been distributed, indicates to some degree our relationship with the Council. It is one that began very, very tenuously, but has progressed to a working relationship, which, I think, is a good, solid one, as well as one which we hope will continue to progress.

I do not know what else I could say about that subject at this time.

Mr. Ittinuar: Does the Yukon government support the CYI position on the segment of land claims—any settlement, or the CYI’s position? I think there is a difference there.

Mr. Pearson: I do not know what the difference could be. Mr. Chairman, I am confident that both the Government of the Yukon and the Council for Yukon Indians are at the negotiating level with the Government of Canada with one objective in mind, namely, to get a land claim settlement that is fair and equitable to all the people in the territory.

Mr. Chairman, the members of the Council for Yukon Indians recognize, as well as we do, that any settlement must be one that is perceived to be fair for all of the people in the territory.

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Mr. Ittinuar: Mr. Pearson, you also said that the CYI does not want development before land claims.

I would like to ask you whether this is exactly the case or not, because, 1 think their notion is that they would not want development unless they have control or partial ownership in that development. Is that correct?

Mr. Pearson: I do not know, Mr. Chairman. I suggest, possibly that might be an issue which is part of the negotiations, and it is one I could not comment on at this stage.

But, no, Mr. Chairman, the Council for Yukon Indians has in fact indicated support for development in the territory in that they have participated in development in the territory. We are hopeful that they will continue that participation.

Mr. Ittinuar: One more question, Mr. Chairman.

I am not familiar with the Yukon. However, if a referendum is to be held in the Yukon on the desirability of attaining provincehood, would there be a residency requirement for voters?

Mr. Pearson: I would expect, Mr. Chairman, that the same requirements as are in place now for any general election in the Yukon territories would be in place at that point.

Mr. Ittinuar: Thank you.

Senator Connolly: On a point of order, Mr. Chairman.

The Joint Chairman (Senator Hays): Senator Connolly.

Senator Connolly: Mr. Chairman, it is a matter for my own information and arises out of Mr. Epp’s intervention and a statement which was made by Mr. Pearson who, by the way, I would like to congratulate for his handling of this presentation today; he handled it very beautifully and it has helped us a great deal.

The point which concerns me was his statement, as I understood it, that the enactment of the proposed material in this resolution would wipe out any arrangement existing now for the addition of new provinces in Canada.

My understanding is that the 1871 amendments do provide a formula—whether good or bad is another question—and that formula is not done away with by the proposed legislation.

Now, am I right or wrong about that?

Mr. Epp: Mr. Chairman, with your permission I would like to point out that it was not in my questioning that the proposed resolution now before us, should it be enacted, would in any way change the 1871 amendment.

Senator Connolly: That is my understanding, yes; but I thought Mr. Pearson had indicated it might not be—perhaps Mr. Neilsen could help me.

Mr. Nielsen: On that point of order, there is a gray area that when you combine the retention of the 1871 formula with the remainder of the constitutional proposals, you are left in some doubt as to whether the formula that was espoused by Senator Lucier would apply, which does not require the consent of all provinces, or the 1871 formula. Because I would remind honourable members of this Committee that 1871 British Columbia came in under that formula without any

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As 1 understand the presentation of Mr. Pearson, he wishes that gray area to be cleared up so that we have remaining, regardless of these proposals if they are enacted, with the same position as was accorded these other entrants into Canadian federation, on entry of the Yukon and any other future provinces.

The Joint Chairman (Mr. Joyal): Senator Lucier, do you want to reply to that?

Senator Lucier: Just to clarify a point just very briefly I did not espouse any formula, I merely read the position of the Prime Minister of the day, Mr. Clark. I read his position to a question that was answered, and it was replied to by the Justice Minister of the day and that is all I did. 1 did not suggest any formula and I have never suggested that provincial agreement was required. They have only said they would ask for it, it was never suggested it was required.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Lucier

Mr. Nielsen, I appreciate that paragraph.

Being a lawyer myself 1 wish to propose to the honourable members of this Committee the same interpretation of the statute as was referred to by the honourable Senator Connolly that was stressed on by the honourable Erik Nielsen. It was stated in practice that that statute most of the time has never been applied.

Mr. Nielsen: Mr. Chairman, may I just for one second, before you extend your thanks on behalf of the Committee, thank Mr. Pearson particularly in his offer to table the position of the Council of Yukon Indians, for it is my information that is the only probable hearing they will get before this Committee. So it is a very important gesture on his part, to offer that correspondence.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nielsen. It is my privilege, honourable Mr. Pearson and honourable Mr. Lang to thank you on behalf of all the honourable members of this Committee. Mr. Hawkes, on a point of order.

Mr. Hawkes: Was I not on the list for a short question?

The Joint Chairman (Mr. Joyal): I am sorry, I must tell you that I did not have your name on the list as of now. I mentioned earlier that 1 got the agreement of all the honourable members around this table that we should adjourn at 12:15 p.m. to allow the honourable members to prepare themselves for the funeral of the late Governor General Jules Léger and if you have a very brief question.

Mr. Hawkes: If I could, Mr. Chairman, and 1 thought I was on the list. I would like to thank the witnesses for bringing so strongly to our attention the mobility rights provision.

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I am a member of the Task Force on Employment in the Eighties and as we travel to places like Prince Albert, Thompson, Bathurst, Moncton, there are many areas of Canada represented by minorities who are bothered by the minority rights provision, because their concerns are similar to yours.

If I could just get confirmation of one fact. As I read your entire brief and attempted to summarize it, you are representing a geographic and population minority that feels that in some parts of this you are being subjected to the tyranny of the majority, and that would run counter to a philosophical persuasion around constitutions. What you are really saying to us is, we question witnesses and perhaps change the resolution, that you want us to carry with us the sense that there are minorities out there that are not being adequately protected and that constitutions written by Gallup polls may in fact not work well for all parts of this country. Is that a fair summary?

Mr. Pearson: I believe, Mr. Chairman, that is a fair summary.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Hawkes.

I would want to thank you on behalf of all the members of this Committee and thank you especially for the answers that you have given us on the land claim settlement. It is a very basic issue for this part of Canada. The provincial status is another very important aspect and I think all the Canadians who are attending and following our discussions are very interested in knowing what will happen to the future of this country, taking into account that we have an idea of Canada which is usually restricted to the federal government, but we forget most of the time that there is a very important part north of our country that needs to be treated on an equal footing with the rest of the country.

I want to stress also the fact that you mentioned, when you referred to the pipeline project, which is one of the most important economy projects for the future of this country, and most honourable members around this table have to question themselves, with the project today but with its implications for the future of this country, and I think that you represented in a very eloquent manner the future of our country. Thank you very much.

The meeting is adjourned until 7 o’clock this evening. When we meet this evening we will hear the representations of the Canadian Ukrainian Association.

EVENING SESSION

-1907

The Joint Chairman (Senator Hays): Honourable members of the Committee, this evening we have the Ukrainian Canadian Committee here and they are represented by Mr. John Nowosad, Mr. Lupul, Mr. Rudzik and Mr. Yaremovich. We are very pleased to have you here this evening and we look forward to your presentation.

I understand Mr. Nowosad is going to introduce his people and Mr. Lupul will be presenting the brief.

Mr. Nowosad.

Mr. John Nowosad (President, The Ukrainian Canadian Committee): Mr. Chairman, honourable members of the Com-

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mittee, in introducing the presentation from the Ukrainian Canadian Committee, I must state that the Committee speaks on behalf of some 28 Ukrainian organizations in Canada operating on a national basis, whose activities this Committee co-ordinates. We have representatives here in this delegation from various parts of our country.

On my right we have Professor Manoly Lupul from Edmonton, Director of the Institute of Ukrainian Studies. Then we have Dr. Orest Rudzik, President of the Ukrainian Canadian Committee of Toronto and he is also a lecturer on Canadian Studies at the University of Toronto. Next is Anthony Yaremovich from Winnipeg, Vice-President of our Committee; and myself John Nowosad, the national President of The Ukrainian Canadian Committee.

Our Committee has branches in all major centres of Canada, including Ottawa, as well as member representatives in the small towns and communities. Our Committee has representatives from women’s groups as well as youth groups.

We greatly appreciate you giving us this opportunity to appear before this Committee to present our views on this very important topic, our Canadian constitution.

The new constitution must command the respect of all Canadians and provide them with an enlightened basis for patriotism.

The new constitution of Canada must be a modern document reflecting the views of today’s composition of our population. We must understand and respect each other’s ways, while sharing each other’s burdens, and to do this effectively we must find an ideal balance that will make it possible for all Canadians to enjoy a richer life. It is in this search for the ideal balance that we are engaged in now.

Now, I have the pleasure of calling upon Professor Manoly Lupul of Edmonton to present our brief.

Professor Manoly Lupul (Director, The Institute of Canadian Studies): Thank you, Mr. Chairman. Most Canadians of Ukrainian origin, undoubtedly endorse wholeheartedly the need for a new constitution, one which would more accurately reflect the cultural diversity of the Canadian people. The Ukrainian Canadian Committee supports the entrenchment of fundamental human rights and freedoms in our constitution in order to ensure fair treatment for all peoples and individuals in Canada.

We do not believe, however, that the proposed constitution adequately addresses itself either to the reality of Canada’s cultural diversity or to the protection of our rights and freedoms. The proposed act was formulated without consultation with the Canadian people. It completely ignores the recommendations put forth to the federal government by representatives of the Ukrainian Canadian community and other ethnocultural communities during the past decade.

As Canadians of Ukrainian origin, we have played a fundamental role in the building of the Canadian nation. In the opening up of acres of land to cultivation in the Canadian west and in the building of railroads and factories of our country,

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Ukrainian Canadians have shown that they are one of the many people who have contributed to the founding of the Canadian nation as we know it today.

Ukrainian Canadians strongly believe that they are entitled to the same rights as any other group in Canada. We do not wish ever to see the experience of World War I repeated, when over 8,000 Ukrainian Canadians were interned by the Canadian government as enemy aliens under the arbitrary authority of the War Measures Act.

We do not wish to see our language rights trampled upon again as they were during World War I, when legislation was passed by provincial legislatures in the western provinces which prescribed the teaching of the Ukrainian language— together with all other languages other than English—in the schools of the prairie provinces. We do not wish to see the constinuation of discriminatory clauses in our constitution, clauses which have relegated Canadians of origins other than Anglo-Celtic or French to a lesser status in a country in which they are allegedly to be “equal” citizens, too.

We are opposed to the present wording of Section 1 of the Canadian Charter of Rights and Freedoms, which:

guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

In our view, this clause allows too much leeway in allowing the suspension of the charter:

subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

The internment of Ukrainian Canadians during World War I was carried out by a government which apparently felt that it was acting in a manner consistent with the principles generally accepted by Canadian society at that time. This unjust and arbitrary treatment of Canadian citizens was repeated again during World War II in the case of the Japanese Canadians. Even the most fundamental principles of our justice system— the right of habeas corpus and the right to be presumed innocent until proven guilty—were arbitrarily suspended in the internment of Canadians who were allegedly dangerous enemy aliens. It is our view that the limitations clause in Section 1 of the Charter is so broad in its application that it would do nothing to prevent a repetition of this kind of systematic abuse of those fundamental rights which the proposed Constitution is supposed to protect, and we would therefore recommend that Section 1 of the Canadian Charter of Rights and Freedoms be deleted.

We are also most concerned that the proposed constitution does not explicitly recognize that Canada is a country which is diverse culturally and linguistically. Since October 1971, a policy supported by all parties in Parliament has defined Canada’s identity as multiculturalism within a bilingual framework. In the proposed constitution there is much atten-

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tion, as there should be, to English-French bilingualism. It is, however, one part of a policy with two dimensions, the other being multiculturalism. To us, this slighting of one part of a single policy is a serious deficiency in the proposed Constitution.

As early as 1972 the Special Joint Committee of the Senate and the House of Commons, Chaired by Senator Gildas L. Molgat and the honourable Mark MacGuigan, recommended as follows:

The preamble to the constitution should formally recognize that Canada is a multicultural country (Recommendation 27).

In 1977, in the debate on the immigration bill, an amendment which added “the multicultural nature of Canada” to its “federal and bilingual character” was defeated in the House of Commons, even though the Canadian Consultative Council on Multiculturalism, a body advisory to the Minister of State on Multiculturalism, had specifically recommended a similar amendment—the recognition in the bill of federal bilingual multicultural character of Canada.

In A Time for Action: Toward the Renewal of the Canadian Federation, a document released by the Government of Canada prior to the publication of its constitutional amendment bill in June 1978, we find the following clear statement of the government’s commitment to the enhancement of Canada’s mosaic of cultures in any renewal of the Canadian federation:

For more than a century, people of other ethnic origins have come to Canada and settled beside those of British and French ancestry. A large number of them have joined the English-speaking majority and others the French speaking majority, without in the process losing their individuality.

With the sheer weight of their numbers, it is natural that the French and British cultures occupy a major place in Canada. But there is no question of having only one or two official cultures; Canadian society must promote cultural diversity, clearly and explicitly.

This diversity will only be protected if we ensure that Canadians of all ethnic origins have equal opportunities and full protection against discrimination.

Our French and British traditions have not been weakened by the multicultural character of our society. On the contrary, by good fortune this increasing diversity has helped to reduce the old rivalry between them. They have also been invaluably enriched and revitalized in all fields—from the arts and sciences to economics and politics. Our two principal cultures will in no way be diminished by the determination of new communities to preserve their own cultural heritage.

We must therefore do more to develop and enhance all the elements of the Canadian mosaic. We must also significantly increase exchanges between our cultures, so

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that every Canadian has the chance to discover, appreciate and respect the heritage of his fellow citizens.

While the term multiculturalism was not explicitly mentioned in the constitutional amendment bill which followed, the honourable Marc Lalonde, in an address to the Canadian Consultative Council on Multiculturalism on October 27, 1978 declared:

This new constitution will be written for Canadians and it must faithfully reflect the reality of Canada today. Since this country is bilingual and multicultural, the constitution will recognize the fact without ambiguity. I can tell you without hesitation that the government itself has absolutely no objection to inserting the word «multiculturalism» in the text of the constitution.

It is therefore truly disheartening that in the proposed constitution the term multiculturalism is again nowhere to be found.

There are those who would argue that multiculturalism will be placed into the preamble after the constitution is patriated. The provinces, they say, could not agree upon a preamble and so it was because of the provinces and not the federal government that the constitution did not recognize Canada’s cultural diversity. The strength of this argument may be gauged from the fact that the same federal government did not hesitate to ignore the equally divided wishes of the same provinces and unilaterally invaded the well known area of provincial jurisdiction, namely, education, in the matter of English-French minority language education rights. With a preamble now apparently out of reach, I am sorry to say, partial restitution for slighting multiculturalism as the second co-ordinate of a single government policy can be made by adding the following under nondiscrimination rights as Section 15(3): everyone has the right to preserve and develop their cultural and linguistic heritage

The Ukrainian Canadian Committee is truly pleased with Section 16 to Section 22, which refer to English and French as the official languages of Canada with equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada. French Canadians in all parts of Canada must be able to speak to the Government of Canada in French if it is to be their government and national unity is to prevail. National unity, on the other hand, can only suffer from the unilateral invasion of the provincial sphere of educational jurisdiction by the federal government on behalf of a single minority in each Canadian province, to us, all cultural and linguistic minorities live or die together. To us, among cultural and linguistic minorities there can only be equals—at least in law.

Thus, if the Government of Canada can invade provincial rights in education on behalf of one minority in Quebec and another in the other provinces, we would submit that it can do the same for other ethnocultural minorities whose linguistic and cultural needs are equally pressing. In places like Edmon-

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ton, where I come from, there are classrooms in the public schools in which the languages of instruction, besides English, are Cree, French, German, Hebrew and Ukrainian—classes which are conducted on a bilingual basis. We would submit that if a Canadian constitution is to guarantee minority language rights in provincial educational systems, that guarantee should not be confined to one linguistic combination, but embrace all that are viable through the following modified provision of Section 23(1) of the proposed constitution:

Citizens of Canada shall have their children receive their primary and secondary school instruction in the language of the majority of the population of the province in which they reside and in any other language(s) in accordance with the expressed desire of parents in any area of the province in which the number of children of such citizens is sufficient to warrant the provision out of public funds of minority language educational facilities in that area

The above amendment renders Section 23(2) unnecessary and it should therefore be deleted.

The suggested changes would have three main advantages. In omitting references to first language learned and still understood in the present Section 23(1), all Canadian citizens outside Quebec who wish theii children to learn French would have that right without being members of the French linguistic minority population. Under the present clause, while a nonFrench Canadian in Western Canada, for example, could send his children to a French bilingual class, he would not have the right to do so.

In omitting references to the “English … linguistic minority population” in Quebec, the primacy of French in that province is secured, without denying anyone the right to acquire a second or third language of their choice. To us, this is very important, for if anything is clear after two decades of debate and discussion, it is that unilingual English-speaking residents in Quebec must become bilingual. Yet the proposed constitution actually guarantees them the right to remain unilingual English in a province where 80 per cent of the population is of French origin.

The original clause also carries the unfortunate implication that all other ethnocultural minorities are of little consequence in Quebec. While they must certainly learn French because of its primacy, and they should surely know English because they live on what is essentially an English speaking continent, they should also have the right to learn their ancestral language and become trilingual, because they live in a multicultural country which values its cultural and linguistic diversity.

In guaranteeing the possibility of numerous bilingual combinations without endangering English outside Quebec or French inside Quebec, a basic equality of linguistic status, thought not of course of linguistic usage, so essential in a viable, multicultural society, is ensured. Ensured also is a stronger place for the main bilingual combination—English-French—for we are utterly convinced that English-French bilingualism in most

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parts of Canada and, almost certainly, in all parts west of the Ottawa valley, can only benefit from the presence of other linguistic dualities which have a living demographic base. What is needed is an amended Section 23(1) which will ensure language rights in education to all groups who are prepared to take bilingual education seriously and who wish to press for opportunities which are all too often arbitrarily denied.

Canada is not, and must never become, what one historian once described it, the “Austro-Hungary of the new world, with its two official peoples and its multitude of permitted ones.” This is from William Kilbourn, “The Making of the Nation”, 1965.

We cannot find words to describe the tragedy of a society in which all individuals are equal but some are more equal than others, all cultures are important but some implicitly carry official status, all languages are valuable, but school instruction in only some is guaranteed, all peoples are permitted but some are more welcome than others.

French Canada, in its struggle for cultural survival and development, has relied heavily on the educational system. So must all other ethnocultural minorities who are seriously interested in their own survival.

The Ukrainian Canadian Committee feels that the school systems must begin to serve the needs of Canada’s Ukrainian community, not just in terms of culture but language as well, but only when the right to a bilingual education is broadly guaranteed will this begin to happen. And the place to begin is in the constitution act, our country’s proposed new constitution.

Finally, we would like to say something about the 1 million French Canadians outside the Province of Quebec who find themselves in our midst. While most are well disposed towards the proposed constitution, many are equally uncomfortable with the linguistic educational provision of Section 23(1). It is exclusive; outside Quebec, only the French are singled out for salvation, as if their survival as a group were alone, threatened.

In these circumstances, they are concerned, very reasonably, not to harvest the bitter and frequently ugly results of disaffection which usually accompany privileged minority status.

Section 23(1), if proceeded with, will not cool the hot coals of bigotry in Western Canada and elsewhere which, it appears to us, are just waiting to be fanned. Should that happen, everyone seriously interested in bilingual education would undoubtedly suffer and all bilingual classrooms will be the ultimate victims.

Mr. Chairman, if Canada is to have a new constitution, we want it to be one with which we, as Canadians of Ukrainian descent, can also identify proudly.

A new constitution, Mr. Chairman, is like a new house. In it there must be room for the whole family. We are part of the Canadian family and have been so for almost a century. In our new constitutional house there must not only be room for all of us, but we must enter it through the front door together,

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culturally equal, and, at least in the provincial classrooms of the nation, linguistically equal.

Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Lupul.

We have Mr. Hnatyshyn, followed by Mr. Lewycky.

Go ahead, Mr. Hnatyshyn.

Mr. Hnatyshyn: Thank you very much Mr. Chairman. 1 would like to take this opportunity of congratulating the Canadian Ukrainian Committee on its presentation. Doozje dobre, as they say in a certain language. From a Scandinavian member of the NDP, I am very interested in what I take to be two main concerns expressed in your brief.

The first deals with the whole question of the protection of individual rights and the role this constitution is going to play in terms of that very important function that it should play. I know that you have some serious objections, as expressed in the course of your brief and presentation, with respect to the operation of the constitution as a whole, having regard to Section 1.

I must tell you that I share your concern about the wording of that particular clause. It seems to me to open up the prospect and possibility of some substantial exemptions and exceptions from the rights that are apparently contained in the total package on the charter of rights.

You have indicated, in the course of your presentation, that you thought that that clause should be deleted from the provisions.

So, 1 would like to ask you whether you have given any consideration as to what you would have in place of that clause, if anything, or whether you think a simple deletion would be satisfactory? In other words, what do you see in place of that, if anything?

Mr. Orest Rudzik (President, Ukrainian Canadian Committee, Toronto Branch): If I may respond to that, Mr. Hnatyshyn, I think our position would correspond pretty closely to the position outlined the other night by in effect, another Canadian of Ukrainian descent, Professor Walter Tarnopolsky, speaking on behalf of the Canadian Civil Liberties Union, I believe.

As a practicing lawyer, what concerns me is, first of all, as the provision stands now it comes pretty close to being a tautology. Obviously, in any parliamentary system Parliament is sovereign and fully capable at any one moment of over-riding any other previous enactments. We are not like the Americans who can enshrine a bill of rights and move it up into a kind of platonic heaven and then refer to it for refuge and security. We have to live with the institutions that we are very happy to live with.

So it strikes me that if we do not accept it as a tautology, then we are in fact enshrining a rather dangerous precedent that we, as an immigrant group, has experienced in World War I; that the Japanese have experienced in World War II; and as our French Canadian kin have experienced as recently as October 1970; the ease with which a government can, if it

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feels that an emergency is upon them, exercise their parliamentary society.

Our preference would be to see these rights enshrined absolutely; and then there would be, at least, an onus on the part of the government of the day to explain to its electorate why it feels the emergency is present.

In other words, this seems to be legitimizing a kind of understood, common usage which, I think, has no place when one is speaking of very fundamental liberties. We are speaking about liberties which are, in a sense, prior to later cultural development.

I think Professor Tarnopolsky and some of the other spokesmen expressed their anxiety that this be tacitly accepted as a kind of legitimization of the government, perhaps, being too willing to lean to the opinion of its own day at the time when an apprehended emergency occurs. As I say, we have a bit of historical experience to bear this out.

Mr. Hnatyshyn: I take it, from your answer, that you would prefer to see Section 1 deleted altogether, and having no reference whatever to any normally acceptable legislative jurisdiction contained in any part of the Charter?

Mr. Rudzik; Quite so.

Mr. Hnatyshyn: I would like to move on, then, on the same theme with respect to your attitude, whether you have given consideration to the amending provision, namely, the one part of that which involves a referendum. 1 want to know whether you have considered the aspect of a referendum in the same light, in other words the interest of minority groups in our country when changes might be forthcoming and presented in the Charter of Rights. Do you have any apprehension about the provision with respect to a referendum or the consequences of that kind of amending procedure?

Professor Lupul: Well, you can tell from our brief that this is not something which we have considered; not for any good reason.

As you know, we are one of those very funny groups which have always had lots to say about the relationship between language and culture—for very specific reasons, our predicament in this society, with the Ukraine itself being in the empire of the Soviet Union

I personally cannot speak for the Ukrainian Canadian Committee as an individual outlining opposition on the referendum.

Mr. Hnatyshyn: I take it, it might be a fair assessment of the position on the basis of what you have already said, that any system of amendment which might in fact prejudice minority rights or rights which are contained in the Charter of Rights would be regarded with some skepticism by your Committee?

Professor Lupul: I can speak personally, you know. A referenda or something of the same kind of thing we were talking about earlier, they are a form of political pragmatism which renders bills of rights redundant.

Mr. Hnatyshyn: That is a pretty damning statement I would say, with respect to the referendum. I share that point of view

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that there are some very serious questions with respect to the use of the referenda in a parliamentary democracy, inasmuch as minority rights are sometimes in jeopardy under those circumstances and especially in times such as you have indicated in your brief, where the majority of public opinion on a particular point of view is quite popular at the time.

Well, I wanted to get into this reference in your brief to educational rights. You seem to indicate here that you are concerned about the invasion under this particular Charter of the rights that now exist within the provinces to control education within the boundaries of the province. Yet, you seem to indicate a sort of acceptance of that proposition in suggesting amendments which will in effect meet some of your hopes and aspirations for minority educational rights, particularly the rights to Canadians of Ukrainian descent.

Which do you feel more strongly about, the invasion or the necessity of having something in the Charter?

Professor Lupul: There is no question about that, we want the present Liberal government to liberalize the provision in Section 23(1) and I think that should not be too hard.

There is no question, we have no problem with the invasion. It would be beautiful, we need it very badly where I live.

Mr. Hnatyshyn: Yes.

Professor Lupul: In Manitoba and Saskatchewan, where we have the same kind of legislation that permits now, on a discretionary basis, genuine bilingual immersion programs in any language other than English. However, these are very often arbitrarily tampered with by school boards denied, reluctantly granted, and we would love to have this, there is no question of that. But not for only one group, it is exclusive and that is not going to do the group any good. I can assure you of that.

The kind of, not bitterness perhaps, but it is a feeling of being left out, of being somehow less than someone else who is also minority, and in many cases even smaller if you like in terms of demographic figures. It is not a pleasant feeling for someone like myself whose family has been here now into the fourth generation. I do not like being given to understand that somehow the kind of thing that is important to the group I come from is not of equal value to Canada and who feel at home in a country like that. The law that actually does that from the top, arbitrarily, is something which I do not know how anybody could support. It is not at all the invasion; it is the invasion on behalf of a singular group outside the province of Quebec and I might add, a singular group within the province of Quebec. If you think what that means to the province of Quebec, I find it shocking in terms of what we have heard for the last, at least the last five or six years. Bill 101 must mean something, I know we do not like it, but it must say something about that society that is important to it.

Do you just simply say, “It is all nuts. It is no good. It is all wrong, all wrong.’’? The primacy of French must exist, yet you

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are telling the unilingual anglophones who are two thirds of the 1 million there of an angloculture background are unilingual English and you are telling them, “It is quite all right, Jack, to remain so, we guarantee it.” Heavens, you want peace in this land, you want unity on those terms? That is shocking.

Mr. Hnatyshyn: Mr. Chairman, 1 wonder if I could ask Mr. Lupul in the course of his brief and the presentation he made, he was critical of the fact that there has not been what he considered to be sufficient consultation with the minority ethnic groups in this country before the constitutional provisions have been brought forward.

sions have been brought forward. I take it that he feels that possibly more time should be spent in a truly consultive fashion by this parliamentary Committee, and he would be in support of not having any deadline such as December 9 to get all this wrapped up, and packaged up, he would prefer to have a little longer time.

Professor Lupul: If my son were here, he would tell you that he believes in constituent assemblies. If there could be a change which would liberalize Section 23(1), and if you could get the change that would give us Section 15(3), I would not care if it happened tomorrow.

Mr. Hnatyshyn: I wonder …

The Joint Chairman (Mr. Joyal): Two minutes.

Mr. Hnatyshyn: Two minutes, well, just one final question then. I am very interested in Mr. Lupul’s delegation’s sort of over-all view of the multicultural society in Canada. You mentioned specifically some of your concerns about the way in which the multicultural fact in this country has been denied, or downplayed in terms of legislation, opportunities for the government to demonstrate its real commitment to multiculturalism.

I wonder if you could in conclusion to my questioning, at least Mr. Lupul give some idea of how you see Canada, what do you see the role of multiculturalism is in Canada, what is necessary to achieve that?

Professor Lupul: Well, as far as I am concerned multiculturalism is the very base of the root for national unity. It is this very diversity, we speak of it as cultural diversity, multiculturalism, pluralism, I do not care how you speak of it. It is just this very variety, properly accepted and respected, or fully accepted and respected is what will hold us together. It is what will divide us, what will destroy us if we attempt to set up one pedestal for John Bull; one for Jean Baptiste, and another for Yvon Banyak. It will never work, we are not that kind of society and you know that. We are one country with many regions and a very, very demographic base. We have many generations and various integrations. We know that, that is what makes us different, wonderfully different.

I am absolutely convinced that within that kind of a framework there is no danger whatsoever to the official languages, to the French language, to the English language in the province of Quebec, because it will live within this cultural diversity, the linguistic diversity. Yet how can it die under those

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conditions, but we will kill it if we do something in law and this is the highest form of law, the constitution, that will snuff certain things out.

I ask you gentlemen, and ladies, what will we gain; how much better off will we be when there is no longer the chance for a Hebrew-English bilingual combination; or a HebrewFrench-English trilingual combination in Quebec; or Ukrainian-English out west; or German-English or Cree-English, how much richer can we be? How will it pay off, if yocan tell me that I will stop speaking.

Mr. Hnatyshyn: Thank you very much.

The Joint Chairman (Senator Hays): Thank you very much Mr. Hnatyshyn.

Mr. Lewycky, and after that Mr. Mackasey.

Mr. Lewycky: Thank you very much Mr. Chairman.

It is delightful to have a fine group such as you. Mr. Lupul had mentioned at the beginning Mr. Chairman, that they had the desire to search for balance and I have been most delighted with this particular brief presentation, because it has indicated a balance, it has indicated a depth of thought and I am very pleased also, Professor Lupul with your historical sketch, your outlining some of the historical milestones in what we might consider the multicultural history, at least from the Ukrainian perspective in Canada.

I also enjoyed your analogy about equating the constitution to a house. It would seem that you are indicating that at this time this House is due for a renovation and I think you made several different suggestions here.

1 was pleased to see a reference to the Prime Minister’s statement in 1971, when he stated in Parliament in October that he defined Canada’s identity as multiculturalism within a bilingual framework.

At the same time, he also said that he felt that Canada should be pursuing a vigorous policy of multiculturalism and next year represents the 10th anniversary of this particular statement and it had the concurrence of the House.

I was just wondering if you could just paint for us a little bit further some of the things that you see as being essential to pursue such a vigorous policy in terms of the outline that you have indicated here.

For example, the one question I have is that there has been mention here about a preamble that had been suggested earlier, we have no preamble to this resolution. Would you feel that the recognition of Canada’s multicultural or multiethnic makeup would be better made in the context of the Charter as we have it now, or in a préambule, what thoughts do you have on that?

Professor Lupul: Well, obviously if there would be a preamble, if you are going to include things like federal, bilingual, which tend to define the nature or entity of the country, you should also include multicultural.

To us, quite frankly, and more importantly is the suggestion addition to Section 15, which would be (3):

Everyone has the right to preserve and develop their cultural and linguistic heritage.

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A preamble, as you know, is sort of a symbolic thing, it is nice to have it there, it is nice to see yourself reflected if you like, in the constitution in that way, in that place. It really does not mean anything. It is those specific provisions. When you say there is a right, everyone has the right to develop their cultural and linguistic heritage, then if you have something in mind you can go after a legislature, you can go after it in a court, you can make your case. So that is regarding the preamble

Mr. Lewycky: 1 notice that you had to make reference to the area of language, and I believe that language does happen to be a key to culture, it is not just Ukrainian dances and Ukrainian food that make up culture. People have often stated that language is this particular key to culture

One of the things that impressed me is that you seemed in your brief to have a great degree of balance. You are not wanting to trample down on the French or any other linguistic group; you seem to indicate that you just wanted to have an equal partnership in this constitutional house. Considering that the multicultural element in our society represents about one third of the Canadians, I wonder if you could just tell me what your vision is and I am going to ask you to be very altruistic for the French, let us say, and I seem to feel that you do not want to trample on the French by making sure that the Ukrainian are brought up.

Professor Lupul: Well, first of all, sir, with all respect to you, one third of Canada, not only one third of Canada is multicultural. I mean, the whole country is made up of groups, cultural linguistic groups and some are large, and some are bigger. They are all part and parcel of our cultural make up, cultural variety. I am not very keen on having multiculturalism identified with something called the third group element, fourth, whatever it may be.

We all have ancestral backgrounds, every one of us. Some of us have been here less time, but we all come from somewhere in terms of homeland, background. Some of us are larger, some are smaller.

Now, as far as French is concerned, I do not know whether I have to testify on the Bible on that, but I assure you that from experience where I come from that it was on the coattails of the Ukrainian bilingual program in Edmonton that the French bilingual program in the public schools of Edmonton came in. After we got our kindergartens in January of 1974, and we got the first grade started in September of 1974, English-Ukrainian bilingual immersion. It was very easy for public school officials in the City of Edmonton to start advertising French kindergartens and they did. In the fall of 1974 when our kids were entering into the Ukrainian bilingual program the French kindergarten program was getting off the ground where it did not exist before. The next year when the bigots woke up to the fact that in fact the public school, I emphasize the public school system of Edmonton was actually cultivating French bilingualism, there were phone calls to officials in the same school system telling us you should not be doing that in this town, you should be encouraging Ukrainian bilingualism and that same official had no problem at all because he said we already have Ukrainian bilingualism. So French was all right.

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This is what I mean when I say that minorities live and die together. When you grandstand, that is when you catch the flack, that is when you get the backlash. When you want to go it alone, when you want to be exclusive, when you want special status, that is when people start disliking you, it is as simple as that.

I have been from coast to coast as a member of the CCCM, the Multicultural Council, I have been an Executive member for six years. Every time I argued the liberalized concept of linguistic duality I had no problems with anybody. Any time you took a narrow view of it you always ran into the same arguments of which I am sick to death. I do not care where it is. So that is the answer I will give you.

The Joint Chairman (Mr. Joyal): Thank you so very much, sir.

Mr. Lewycky: Just one final question and I really appreciate the assurance that you gave me and I am sure that many others that may have had any apprehension would be assured by the statements and also the historical example that you gave in Alberta.

My final question relates to just the whole vision of culture and multiculturalism. My own view is that culture is one of the renewable resources that we have in Canada. I know that I value the fact that I can speak a little bit of Ukrainian and I can read a little bit of Ukrainian. I noticed that when I had been overseas I can read the Greek alphabet and I can read the other languages where some of my unilingual friends were not able to do so. I think that probably if we were to enshrine in the constitution this multicultural fact we probably would have a greater impact as cultural ambassadors to other countries, because Canada is so unique in this regard.

1 was just wondering what you think the benefit to Canada and the world would be if we did have these requests that you have made enshrined in our constitution.

Professor Lupul: Well, I went abroad in 1968 on a sabbatical. I studied Ukrainian fairly well, and I discovered the real difference suddenly when I moved out of Germany into Czechoslovakia. In Germany I understood next to nothing. “Links”, they told me, and I thought they were talking about rotary and they meant, left, and I did not know the difference.

Suddenly, in Czechoslovakia, which is a Slavic country, I suddenly could make my way around. The same in Bulgaria; the same in Poland; and the same in Yugoslavia; and of course in the Ukraine. I could see through all the nonsense; all the slogans could fool nobody, I could also read it.

Now, if you want to do business do not do what I found in Kiev, that is in the Ukraine, where the manufacturer of a cigarette machine, the Soviets wanted badly to have filter cigarettes finally, this is in 1968, April. So they got this expert from London, a representative of some firm and guess what he brought with him, a Yugoslav who could speak Russian and

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Ukrainian and perhaps some other language, the Slavic language. Why must we with our rich, rich linguistic resources, most of them nascent, why must we not tap them, take advantage of them? In Japanese trade, trade with Eastern Europe, the Arab world, there is no question about the importance of that in a trade dimension. I have lived through it, I have seen what it means.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Lewycky.

Mr. Mackasey, followed by Mr. Epp.

Mr. Mackasey: Thank you, Mr. Chairman.

I, too, first, speaking for the Liberal party, welcome your participation this evening and I have learned a lot from your rather forceful presentation. You have reminded me, sir, that all of us are members of a minority and I often say this in public, that all Canadians, regardless of their background are part of a minority, whether it is the French speaking Canadians of Manitoba, the Ukrainians in every province, or the Irish in Quebec, of which I am a very proud member. I have had a lot to do in public life with Canadians of Ukrainian origin, both in Montreal, the St. Charles’ area and in Lincoln which I now represent. So I want to say that I share your views about the need to amend, perhaps strike out, Section 1 of the Charter, the section which in effect negates all the fine words that come after it. So I think I could safely say that because of your representations and all the witnesses who have been here before you, and those who will probably be coming after you, that the general consensus of this Committee, certainly on the part of the Liberal party, is that that particular Section 1 be amended. I am not prepared to say for the government that it will be struck out entirely as Professor Tarnopolsky recommended, but perhaps along the lines, for instance, the spokesman for the New Brunswick Human Rights Commission suggested, not necessarily strike it out but certainly reword it so that there will be some meaning to the entrenchment.

I am pleased, too, that you stuck very strongly to your point that human rights should be entrenched in the constitution; am I right?

Professor Lupul: Yes.

Mr. Mackasey: And would you like to elaborate a little more because these things are going to be read by Cabinet, do you have any particular reason why, do you want to state it once more in brief form?

I will mention this while you are formulating your thoughts, that there is still a difference of opinion in this Committee, a fundamental one, a logical one and an acceptable one, that rights not be entrenched. I happen to have the view, particularly after listening to Canadians of Japanese origin the other day that they should be entrenched, but there are some members here who feel that it should not be entrenched.

Professor Lupul: Well, I think the only people that can live very comfortably in a society where you do not have an entrenched bill of rights are those who are in the majority. If

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you are a member of a minority and you read history, you see minority groups abused time and time again, arbitrarily, no defence, very often they have a difficult time expressing themselves and they cannot fight back legalisticly because they have not got the funds in many cases. There is just not the kind of security that you need, and then the worst part about it, the worst part, the politicians can be very, very difficult and sometimes very silly, but they can always be reached; it is the bureaucrats that frighten the hell out of me.

Mr. Mackasey: And of me.

Professor Lupul: Because you cannot reach them. And they give much advice, as you know, and they do all kinds of things. They frame regulations. It is those things that frighten me and you have to have a means to defend yourself against those things and that becomes very important to us

Mr. Rudzik: Mr. Mackasey, if I might just add to that, I think that we are so firm in the concept of entrenchment because of the past experience we have had, after all we do now have a bill of rights, the Diefenbaker Bill of Rights, but I think its career in the courts has shown how very, very easy it is to quite reasonably, to use the word “reasonable” out of the first section, to restrict the scope of that. I think Drybones was the first decision that came almost by way of a curve, it involved an Indian who could not purchase liquor at all in the Northwest Territories. That is hardly a case one wants to remember as demonstrating our concern for human rights.

We are talking here, I suppose, not even of minorities any more but of the individual who is the final, basic, irreducible unit in any society, and it is this individual who is threatened even more easily if he happens to be coloured by a minority that he participates in. So that if the Diefenbaker Bill of Rights was right in its time, I think it needs reiteration to make our judiciary, our bureaucrats and ourselves aware of how very, very much we subscribe to these principles.

Mr. Mackasey: Of course it goes without saying that what is to be entrenched should be as perfect as possible, which comes down to Section 23(1).

You mentioned quite eloquently the impact of Bill 101. I was in the Quebec Assembly when that bill was adopted. I do know it inside out, and my own point of view is that what discrimination it contains is not towards the English Quebecker, and I use the words “English Quebecker” as it is used genetically: anybody who is not a French speaking Canadian. The English speaking group of the Province of Quebec is surprisingly bilingual in numbers, statistically very high. I consider myself bilingual; my family is bilingual; my children are bilingual; we are bilingual because our school system stresses bilingualism and Bill 101 is discriminatory to the extent that it denies French speaking Canadians access to the English speaking schools. It removes from Canadians who are not Celtic in origin, who do not come from the British Isles, Canadians of Ukrainian background, the right to go to the

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school of their choice and this is based on a genuine fear that somehow Canadians other than those that originate in the British Isles were somehow being assimilated in the English community and it is hard for me to understand the fear of the huge majority numerically from assimilation from the present English speaking Quebeckers who number less than a million. The real threat to the purity, the strength, the vitality of the French speaking people in Quebec comes from the electronic media, television and radio, but that is a subject that you and I could discuss on another day

Professor Lupul: Mr. Mackasey, the amendment as proposed would take away from Bill 101 what I consider to be a very unfortunate thing, and that is the desperate need, such a desperate need to secure the French language in Quebec, that there is no attention paid to the importance of being bilingual in Quebec.

Mr. Mackasey: Well, 1 agree with you.

Professor Lupul: I understand that desperate need now, after all I would have to disagree with you a little bit, I think, in your statement that the anglophone minority of Quebec has been as bilingual as you say.

Mr. Mackasey: The English speaking minority.

Professor Lupul: That is the people of Anglo-Celtic, that is in the sense they are called British . . .

Mr. Mackasey: Statistically we are more bilingual than the French speaking Canadians of Quebec.

Professor Lupul: Well, that may very well be, after all that is kind of their province, they can be what they want to be.

Mr. Mackasey: It is also my province, I am sorry. I am talking minority now and I am surprised that you would suggest that I have no rights as a Quebecker to my province.

Professor Lupul: All I am saying is that anybody who is a minority should be able to speak to the majority in the minority’s language. Surely.

Mr. Mackasey: Flaving said this, let us switch to your problem, and I am concerned that since education has been very clearly and very jealously guarded by the Province of Quebec, quite logically, we all want the preservation of the French language and culture and joie de vivre, but to me it is one of the magnificent things about living in Quebec, I have no difficulty with it. Could you tell me why you have not been able to make more impact with the provincial governments of Alberta, Manitoba and Saskatchewan so far as having your language officially recognized in the field of education, it comes clearly under provincial rights. Now, I am not talking about the constitution but I am leading up to the constitution.

Professor Lupul: Well, I think one of the main reasons is precisely because they are afraid that the French will object, where I live. I think this is true for Saskatchewan, true for Manitoba. Somehow this is putting the French in our provinces on the same footing as all the others, so I guess that I would have to say that it is just too touchy an issue for provincial legislatures to do that. However, it may be that, who knows, maybe this constitution might make it easier

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Mr. Mackasey: Well, I think if men of good will such as yourself have a chance, this constitution at least can be the beginning. You see, what the government is trying to do, Professor, and I want your views on it because they are important to me, what the government is trying to do after perhaps half a century of bickering between the federal government and the provincial governments, is to bring back the constitution to Canada with, more importantly, a formula that will provide an opportunity for Canadians to amend that constitution. We are doing it in a very unorthodox way, not the preferred way. We would have preferred to see it come back after long discussions with the provincial premiers, where the provincial concern, because they are close to people, could be expressed at that table, concern for people, for preservation of a way of life which you and I agree is less than perfect. We have been unable to do that.

At the same time, because of that sensitivity which you talked about of the provinces and minorities within the provinces in the field of education, and the same sensitivity in a federal system between the federal government and the provinces, the provincial premiers, we will be hearing one in a few minutes and you might stay around and listen, you will see what I am talking about, you will find that what the government is trying to do here, and perhaps it is wrong, is to come in with the bare minimum, and I think you have recognized that, with the hope, maybe naive hope, that provided with a formula and provided with people like you to push us, that they may build on that minimum base, and I may be wrong but I leave my case with that.

Professor Lupul: Well, why not do it so that you do not have to defend endlessly what the vast majority of people in the provinces of Alberta, Saskatchewan, Manitoba, and British Columbia certainly, would regard as an arbitrary selection of one minority for salvation in this big vat called the AngloAmerican continent, which is doing its best to do us all in

Mr. Mackasey: I see my time is up and I just want to end on a note and say that I do sincerely hope as an individual that somehow in reviewing the proposed resolution we can find some ways and means of recognizing officially in that constitution that this is indeed a multicultural country.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey. Mr. Epp.

Mr. Epp: Thank you, Mr. Chairman.

I intend to be brief but 1 want to thank the Ukrainian Committee for being here and I have a number of questions for Mr. Lupul.

First of all, sir, I would like to get into the matter of second language education, that of course depends on the area where we live, or third language education, again depending on the area. I agree with you that many ethnic groups have, for long periods of time, made the valid point that the preservation of their language was the first responsibility of that community. But additionally they needed the endorsation of government that in schools that education of language could in fact continue.

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1 would like to ask you to what extent is the so-called Alberta formula, you mentioned earlier the difficulty about in fact moving in this area. What is your assessment of the so-called Alberta formula relative to third language education?

Professor Lupul: What do you mean by third language education?

Mr. Epp: Well, if you want a second language education, depending on the area, I thought I would put that caveat in, and you can use it that way.

Professor Lupul: Well, actually, it is working out fairly well to this point. We have had some difficulties, as have had the French, with some school boards

Mr. Epp: Do you feel it is more a local school board problem than a provincial government attitude?

Professor Lupul: Yes. The way it is now, school boards arbitrarily decide for various reasons not to move. The French, for example, in Red Deer could not crack the school board. We had problems in Lamonte. So it is working out not too badly here and there but we run into real problems and so do the French.

Mr. Epp: I know, from what I have seen of the Alberta experience, that while there are administrative problems that need to be ironed out, and you have obviously mentioned the most glaring one, that at least an attempt has been made, and I am not looking to Alberta as the example, but in the sense of how do we get around the problem, where are the solutions? There is a practical solution. While all of us, I think, recognize some of the shortcomings, we at least see it as an attempt to arrive at a solution and to devolve it further towards the point that you made earlier on behalf of your association.

I would also like to have an opinion from you, Professor Lupul. It is my view, and I believe that of my party as well, that the concept of multiculturalism must go beyond good intentions and high-sounding phraseology, that in fact it must become practical, and in order to do that it must receive the imprimatur of legality.

For example, I was disappointed that when we had the immigration bill before us, the so-called new Immigration Act, that an amendment including that not only should the country be bilingual, that is in the intent and purposes of immigration in Canada, but it should also be multicultural, I thought it would be the first time that the concept of multiculturalism would receive a legal definition, at least in the area of immigration. We were not able to convince the government of that date to include that term and so I would like to ask you what effect, should an amendment of that nature be included in the Charter, what effect would it have on multiculturalism and its development and promotion in Canada in your opinion?

Professor Lupul: Well, it would have a tremendous effect. Your constitution is something which colours an atmosphere or climate of a nation. It is like your mass media, it is like your politicians, like your educational system, they create a framework, the ideological framework within which you live. The

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constitution is a very important thing and there you see it, yes, it is bilingual, it is federal and it is multicultural. The symbolism of that, the value of it is inestimable. So, from that standpoint, the feeling of belonging, being recognized and therefore belonging in a country is great, it is large, you see.

However, I would have to simply repeat what I said earlier, this is why we have Section 15(3), I really do think that not to continue what has been the policy of both political parties vis-à-vis multiculturalism, both, which is largely tokenism; I have lived through it and 1 know; not to continue that, let us put in a right as is suggested. Listen, why not give it the equality of status with bilingualism which in fact the policy does give it? Why not give it the same status in the constitution? Why? Then, if you do that, you are likely to get funding which is somewhat equivalent. The multiculturalism policy, whether under the Conservatives or the Liberals—the funding for it has been pathetic when you compare it with the kind of funds that have been available for French/English bilingual education, which I do not object to; 1 only wish we were as lucky, that is all.

Mr. Epp: Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp.

I should like to thank you, Mr. Nowosad, Professor Lupul, Dr. Rudzik and Mr. Yaremovich for being here this evening; I can assure that the Committee will examine carefully and consider your suggested amendments and deletions and also your concerns with regard to the preamble in the constitution.

It was indeed a real pleasure to have you here. I am sure the Committee appreciates your being here. Thank you very much.

Mr. Nowosad: On behalf of the Committee, I would like to thank the Committee for listening to us and to the various topics that we brought up.

The Joint Chairman (Senator Hays): Thank you very much.

The Joint Chairman (Mr. Joyal): Order, please. We will next hear from the Government of Prince Edward Island. I would like now to invite to the witness table the honourable Angus MacLean, Premier; the honourable Fred Driscoll, and the Don MacCormac.

Hon. J. Angus MacLean (Premier, Government of Prince Edward Island): Mr. Chairman and members of the Committee, it is a very great pleasure for me to be here with you today. As 1 look around and see so many familiar faces, it reminds me of many similar hearings in the past when I had the privilege of sitting on your side of the table.

The fact that I am meeting with you as a representative of a provincial government is an indication that all of us as parliamentarians—someone has said that a parliamentarian is a politician away from home—are temporary players on the stage of history, and our particular role may and does vary rapidly.

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Perhaps it would be well for all of us to remember our transitory political status as we contemplate and debate something as permanent, and far reaching as the constitution of our country.

Let me say at the very outset that I consider it a privilege and an honour to appear before you on behalf of the people of the Province of Prince Edward Island. While we were not one of the original colonies who first joined the Confederation in 1867, Islanders are indeed proud that we hosted the first conference, and that our representatives raised some of the issues that are again being discussed, 113 years later.

I only hope that in considering these fundamental issues again, we can all be as wise, yet as circumspect, as were the Fathers of Confederation. For while they were wise men, learned in constitutional matters but wise in the art of politics, they also possessed the wisdom to know that they should not bind the freedom of future generations.

They were political men, who were content to solve the problems of their generation and of their age. Therefore, the constitution they wrote was practical and brief. They did not pretend to possess wisdom for all future generations.

So, while I am pleased to be here on behalf of the people of Prince Edward Island, I am also very conscious of the fact that I can speak only for the present, and while I may speculate on the future, I cannot legislate for it. We must leave room for future actors who play their parts, and we cannot write their scripts today.

Mr. Chairman, I am most pleased also to appear before this Committee because of its importance. Yours is not an ordinary parliamentary committee. You are not being asked now to deal with ordinary legislation; but you are asked to deal with our constitution.

Constitutions are a sacred trust, agreed to, not by governments, not by political parties and not by politicians. Rather, they embody the spirit of the people, and express how they wish to be governed. Constitutions are not ordinary pieces of legislation to be enacted, repealed, or indeed amended, like a highway act or a revenue act, or any other ordinary act. Rather constitutions provide the ground rules for governments. They tell governments what they can legitimately do and not do, and how they shall do it.

This is particularly true in a federal state where there is a shared jurisdiction. Federal constitutions assign responsibilities to each level of government, and in this way, seek to establish and to maintain a harmonious and effective relationship between the two levels of government. This relationship develops and grows over a period of time as a result of practice, precedent, sometimes even habit, and court decisions, all of which are grafted onto, and become part of, the constitution. In this way, constitutions—and particularly federal constitutions—protect people from the ill considered and intemperate actions of a passing political majority.

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Our presence here is indicative of our belief that you are conscious of this trust.

I should like, if 1 may, in passing—to ensure that there is no misunderstanding of our purpose—to say that our purpose in appearing here is not to bargain for some narrow, selfish benefit for Prince Edward Island. We are here to state what we believe to be in the interests of our country as a whole.

Constitutions should be written by the people through their elected representatives in all 11 legislatures; in other words, through the political process. Nevertheless, the Government of Prince Edward Island has been forced to the courts because, as the representative of our province, my government feels obligated to use every means at its disposal to preserve what it considers to be the very fibre of the nation. It is only because the political process is being thwarted by the federal government that we feel it necessary to protect, in whatever way we can, some semblance of constitutional order, as well as what we think are the basic principles of a federal state.

That is why, while we have joined others in asking the court for an interpretation of the legality of the federal action, we have, at the same time, deliberately chosen to speak to your committee, because we still seek to deal with our constitution in the only way constitutions should be dealt with: that is, through some form of the political process; and in a federal system, the political process must include a federal-provincial consensus.

Let us examine briefly some of the circumstances which led to our presence here today:

The federal government’s actions have reduced us once again, for the first time in 53 years, to the position of a colony. It has now become obvious that the federal proposals, because they are without precedent, have subjected our country and our people to public embarrassment by making our constitution the subject of controversy in the British press and the British Parliament—in another country. My belief is that it is, and should be, our affair.

We are incapable of understanding, Mr. Chairman, the logic of an argument that purports to remove the last vestiges of 53 years of colonialism by returning us to a status we have not known for 113 years.

We are not impressed by the logic of a federal government that purports to be terribly embarrassed about going to London for constitutional amendments, and yet deliberately seeks from London the most fundamental changes ever to be made to our constitution. Such a situation is, of course, the inevitable result of the action of a federal government determined to impose its view of federalsim on an unwilling, independent Canadian nation. We do not accept the principle of unilateral action. The federal government’s argument is, basically, that since we have tried for 53 years to patriate our constitution, without success, we should now abandon the effort, and let one level of government impose its view of the country on everybody else.

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A subsidiary to this argument is that the British Parliament has always complied with any request contained in a joint resolution of the House of Commons and Senate of Canada. Well, let us examine the substance of this argument.

First of all, anyone who argues that the Dominion of Canada has for 53 years felt a burning desire to patriate our constitution displays a wonderful ignorance of our history. The fact is that since 1931 Canadians have not been colonials, nor have they felt colonial. The fact is that the great urgency was created by the Government of Canada.

The subsidiary argument is just as fallacious. To argue that the British Parliament has never refused to act on a resolution of the Canadian Parliament is misleading. The truth is that never before was there concerted provincial opposition. The consent of the provinces was either explicit or implied, for any amendment which would alter the division of powers between the two levels of government. The present situation is, I believe, unique in our history.

But, by far the most serious result of unilateral action is the violence it does to our constitutional practice by establishing a precedent as dangerous as it is wrong.

Our federal system has had its difficulties, but all of us agree that it has served us reasonably well. All members have, at some time, accommodated themselves to the needs of others and to the needs of the nation as a whole. What becomes of that spirit of compromise and sacrifice if the provinces’ position in the federation can be fundamentally changed, against their will? For if it happens once, it can happen again. The precedent will be the accomplished fact.

Thus, we are here under regrettable circumstances. But the fact that we are here, will, we hope, impress upon you our steadfast faith in the political process, and our belief that we can still follow, in this country, our well established constitutional practices. We look to this Committee to renew our faith, by recommending that the resolution under consideration should request only patriation of the constitution.

With regard to discussions this summer, we believe such recommendation from your Committee is necessary to restore, not only our faith, but the faith of all Canadians. This is particularly so because of the serious, dedicated and sincere efforts all governments made over the summer months to make progress; and much progress was achieved. Other provinces will speak for themselves, but allow me to review the events of the summer from our vantage point.

From our opening in Montreal through to our position statements on the 12 agenda items at the First Ministers’ Conference, our theme was, I believe, one of reasonableness, of

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the need for consensus, of the need for a strong central government, and of the need for some mechanism wherein the voices of the constitutent parts could be heard in the decisionmaking process.

Our view on the issues was based on the nature of a federal state as opposed to other kinds of states and governments. In a federal state, there is a national economy and a national identity, but there are also provincial, state, or territorial economies, cultures and identities.

In almost all federal systems, this duality is recognized in the central government through the existence of two Houses of Parliament, in our case, the Commons and the Senate. In almost all federal systems, one House represents the nation on the basis of population, and the other represents the partners equally.

So, in this way, a realistic, national consensus is possible. In addition, the provincial, state, or territorial governments deal with those subjects within their areas of jurisdiction.

Based on this concept, it is our view that the particular division of powers is less important than assuring the provinces a significant role in national decisions. It is also our view that Canadian federalism has never provided a significant role for provinces in our national parliamentary institution.

Our opening statement to the First Ministers’ Conference in September is attached for your information in Appendix “A” but perhaps the following paragraphs best describe our view:

In summary, the principle concern of Prince Edward Island in this process is not to infeeble the central government.

and,

It must be said again, Mr. Chairman, Canada is much more than our federal government. We as provinces have views and perspectives which are integral to our national well being. Being cast sometimes as opponents to some supposed national will is as uncomfortable as it is unreasonable.

Some of our problems are not the division of powers, but it is the role of the constituent parts of the federation in the central institutions that have created some of our problems. We are not interested, necessarily, in significantly more power for the provinces, for our province, but we are interested in some kind of influence and some significant voice in the central institutions so we could have a little influence over how the power of the federal government was exercised.

We do not think there can be a significantly different view of any federation, and we applied this view as much as possible to all items on this summer’s agenda.

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1 might say that on many of the economic issues, Prince Edward Island had no vested interest. For example, our offshore territory is insignificant, and our mineral wealth is meagre. Thus, our positions on a number of issues were taken on principle, and on what we judged to be good for the country. Let me give but one example. We were opposed to giving the provinces the power to levy indirect taxes on natural resources because we think it would be particularly disadvantageous to Prince Edward Island. But we agreed to it because a number of provinces wanted it, and because the federal government agreed. And for that kind of spirit of compromise, and our willingness to make that kind of progress, we are now called power mongers and horse traders. You know little Prince Edward Island is not a threat to anybody, I think we can speak objectively as we see the interests of our country as a whole.

This kind of spirit was manifested by all provinces; and, as a result, significant progress was made.

Prince Edward Island believes that the discussions this summer were beneficial—there is now a better understanding throughout the country of the legitimate aspirations, concerns, and views of all the constituent parts of this federation. While we did not reach unanimous agreement on all 12 items, we came close. For example: 10 provinces agreed on communications; 9 provinces agreed on equalization; 9 provinces agreed on offshore resources; 9 provinces agreed on fisheries; 10 provinces agreed on an amending formula; 9 provinces agreed on resource ownership; 9 provinces agreed on family law. To reach this state of agreement, however, we believe that there exists in this country the basis for a constitutional package, given sufficient time and goodwill. Indeed, many of the premiers on the closing day of the First Ministers’ Conference stressed the need to continue the debate; to discuss and negotiate further because we had reached a plateau from which a sound agreement was attainable. As I stated at that time:

I do not believe that we have failed, for we have only failed to accomplish in a week what most of us recognized from the beginning would require more time and effort.

But even if it is considered by some to be a failure, does that mean that drastic, perhaps illegal, steps are justified? No, we must live with this temporary setback, and renew our efforts. Certainly it is not sufficient excuse for one level of government to act unilaterally to impose its will over all the other parts.

Perhaps, for a moment, we should consider why complete success eluded us. We have already mentioned the timetable absurdity—12 major items affecting the lifeblood of the nation to be discussed, modified and agreed to in three months. Part way through the discussions, the federal government introduced a massive document on powers over the economy which,

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by itself, should have been considered for three months, if at all.

Then we were subjected to the cynicism and manipulation techniques outlined in the so-called “Leaked Document”, which outlined to the federal government a strategy for dividing the provinces, for putting those who disagreed with them on the defensive, and which outlined a plan for unilateral action by the federal government. One might be permitted to think that the constitutional renewal plan was predestined to fail, by design.

1 should like to say with regard to urgency, we should recall it took the original, the first four provinces three years of discussions to agree on confederation in the first place, from 1864 to 1867, and they had no federal government to deal with.

Miss Campbell: They did not have TV either.

Mr. MacLean: So despite our considerable success in the face of many frustrations, is now all to be lost? For our efforts, premiers have been called by the federal government, partners in this exercise, we might add, power-hungry potentates of petty principalities, bartering oil for people’s rights, and fish for basic rights.

We are accused of thwarting some national will. Indeed, we are accused of lacking a national perspective and therefore, are told that the federal government must impose its view of the state, and that there is no legitimate role for provincial economies, provincial cultures, and provincial societies.

If this happens, Mr. Chairman, it will be a denial of our history, and will rend this country to such an extent that the sincere and honest efforts of this past summer may not again be seen for many years to come, because the spirit of federalism will have been fatally weakened.

I would like to consider for a moment that this resolution is suggesting you approve. Because the federal government and the provincial governments were unable to reach agreement on a new constitution, the Government of Canada, through its majority in the House, intends to uniliterally dictate a Canadian constitution. The legality of this action will be addressed by the courts. The wisdom or otherwise of this action should be decided by this Committee.

The federal government maintains that because it is the national government, that because it has a simple majority in Parliament, it has the right to take this action. But there is a vast difference between statute law and constitutional law.

In statute law, we as parlimentarians, make laws by passing legislation, normally reflecting the will of the majority in the legislature. And should we find, as we often soon do, that the law in some respect is unworkable, then we change it. This can be done relatively simply and quickly. If a government persists in making unworkable or undesirable laws because of its majority, the electorate has the right within five years to toss it

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out of office and substitute for it a government more amenable to the peoples’ wishes; but when we write constitutions, we are undertaking a much more awesome task, and I say “awesome” advisedly.

We are not merely enacting laws that can easily be amended or repealed; rather, we are making the rules that determine under what circumstances, and in what fields and by what levels of governments law shall be made. A constitution by its nature, has to consist of stable, abiding and acceptable principles, for by it, the generation that writes it is proposing the rules by which future generations will govern themselves, but it should not, I repeat “not”, try to dictate from the grave, the decisions future generations should arrive at under these rules. These rules should therefore be generally acceptable, and should have the almost unanimous support of all society and all parts of the nation.

It is an awesome responsibility that should not be entered into lightly or hurriedly, much less clouded by political antagonisms. If a proposal for a constitution does not have wide consensus, general support, and as near unanimity of purpose as possible, it should not be proceeded with.

My point is that a constitution is no ordinary law; thus, it must not be imposed on the people by a group which has only a simple majority. Indeed, most constitutions require either unanimity to change them, or at the very least a two thirds majority. This principle is recognized in Section 4(2) of the draft constitution act which is before you, when it states a House of Commons or a Legislative Assembly can only continue beyond five years with the consent of at least two thirds of its membership even in times of apprehended war, invasion or insurrection. This is a sound principle, borrowed I think from a wiser age.

This, I very seriously question whether it is proper or legal for this Parliament to impose its will on the rest of us on such a fundamental but crucial matter as our national constitution.

In considering the propriety of majority rule, I would like to refer this Committee to a document with which you are all very familiar, Beauchesne’s Parliamentary Rules and Forms, Fourth Edition, Citation 67, where Beauchesne quotes from the Rt. Hon. A. S. Amery in a book entitled Parliament, A Survey, and he has this to say:

Decision by a majority is not an absolute and unquestionable principle. “Our constitution, to use Burke’s phrase, is something more than a problem in arithmetic.” There is no divine right of a mere numerical majority any more than of King’s. Majority decision is a measure of convenience essential to the dispatch of business, the result, “of a

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very particular and special convention, confirmed by long habits of obedience.” The idea that a majority, just because it is a majority, is entitled to pass, without full discussion, what legislation it pleases, regardless of the extent of the changes involved or of the intensity of the opposition to them, the idea in fact that majority edicts are the same things as laws, is wholly alien to the spirit of the constitution.

We may add that the majority of the House of Commons does not always represent the majority of the electors in the country. It often happens that, owing to the redistribution of electoral districts, a party may come out of the general elections with a majority of elected members without having received the majority of the votes given by the electors who went to the polls or whose names are on the electoral lists. That party may form a Cabinet, but the Official Opposition together with other antiministerial groups, though sitting to the Speaker’s left, are the real representatives of the people; and their right to challenge by legitimate means every measure or proceeding sponsored by ministers cannot be disputed. In such cases, when the House divides, members who oppose the administration may act on behalf of the majority while government supporters represent the minority of the people in Canada.

In passing, I might say that in the case of this government it was elected by just under 44.1 per cent of the electorate that voted.

Thus, it is the belief of my provincial government that the Canadian constitution should be written in Canada, by Canadians, through their elected representatives in Parliament, and in the legislatures of the provinces. This is the only way we can truly say that our constitution was decided upon by the majority in our country, and not by only the arithmetical majority in one institution. We believe that this sentiment was expressed in the second whereas clause on page 10 of the resolution where it states:

and whereas it is in accord with the status of Canada as an independent state that Canadians be able to amend their constitution in Canada in all respects

We have to conclude as I am sure you will, that that principle of majority will on a constitutional matter is not being adhered to in the unilateral action proposed by this resolution before us.

There are many other comments I could make, both on the intent and the form of the proposed act. However, I would like now to deal rather briefly with the substance of the resolution, and elaborate on certain specific concerns we have with it.

With regard to the amending formula, much has already been said in the House, in the Senate, and before this Committee about the amending formula proposed in the resolution. My province has been mentioned prominently in this debate as the focal point in one of the problems with the federal pro-

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posal. I will comment on its unfairness to Prince Edward Island shortly; but, first, a more general observation.

The process whereby a constitution can be amended is a critical element in any constitution—that is self-evident. We have argued earlier that a substantial majority, not an arithmetical majority in one institution, should agree on a constitution before it becomes law. By the same reasoning, a substantial majority must agree on a specific formula to amend that constitution in the future. But the proposal before you does not provide for this consensus. The most likely outcome of the provisions of the resolution is that the modified Victoria Formula will be forced upon Canadians, either directly by the resolution or indirectly through a referendum.

The so-called modified Victoria Formula has been the subject of controversy since it was introduced on October 2. Many have spoken eloquently about its unacceptability to many provinces, and its utter unfairness to Prince Edward Island. To suggest that the two approving provinces required to approve an amendment must represent 50 per cent of the population of the Atlantic region is to relegate Prince Edward Island to a third class status in Canada. As a member of the federal government and of this Committee pointed out in the House,

it would be impossible for Prince Edward Island in concert with any other singular province of the Atlantic Region to be representative of 50 per cent of the population in that region.

Surely, it is not necessary for us to go into a great deal of verbiage to point out how inequitable this is, and how it results in a degradation of one of the principles of Confederation which allocate certain rights to provinces, not only to large provinces.

Prince Edward Island does not seek a veto power on constitutional amendments—it seems the Federal Government will maintain that right for itself and for Quebec and Ontario. However, we do seek, and insist upon, the right of a voice in this nation’s affairs, in a manner befitting a province of a confederation.

We note that there has been some indication that the Federal Government might consider an amendment to the resolution which would delete the need for two of the Atlantic provinces to constitute 50 per cent of the population of the region in order to have a say on a particular amendment. Obviously, we welcome such a change—in fact, as Prince Edward Islanders, we must insist on such a change.

But even if this inequitable provision is changed, we maintain that the proposal is wrong when it imposes an amending formula on the country. We believe that the BNA Act should be patriated, and that an amending formula be developed through agreement of the provinces and the federal government.

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With regard to the use of a referendum, it would appear to me that most of the concern about this resolution centres around this new so-called deadlock breaking mechanism. Quite frankly, 1 am at a loss to understand why this mechanism should be introduced in such a high profile to our conventional ways of dealing with our constitution. We have a tradition in this country of consensus, of compromise, of co-operation. More importantly, we have the tradition that the legislature speaks for the jurisdiction. We do not rule by the popular mood of the majority on a specific issue at a particular point in time.

More specifically, I object to this section of the proposal because of the following reasons:

a) the process could be used to bypass totally the provincial legislatures;

b) the process permits a referendum where provincial legislatures fail to agree to a federal proposal for constitutional change but does not provide for a referendum where Parliament fails to agree to a proposal for constitutional amendments passed by all the provincial legislatures;

c) all the rules respecting the referendum are solely within federal control;

d) it substitutes the concept of majorities in regions rather than the will of provinces. The constituent parts that joined to create this country are provinces, not regions;

e) I do not believe that a simple majority is enough.

I think before any important amendment to our constitution is made that it should demand perhaps a two-third majority, or at least a higher percentage than 50 per cent plus one. Quite frankly, I believe this Committee should strongly and unanimously recommend to the House that any reference to the use of a referendum be deleted from any Canadian constitution.

An hon. Member: Hear, hear!

Mr. MacLean: Now, with regard to the Charter of Rights, everyone agrees that society through its governments must protect rights and freedoms in this country. The issue is not whether we should, but how we should protect them.

Our position was clearly stated at the First Ministers’ conference in September and I quote:

In no sense is Prince Edward Island’s position one of opposition to fundamental rights, but, rather, how these time-honoured rights are best protected and developed. Our unease on this matter is based on our fear that an entrenched Charter of Rights would weaken our parliamentary democracy. Our position is one of principle. Our parliamentary institutions over centuries have not just defined and nurtured our rights, but in many instances Parliament, expressing the will of the people, has devised our rights. Transferring the definition of our basic social values from our legislatures to the Supreme Court would weaken,

I believe,

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our parliamentary traditions and weaken the very rights which now concern us.

One argument against entrenchment is that in the course of deciding what is meant by a broad phrase such as freedom of religion, judges will be asked to make decisions which shape the character of our community. I maintain these decisions should be made by the elected representatives of the people. I recognize that this is an arguable point, there are good arguments on both sides of the issue, and that neither one is perfect; but inflexibility or rigidity is not the problem of my government, I perceive it as a problem on a different level.

I believe that it is not wise to entrench rights phrased in sweeping generalities in the constitution, because by so doing we run the real risk of changing the character of our governments and our courts. As Premier Blakeney so clearly put it:

What the charter of rights proposed by the federal government undoubtedly does is change the legislative power of Parliament and of the provinces. It raises matters of a type which under existing conventions governing constitutional change, require unanimous consent of all 11 governments, and it assuredly does not have the unanimous consent.

The proposed charter also protects the use of the French and English languages. I agree that a new constitution should preserve the existing constitutional rights, privileges and obligations respecting the French and English languages. I have no quarrel with the obligation for all federal undertakings to be made available in both official languages; but beyond that, I believe it is the responsibility of the individual legislatures to determine the extent to which undertakings will be conducted in which language. Legislatures must, of course, respect the rights and wishes of their minorities on the language question. I believe, for example, that the legislation recently enacted in our own province whereby a school board must provide French language education where the parents of a minimum of 25 students over three grade levels request it, is typical of how legislation can and should protect the rights of its minorities.

Another area of concern is the proposed nondiscrimination rights in Section 15. It appears to us and to many others that this proposal, although with the best intentions in the world, may require the abandonment or alteration of some highly valued legislative schemes. For example, human rights legislation has limits and exceptions which would be in violation of this section. Also, many age based schemes would be in jeopardy.

I would be remiss if I did not compliment the federal government on the following point: as some of you may know, the federal position all summer was that the right of a citizen

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to own land in any province would be included in the Charter of Rights. Our province, so dependent on our land, would have been vulnerable to massive instances of absentee landlordism, again as we were a hundred years ago, if such a right was made available to all Canadians with regard to our province. Our Attorney General, Mr. Carver, made a spirited defence of our position and a spirited attack on that proposal during the First Ministers’ conference, and we are gratified to see the federal draft no longer contains such a proposal.

With regard to equalization, the principle of equalization is one which has been accepted by all governments in Canada for many years. The necessity of and benefits from such a practice has been well stated in previous debates in both Houses and before this Committee.

Prince Edward Island has an interest in ensuring that this necessary practice continues. We were very pleased with the discussions this summer when all governments agreed with entrenching the principle of equalization in the constitution. We also understood that 10 governments, British Columbia being the exception, agreed on the specific wording to go in the constitution.

You can then, no doubt, appreciate our shock when we saw that the wording of the resolution on this matter has been altered considerably from what had been agreed to this summer. What we now have is a diminished statement of intent. Specifically, the proposed wording does not mention the words “equalization payments’’; does not indicate that the payments will be made to provincial governments; and uses very unclear and ill-defined terms such as “undue burden of taxation”.

Mr. Chairman, Prince Edward Islanders have a great love for this country, they are proud to be part of it, and we wish to see it unite, grow in strength and to prosper. We do not want to see partisan politics or personality conflicts diminish the stature of this great nation. I believe they want their representatives to urge and to argue for the larger interests of Canada. Thus, I am sure that I represent their views when I state that it is more in sorrow than in anger that I see the divisive effects of this unilateral action on our nation. If a constitution does not have the support of a great majority of its citizens, then instead of healing the nation’s wounds, it exacerbates the fires of divisiveness or even separatism in our country.

In essence, I am here to plead with you, for Canada, that you recommend to Parliament that the present course of action be stopped and the BNA Act be patriated as it is, to be changed by Canadians, in Canada.

We plead with you to do this for all the reasons I have mentioned: but, for more than any other reason, I urge you to act to prevent this destruction of the very fabric of Canadian

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federalism. If the powers and rights of Prince Edward Island, for example, and any province can be altered by the federal government acting alone, then I can honestly tell you that we can never again feel secure about the position of our province in Confederation. For the truth is that we will have neither a federal state nor provinces. Provinces will no longer be provinces. They will be equivalent to municipalities with their powers and jurisdictions subject to change by a future federal government that may decide to act in a similar fashion. In fact, similar action in the future will be easier because a dangerous precedent will have been established. Provinces will live forever in a state of apprehension.

Speaking of apprehension, it has been said by some that Prince Edward Island is biting the hand that feeds it. We do not believe that. We refuse to believe that any federal government will treat provinces differently just because provinces express sincerely held views about the fundamental issues of Canadian federalism. However, even if we did believe it, we would still speak our mind, for anything else would condemn us to a demeaning and pitiful existence. Besides, there are times when one must say what he thinks is right, simply to preserve the dignity and self-respect of the people for which he speaks and also because he thinks it is right.

Thank you, gentlemen. I am sorry that I have taken so long.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. MacLean. I would like to recognize as the first speaker, to open our discussion with our distinguished guest tonight, and witness, Senator Macquarrie.

Senator Macquarrie: Thank you, Mr. Chairman.

I appreciate those colleagues who were kind enough to defer to a freshman Senator and an absolute newcomer on the committee. It is not unusual for Premier MacLean and I to be discussing national matters. It is a little bit intimidating because while I feel sometimes I have been on Parliament Hill if not from the year one, at least from the year two. When I came up here nearly a quarter century ago, he had already been around for six years ahead of me, so it is very fitting that we have a Premier come to discuss these matters with us, and it is particularly appropriate I think that it should be the Premier of Prince Edward Island the birthplace of Canada and the cradle of Confederation, and I like very much the Premier’s proper recognition of the place of the Founding Fathers, and as I listened to the brief and read it carefully, I was in the difficult situation where you find yourself substantially in agreement with a point of view, you can hardly say merely, “Hear, hear.”

However, there is only one negative thing I could say, just to show how attentive I was, that I always am grated when I hear the word, “patriation” in these documents. A few years ago they used the proper word, which was “repatriation”, and over the years we have gone to a nonword, “patriation”. That is not technological or a semantic exercise at all because if we do not recognize that the British North America Act was in fact a

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Canadian document, made in Canada by Canadian politicians, then we are quite likely, I think, to fall into the pattern of 1980 by suggesting that another government do fundamental things for this country rather than our own.

1 am interested in Premier MacLean’s suggestion of patience, 1 am always troubled when people come along and say this is the last chance, the sky is going to fall tomorrow. I think that his suggestion that much has been accomplished and much time is needed to accomplish more is an appropriate note to be sounded by a man of his statesmanship and experience.

I am impressed, too, that the Premier was one of the first people to enter this discussion and say simply and clearly that he is not afraid of clearcut repatriation without an amending formula. I notice certain Canadians shuddering all the way to the witness stand about about the idea of not having an amending formula. I note that and I commend him on that.

1 was disturbed by the Premier’s comment about equalization. It strikes me that he related a substantial agreement, an arrival at a plateau of consensus and then when the constitution document emerged from the federal government there were substantial changes leaving equalization an item of not very great significance.

Now, I am wondering if the Premier feels that this exercise in—I do not want to use pejorative language, the exercise in bad faith or the shock which his government received, were there other aspects of the document which we have before us which deviated from what the Premier felt was a consensus or a budding consensus in the discussions, and if so, does he feel that deviation, that alteration from the agreed upon is in itself a factor creating difficulty at this particular stage. In other words, 1 would be interested to know if the equalization matter is an isolated one or have there been other situations? I think it is important, Mr. Chairman, for those of us who do not attend these meetings of the heads of the provinces and of the federal government and, when we have a man who has been at them all, I think it would be well to ask him.

The Joint Chairman (Mr. Joyal): Mr. MacLean.

Mr. MacLean: Mr. Chairman, with regard to equalization, it should be remembered it is about the only thing in the resolution on which there was a high degree of agreement by the provinces, and I am not here to question the motives of the federal government but I think they should be explained because we were under the impression that the original wording was adequate and was, as far as we knew, agreeable to the federal government as well, and we should at least have an explanation as to why the changed wording, what made it necessary, what was the motive in changing it, what will be the effects of changing it at some future date if the interpretation of what it would mean is left to the courts. We would feel much more secure if the original wording, which was more specific, had been retained.

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Senator Macquarrie: I would like to ask the Premier if he finds that this document, the constitution 1980, has any substantial sections that he could support and take some of this as another upward movement on the plateau of agreement that he mentioned. Has this dome anything at all to improve the possibility of consensus which, in my judgement, the Premier rightly stressed as the essence of the whole thing?

Mr. MacLean: Well, I think there is a wide agreement on the appropriateness of the constitution being repatriated, and 1 stand corrected, and there is almost universal agreement on the matter of equalization because in practice it is convention already and it is a matter of encoding what has been accepted practice for some time.

There are many other matters on which there was very considerable agreement between the provinces, and in some cases we thought with the federal government as well, which are not in the resolution.

Senator Macquarrie: I must say that I liked the Premier’s positive note when he commended what the federal government has done in reference to the land policy and I too, heard Mr. Carver’s most excellent statement on that and we are all very proud of him. Since the Premier has presented such an excellent brief here tonight, I wonder if he and his government are planning on making a presentation to the British committee or has he other activities in the process?

Mr. MacLean: Mr. Chairman, the position is at the moment that the british Standing Committee is interested in having the views of the provinces and they have been invited to present briefs and this will be done in the case of prince Edward Island and it is likely that a representative of the Government of Prince Edward Island will appear before the committee in person.

Senator Macquarrie: Thank you, Mr. Chairman. Thank you, Mr. Premier.

The Joint Chairman (Mr. Joyal): Thank you very much. Mr. Lome Nystrom.

Mr. Nystrom: Thank you, Mr. Chairman.

I want to also welcome back Premier MacLean to his old stomping grounds, it is very nice to have you here with us this evening and hear from you a very comprehensive and very thorough brief.

One of the things that struck me all throughout your brief, Premier MacLean, was your concern that we need more than just a simply majority, that a constitution is different than a basic law or basic statute, and I am 100 per cent in agreement with you on that issue. I think we need more than just a simple majority. I wanted to ask you for a couple of recommendations that perhaps you can make to our Committee.

First of all, if one looks at Part IV of the resolution before us and looks at Section 39 in the resolution. Now, Part IV is the part that deals with the interim amending procedure and also outlines the possibility of a national referendum to select our amending formula, and I am sure, Mr. MacLean, you are very familiar with the process that is outlined. It allows the

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possibility of the provinces, if eight of them agree and represent 80 per cent of the population, putting forth a single proposal for an amending formula and if the federal government does not accept that, there will be a referendum, and the federal government will propose its option which could be the modified Victoria formula or any other alternative, we do not know what that may be, and the provincial option.

But we see in Section 39 that a simple majority of people would determine what our amending formula is going to be. You can do some very quick arithmetic and you will find that we can have some very awesome divisions in this country as we had during conscription when we had French Canadians voting one way and English Canadians the other; eastern Canadians voting one way and western Canadians another. Or, in the extreme case, because Ontario has 37 per cent of the population, a heavy approval for one amending formula in Ontario with each of the nine remaining provinces voting heavily against it would still carry. We have the amending formula where one province votes yes and the other voted no.

Can you recommend to us, Premier MacLean, an alternative to what is suggested to the simple majority in Section 39, Part IV of the resolution?

Mr. MacLean: Well, I am not here to think that I can come up with a solution right off the bat to these difficult problems; but what I do hold is that we should have an open mind and have further discussions between governments and with the Canadian people on what would be generally acceptable. I can envisage the possibility of great divisiveness resulting from a referendum procedure. Some situations you have already outlined.

But even if the support or otherwise of a particular course of action was across the country, and you had each area voting 50-50 plus one in each area, I cannot imagine a more divisive situation than that; because it imposes on the minority a feeling that reason is not being appealed to; that there is not consensus; there is not agreement—a kind of sense that we as Canadians have to agree how we do things together.

I think for a country to prosper and to grow and to be happy with itself, we should limit ourselves to matters on which we have a large measure of agreement. If we do not have a large measure of agreement we should not do it.

Now, I would like to reiterate that I do not question the motives of the federal level of government in this matter. It would be inappropriate for me to do so.

I can see where they feel, perhaps, that they have a very worthy cause, and they may have convinced themselves that they are fighting to save Canada, or that they are high minded or that in difficult times you have to have this degree of determination to carry the thing through.

But I would say, in all humility, that one’s good opinion of one’s own motives is not a defence against evil deeds. You know, the road to hell is paved with good intentions. I am saying this, not in an attempt to be aggravating or anything of that sort; far be it from me to take that attitude.

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But nearly every evil that humanity has been heir to, from Attila the Hun to Adoph Hitler was brought about by people who thought their motives were the best possible and worthy way to solve a problem.

We have to try to avoid divisiveness. We have to have a large measure of agreement from the public.

We can delude ourselves very easily—anybody can—by thinking that his case is pure; but I perceive and I say this very regretfully: the public in large numbers at the present time view the attitude of the present government, the federal level, as stiffnecked and uncompromising as well as cynical. As a matter of fact, they are beginning to view them on this subject as fanatics; and I use the term in the Churchillian definition of “fanatic” when he said that a fanatic is someone who cannot change his mind and would not change the subject.

I honestly that this is the time, in the interests of our country, when we should relax about this whole thing a bit. We need some cooling off period, if you like.

Mr. Nystrom: Thank you very much for that answer.

Again, on the question of the simple majority and the use of a referendum, you refer on page 17 of your brief to a number of things we have already discussed in this Committee, and a number of objections have already been made: such as the fact that the process can totally bypass the provincial legislatures; that there is no way where the provinces can initiate a referendum if there be a deadlock in parliament and not in the provinces, and you are also concerned about the rules of the referendum.

But you say at the top of page 18, for example, that there is a formula here which substitutes the concept of the majority in regions rather than the will of the provinces.

I want to take you through Section 42 and to something which I think is new and which we have not discussed and which shows that it is even really worse than what you are suggesting.

Section 42 on the referendum says that we have, in essence, four regions in this country: Quebec, Ontario, the Atlantic Region and the West. It says if there is a national referendum there has to be a majority in Quebec, a majority in Ontario, a majority in at least two of the western provinces according to the latest census, a combined population of at least 50 percent of the population of all western provinces, and of course, the same thing for the Atlantic provinces.

I wanted to point out to you that if you can have a referendum in this country in a constitutional amendment or you can have a majority in Quebec and a majority in Ontario, and a minority in the Atlantic provinces, a minority in the West, and a minority in the North, and it can still carry.

If you look at the population figures—and Professor Richard Simeon of the Institute of Intergovernmental Studies at Queen’s University has done some work on population figures, and he has found, for example, that if you had in this country a constitutional referendum you could get a simple majority, because of a fairly heavy vote in Ontario and Quebec, a simple

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national majority; you obviously then have a majority in the two regions of Ontario and Quebec.

But he has found for example, that British Columbia and Saskatchewan, their combined populations representing over half the population of the West, could vote narrowly “yes” in favour of constitutional amendment; but Alberta and Manitoba could vote fairly heavily “no”, and if you were to add up the statistics in Western Canada, you will find the majority of people are voting “no”, but because of the fact that it is approved narrowly in British Columbia and in Saskatchewan, you have a majority of the people and it will still carry.

The same thing is true in your region, Mr. Premier: you could have the majority of the people in Newfoundland, New Brunswick voting narrowly “yes’,; and you could have Nova Scotia and Prince Edward Island voting “no”, and it would still carry. You could have people in the Northwest Territories and the Yukon voting “no”, and you would have no involvement whatever in the amending procedure, and it would still carry. So you would have three out of the five regions voting “no” and the constitutional amendment would still carry.

Have you had a chance to look at that part of Section 42, and if indeed the federal government stays with the referendum procedure—and I know you are opposed to a referendum—and I wonder whether or not we should be making changes to that provision where we require perhaps the majority in each province or the majority in each region?

Mr. MacLean; In reply, I would like to make it clear that I reject the notion of a referendum. But if it is imposed, I would hope it would be improved upon so that this sort of thing would not happen. I would like to point out that, as far as Confederation is concerned, through varying circumstances, the provinces came together or were formed at a later date with a sort of covenant between each other as to what their rights and privileges and obligations in the new confederation should be and the division of powers between the two levels of government—powers that were previously exercised between the colonies, on the one hand, and Britain, on the other.

I would like to point out that we, in the Atlantic provinces, have been dealing with two levels of government in the colonial period for over 100 years or about before Confederation; roughly a century; and that in the process of confederation some of the former responsibilities of the mother country, as it was then called, were transferred to the federal level of government with the agreement of the provinces and the provinces had certain responsibilities of their own, and the whole thing, as it were, was a contract between discrete provinces and not areas.

Therefore, I think it is essential that there should be a majority in each province. But if that is a requirement, I think it is much more logical and less foreign to our way of doing things that the government, the legislatures rather, of the provinces speak as the voice of the provinces.

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The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.

1 would like now to recognize Mr. George Henderson.

Mr. Henderson: Thank you very much, Mr. Chairman.

First of all, Mr. Premier, 1 would like to join with the rest of the people around this table in welcoming you back to Ottawa, and to welcome also the honourable Mr. Driscoll and Mr. MacCormac.

I should also congratulate Mr. MacCormac, because I think when he was introduced tonight, Mr. Chairman, you called him “the honourable Mr. MacCormac’,, and unless something has happened since I have lived up here or Prince Edward Island has decided to go entirely on its own and appoint a senator, I presume that is incorrect.

The Joint Chairman (Mr. Joyal): I will tell you, Mr. Henderson, that I wish him the best for the future.

Mr. Henderson: Mr. Premier, I said that I welcome you here because you are the only Premier in this country who has served for 25 years as a member of Parliament in the House of Commons, and I might add you distinguished yourself very well in those 25 years.

I would also like to thank you and your officials for appearing before the Committee this evening and for sending your submission to us on behalf of our great province, Prince Edward Island.

I have had an opportunity of reading your brief this afternoon, and I might say there are a number of very great points in it with which I agree.

I cite the so-called modified Victoria Formula that is in this proposal that would have been very unfair to Prince Edward Island. I must say to you this was brought up earlier to Mr. Chrétien when he appeared before this Committee and he agreed that he would delete that formula and go back to the formula of any two provinces and Prince Edward Island.

Also on page 21 of your brief, you applaud—perhaps the only place where you do applaud—the federal government on the land legislation in P.E.I. where there were changes made to accommodate Prince Edward Island and I might add they were very worthwhile changes, because I understand, and know as you do, that Prince Edward Island does have a limited amount of land.

So we have to protect the top ten inches of our soil.

But while I say there are a number of good points in your brief, nevertheless, I must comment on some other sections, and probably ask you for some further clarification on the intent.

I go to page 2. You say that while you are pleased to be here on behalf of the people of Prince Edward Island, you are also very conscious of the fact that you speak only for the present and while you may speculate on the future you cannot legislate for it.

We must leave room for our future actors to play their parts, we cannot today write their scripts.

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If we were, as you suggest in the brief the temporary players of today’s stage of history, surely then it would seem reasonable that it would follow that the people who come behind us would also be the temporary players of that particular time.

If we assume that attitude, the attitude that you put forward in this brief, we will in fact find ourselves once again for all time in a constitutional deadlock, a straight jacket. Because it is true that for the last 53 years we have not been able to reach a consensus.

I might say also I do not believe it is the intent of this government to write the entire script for the future players as you suggest, but rather to provide them with some guidelines which ultimately will make them probably better players.

Now, on page three you state:

Constitutions should be written by the people through their elected representatives in all 11 legislatures, in other words, through the political process.

So if we go back to two again, you said:

Constitutions are a sacred trust, agreed to, not by governments, not by political parties, and not by politicians. Rather, they embody the spirit of a people, and express how they wish to be governed. Constitutions are not ordinary pieces of legislation, to be enacted, repealed, or indeed amended, like a highway act. . . Rather, constitutions provide the ground rules for governments. They tell governments what they can legitimately do and not do, and how they shall do it.

I suppose if you used that last phrase, rather than embody the spirit of people that express how they wished to be governed, then in the event of a deadlock breaking mechanism it would probably seem fair to ask the people to exercise the franchise of this country as to which amending formula they wish, or what they would want in the constitution. Do you have any comments on that?

Mr. MacLean: Mr. Chairman, 1 want to thank the honourable member for the points he has raised and if i may deal with them in a different order.

1 am especially indebted to him for raising again the script on page 2, where, when 1 was reading it, pointed out that there were typographical and editing errors which the honourable member quickly picked up. When I read it I corrected as I did and what it should read is:

You are not

Now:

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asked to deal with ordinary legislation, but you are asked to deal with our constitution. Constitutions are … sacred trust, agreed to, not only by governments,

And:

not

Only:

by political parties, and not

Only:

by politicians. Rather,

Constitutions should:

embody the spirit of

The:

people, and express how they wish to be governed.

Which is the intended meaning in the corrected version with regard to that.

The point I was trying to make with regard to trying to write the script for future people on the stage of history. There is a strong temptation to try to impose, and it is understandable and 1 think maybe the risk has to be taken sometimes even, to embed in the constitution details of perhaps something or other that seems current and quite agreeable and everything at the present time, but time change; society’s concept of what is right and what is fair, and what is proper, hopefully will improve as time goes by, and there should not be anything in the constitution that will inhibit the progress in the future. That was all I meant with regard to that. It is absolutely essential of course, that in the constitution we have the ground rules under which governments operate.

For example, that there shall be an election every five years in our case, and that sort of thing. When we start to transfer what is now statute law, the amending of which and the changing of which is more flexible, into the constitution, we have to be extremely careful that we do not inhibit progress in the future by congealing as it were, the morass of 1980 permanently into the future.

Now, with regard to the 50 percent of the population business in the Atlantic provinces. The present situation reduces Prince Edward Island, and I do not say this in a derogatory way, but as an attempt to measure the situation, the large provinces, Quebec and Ontario in this case, because of their size had a special weight in the situation, they have an effective veto. Whereas the other provinces, the western provinces and the Atlantic provinces together do not have as much weight in deciding what amending formula, for example, will be in use in the future.

With the wording that is used here with regard to Prince Edward Island, Prince Edward Island is in an even lower category, third class if you will. It could not unite with any province and they together would form a majority, it is impossible because of the size.

Now, if I can say in passing I make no apology for Prince Edward Island’s smallness. After all we came together as colonies in some cases. Some small, some large in the first instance, and I might add that some of the larger provinces

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had great additions added to them geographically since Confederation.

As I tried to say further back a constitution or a confederation was a kind of a covenant between various, what are now provinces, colonies in most cases in those days and they have rights regardless of their size, in my judgement. You know, justice should be justice.

The federal government is very concerned with the rights of minorities, and I agree with them, minorities have to be protected. One of the provinces, eight of the provinces other than Quebec and Ontario are in themselves minorities, and they are even collectively a minority, all eight of them put together are minority. If you determine what you are going to do solely on the basis of population. In my way of thinking that does not represent justice. A court does not determine what an individual is entitled to, of what is right with regard to him because of what he weighs, or how big he is, or how small he is, or whether he is rich or poor. Surely an element of that sense of justice should apply to the provinces as well.

For example, suppose Bermuda were to join Canada, I think it would be a great asset to Canada and Canada would be greatly enriched and strengthened and would benefit by such a thing taking place. If Bermuda were listening to this discussion they would have great hesitation about coming along.

Mr. Henderson: I agree with you that Prince Edward Island should not and will not apologize for its size.

You seem to have made the point quite consistently to this proposal that you have set up, all through your document, your position paper, that the federal government seems to be the big bad guy, and I have a letter from Premier Davis and I have his position here and that is not what he is entirely saying; because he says back in 1971; and you know when we are talking about amending formulas and you mentioned a little earlier the percentage, probably that is one of the difficulties of the provinces ever getting together, and the federal government through the last 53 years and then coming up with an amending formula that would be satisfactory to all concerned. Mr. Davis goes back to 1971 and he says when.

I attended my first constitutional conference as Premier in Victoria, British Columbia. At that time there was an encouraging consensus on the need to bring home our constitution, entrench certain basic elements within it and ensure that there was a formula by which Canadians, through their provincial and federal governments, could change that constitution in the decades ahead, should that become necessary or appropriate.

In fact, that agreement, which has come to be known as the Victoria Charter, was thought to have been Finalized until the Government of Quebec backed away from it after further consideration …

During each of the constitutional discussions that has taken place since that time the government which I lead has fought very hard for four very basic constitutional guarantees:

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We believe that the Monarchy must be entrenched within any new constitution and that the Queen must remain Canada’s Head of State.

(2) We believe that the rights of all Canadians should be protected through a constitutionally guaranteed charter of human, democratic and political rights. Even with our historic traditions, it is a mistake for Canadians to take these rights for granted. Such a charter would protect all of us, individually and collectively, from any government encroaching upon or denying civil liberties. Ontario Progressive Conservatives have always believed that equality before the law, protection from unlawful arrest, freedom of speech, freedom of assembly, freedom of thought, freedom of religion, are basic to a tolerant and free society of which we in Ontario have every right to be so proud. The way to ensure that society is “to enshrine” basic rights within the constitution where it cannot be readily changed by a given parliament or legislature.

And he goes on with other things such as minority language and mobility rights. He says:

(4) We believe that mobility rights for all Canadians— rights of all our citizens to move freely from province to province to seek jobs and employment in whatever part of the country they wish—must be assured.

And he says this because this has become particularly important in light of recent efforts of a number of provinces to erect barriers to the free movement of people:

In the end, therefore, when the federal resolution, now being debated, was introduced, my government found itself considering a “constitutional package” made up largely of proposals which we had advocated over the years and without any of those provisions to which we had previously taken exception.

And he goes on to say that after 113 years of not being able to come to a consensus he did not see much hope of any consensus but the provinces:

My view is that we should not trade off basic rights, as are now being proposed, against specific provincial demands. Further, if we wait for unanimous consent, we may wait forever. If, however, we settle for the basic package now, there will be ample opportunity in the immediate future to work, in a Canadian context, for a fair solution to the rest of the constitutional issues.

And I think he said later on that this same thing is supported and he was pleased with Premier Hatfield of the Province of New Brunswick, and Premier Blakeney, the Premier of Saskatchewan have associated themselves with his position. He is against of course the legal aspect and he said:

Therefore, when the Premiers met in Toronto, on October 14, I proposed that, rather than pursue costly and divisive

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legal battles in the courts, all Canadian legislators, including the Premiers and the Prime Minister, should attempt to resolve their differences. I urged that, if there were specific and justifiable concerns with respect…

And he goes on. And I do not want to read it all. These are things which point out to me that it would have been very, very difficult for the premiers to sit around and get a consensus. Maybe, you know, that has been the situation over the last number of years. Mr. Davis goes back to 1971, you know, how do you ever see us coming to a consensus and do you agree with Mr. Davis and indeed with this package that we are presenting of entrenching basic human rights; rights of majority and 1 think there is some urgency in this case because we have had several premiers who have stated that they are sort of in a position now where they would like to cut off mobility in this country.

We heard the Territories today, and you know, they have some good reason too the Territories, probably. You know, this cannot wait for ever and Prince Edward Island especially, where we had a lot of out-migration have over the years and seem to have in the last while back, this could be very detrimental to our young people. Do you have any comments on that?

Mr. MacLean: Yes, I do, Mr. Chairman, there is a number of questions that have been asked. In spite of Mr. Henderson’s kind invitation I will not presume to speak for the province of Ontario. However, I would like to.

There are differences of opinion, naturally, between provinces to certain degrees, but I am more of an optimist than some. 1 think that agreement, consensus can be reached. I think it is something worth striving hard for because it is very valuable if it is reached. There are basic rights that certainly have to be protected.

The only question is, there are a number of problems with regard to this and one is the definition of what is basic rights, what we mean when we use the term and we should be agreed on that.

The honourable member cited, for example, the right of mobility throughout the country, and that is an objective; but I think again that it is not something that is quite as simplistic as that. 1 think there are some rights that one acquires by domicile, if I can put it in those terms. For example, I am sure that some provincial election acts and perhaps all of them require a period of residence in the province before you can vote in it.

There is a domicile right recognized even under federal legislation, in the Canada Election Act, for example, you are required to be a resident in your constituency for a period of time before you are entitled to vote in it. Now, that recognizes that domicile gives the individual certain rights and responsibilities with regard to his area over and above his rights as a Canadian citizen.

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We have to be very careful I think, that in our attempt and in our desire, which is an admirable objective, to give Canadians basic rights that we do not in our attempt inadvertently take from them rights they have already.

I would like to add that I think perhaps we talked a little too much about rights without coupling with that responsibilities. I think the two things go together. I think I would go so far as to say that in some particular limited ways, very limited, that there may even be what one might call domiciliary rights with regard to provinces.

1 think that the restrictions on interprovincial trade and so on that are talked about a great deal are perhaps exaggerated. My experience is that they are very limited and they are usually expressed, if at all, as a slight preference for perhaps government purchases that local suppliers might have an advantage, and this is brought about because it is possible in the real world for a highly efficient and competitive small company to be in an unjust and unequal position with regard to some large corporation which would like to exterminate it as a nuisance and can bid on material below cost perhaps, even. We have to be careful that we do not inadvertently make errors.

That is my position on it.

Mr. Henderson: I would like to debate that for a little longer.

The Joint Chairman (Mr. Joyal): Mr. Henderson, I recognize that you have overspent the time that was allotted to you and I have many, many …

Mr. Henderson: I just wanted to ask one more quick question if I could.

The Joint Chairman (Mr. Joyal): Well, I am sorry, maybe I can keep your name on the list for the second or third tour around this table but I would like now to call on Mr. McMillan.

Mr. McMillan: Thank you, Mr. Chairman.

May I begin by joining other members of the Committee who have thanked Mr. MacLean for his very thoughtful and eloquent presentation. Premier MacLean is not known to me nor to the thousands of others who have followed his career with admiration as a man given to exaggerated rhetoric so it is quite striking, at least in my case, to hear Premier MacLean use uncharacteristically strong language such as his view that the government’s resolution, if given effect, will: “Destroy the very fabric of Canadian federalism”.

Such language from anyone else might be considered strident but coming from a very moderate and gentle man it carries a lot of weight.

My concern, Mr. Chairman, is with the matter of referenda as a means of deciding national questions, especially as referenda might affect adversely Prince Edward Island. As the premier will know, the Liberal member of Parliament for the Montreal riding of Vaudreuil has been distributing very widely on Parliament Hill a representation that he made to the Minister of Justice, and with your indulgence, Mr. Chairman, I will quote it very briefly, at least part of it. The member said:

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It is reported that you are prepared to concede even more power to Prince Edward Island. This Island has a population about equal to that in my constituency, yet it has four MPs and a complete provincial government with powers that exceed those of the government of the State of California. There has to be a limit. Prince Edward Island is too small a tail wagging too big a dog.

Well, Mr. MacLean, that view is not an isolated one on Parliament Hill, as you well know, it is not from a crackpot and it is not from a voice in the wilderness. It is a view that I of course oppose but I think it is shared to some degree at least by other members in that particular member of Parliament’s own party. Given that attitude …

An hon. Member: Name names.

Mr. McMillan: I do not wish to engage in argumentation, Mr. Chairman, but I did put a motion before the House of Commons calling upon the House of Commons to repudiate that statement and the members of the government voted against the motion in the House of Commons, but that is not my point. Supposing, even if you take issue with it, that that attitude does have some currency, even if the government’s amending formula is modified so that the most blatently and most outrageously discriminatory provisions are removed that affect Prince Edward Island, are you concerned that if we as a country start deciding national questions, constitutional ones and others, by referendum, that it may well just be a matter of time before this sort of view gets institutionalized to the point where Prince Edward Island may even lose its status as a separate province of Canada, or short of losing its provincial status it might lose some guarantees that are already in the constitution.

For example, the British North America Act at present guarantees the right of a province to a number of members in the House of Commons not less than the number of Senators representing the province. Well, if we start deciding questions by national referenda, Mr. Premier, is it not possible that the populous cities of the country and the populous provinces might well in fact sort of gang up on a small province, a defenceless province such as Prince Edward Island, so the question I am addressing to you is not so much the process itself but the possible consequences of the use of that process for Prince Edward Island? Do you envisage the possibility that Prince Edward Island might be adversely affected to the point of losing its provincial status or many of the privileges and guarantees that it already has under the existing constitution?

Mr. MacLean: Mr. Chairman, I suppose anything is possible. For example, in this regard we are not sure what possible ways referenda may be brought into play in the future, and that changes the ground rules as far as we are concerned.

We came into Confederation as a province. We are slightly more populous now than we were then and, relatively, our weight in Confederation of course on a population basis is much less than it was at the time of Confederation, but as I tried to explain earlier, we were a province, a discreet unit that came in by agreement, and it was difficult to achieve that actually because Prince Edward Island entered Confederation

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rather reluctantly, as you know. However, there is a covenant, as it were, between the residents of Prince Edward Island and the rest of the country and if for one moment any province which came into Confederation on certain terms believed that in the future those terms could be changed or bent or modified to their disadvantage, they probably would not have come in in the first place.

And I want to say a thing or two about relative size. While it is true that the largest provinces are many, many times larger than Prince Edward Island in population, this is nothing that is unique in the world. Even in the United States, our closest neighbour, there is approximately the same differential in size between the smallest states in population and the largest states as there is between Prince Edward Island and Ontario, as far as population is concerned, for example. You might even be able to find a case in the United States where it would be greater, and yet the states of the United States are equals in that federation, each of them electing in that case two Senators. It is never said that this is outrageous because California is 85 times bigger than Nevada in population, or whatever the figure is, I just pulled those figures out of the air, but I know it is very large. And that is a principle that we think is fundamental in Prince Edward Island and I think we are perhaps more highly conscious of it than most provinces are because we are small and we feel strongly that the principle of justice has nothing to do with one’s size.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. MacLean. I have many other colleagues who wish to ask questions, and I keep all the names down on my list and I am in the hands of the honourable members of this Committee to go on as long as the honourable Premier MacLean wants to remain at our disposal.

Monsieur Jean Lapierre.

[Translation]

Mr. Lapierre: Thank you, Mr. Chairman.

Mr. Premier, be assured that 1 appreciate very much your comments in your brief, being myself an islander being from the Magdalen Islands and that each time I leave my islands, after five hours of voyage I call at your island.

First of all, I would like to say that the comments of the MP from Vaudreuil represent a very isolated view and that the vast majority or the quasi unanimity of the members of my party have a lot of consideration for Prince Edward Island and recognize its full provincial status. I must even confess that my colleague to my right, Mr. Henderson, told us particularly in the last weeks of the importance of Prince Edward Island and put forward your interest before this Committee and before the Minister of Justice. I think that his intervention carried a lot of weight and, as you know, the Minister of Justice decided to agree to his recommendations.

Mr. Premier, having heard your comments, I am somewhat concerned when you question the urgency to act.

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Mr. Premier, 1 did not see you around during the referendum campaign in Quebec but let me remind you that during that campaign the politicians, both federal and provincial, and I mean particularly your colleague from Ontario came and promised to us, Quebecers, that there would be some action, that there would be changes.

My leader also promised to ask the same thing and stuck our heads out when we gave him our support.

After the failure of last summer, you seem to say that progress has been made. I mean real progress. Is it really the case?

I sat as an observer on the federal-provincial conference and personally I have not felt any real progress.

Even the impossibility of achieving a federal-provincial consensus—as you know, I fully agree with the importance and legitimacy of your gesture—I would like to know first of all— you do not have real confidence in the modified Victoria formula but through Mr. Henderson’s amendment we will come back to the pure and original Victoria formula—I would like to know what was the position of your province at the 1971 conference of Victoria relating to that amending formula.

[Text]

Mr. MacLean: Well, Mr. Chairman, I want to say in the beginning that I realize very vividly and sympathetically that in our confederation various parts of the country have special problems and 1 recognize that this is so in the situation of Quebec. I do not pretend to be able to speak for Quebec, and 1 say that in all modesty, because I think that Quebec should and the people of Quebec must decide for themselves.

I intentionally avoided being involved in debate in that province a few months ago when the referendum in that province was coming up, because I think there is a, and 1 say this without any reflection on anybody, but I think there is a tendency, perhaps unfortunately, in the country generally to perhaps find a scapegoat in the constitution for all the ills that we are heir to. 1 think it is somewhat deceptive to suggest that by amending the constitution in a certain way, that all of these problems are going to disappear. I think that the problems are much more fundamental than that, much deeper, and that there is a greater hope for our country in trying to improve our attitudes towards each other and acting with a spirit of justness and fairness within the constitution we have and not precluding amending it at all. I am not suggesting we should not amend it, but we should amend it only in ways that we can all, if not agree, to at least fairly cheerfully acquiesce, and in that way, only in that way I think can we develop a sense of togetherness and a destiny, if you like, as a country.

[Translation]

Mr. Lapierre: Mr. Premier, as you said, we did decide for ourselves through a referendum and 1 thought that the response was very positive for Canada and that is why I personally favour that kind of a formula because really a referendum gives us “sense of belonging”. Mr. Premier, you say in your brief that:

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1 agree that a new Constitution should preserve the existing constitutional rights, privileges and obligations respecting the French and English languages.

[Translation]

Mr. Premier, with the rate of Francophone assimilation of 40 per cent in your province which has the second largest Francophone component percentage wise in Canada, as you know the largest one is New Brunswick and then it is your own province with 13.7 per cent of Francophones, and I would point out that Quebec has only 10.6 per cent of Anglophones, given those figures, Senator Roblin pointed out that his province had far less, that Manitoba had far less Francophones and recognized the quality of the two languages. Yesterday evening the Federation of Francophones Outside Quebec urged us to have the quality of the two languages recognized in all the provinces and in all the provincial institutions.

Mr. Premier, without getting into a political debate, I would like to know your response if tomorrow morning this Committee decided to impose it upon you—and I emphasize the word “impose”—through the provisions of Section 133, would you welcome and accept that change in your regime as a means of respecting that equality or would you be reluctant?

[Text]

Mr. MacLean: Mr. Chairman, it is with regard to language rights you speak now? Language rights are a very difficult and emotional problem with varying difficulties and problems from place to place throughout the country. We have great sympathy for the percentage of Acadians in Prince Edward Island whose mother tongue is French. In absolute numbers they are rather small because our total population is rather small. We have taken action, in the last year we have, as I mentioned in my brief, passed legislation to assure certain rights to people whose first language is French.

I might add, however, that that is nothing new, it just puts it in legislation, the practice has long been in use even before Confederation, admittedly with varying degrees of extent, perhaps, in some situations their position is better than others. For example, in fairly recent years our school system in Prince Edward Island has been consolidated and this resulted in less opportunity for people to be educated in their language as compared to the situation when schools were small, very small, and there were pockets of people whose mother tongue is French. They were a smaller system, they were more easily accommodated.

However, I also wanted to say that both languages are used in our legislature but there would be practical problems for us with regard to some things. We as a government are trying to take some action to provide services in both languages where this is appropriate, and so on. But there is a danger in situations of this sort, of imposing a very heavy load on taxpayers for a very small benefit. When I say that, I do not want to leave the impression that rights should be measured in terms of economics. They should not be, any more than our judicial system should be. However, I feel that prominent in the realms where language rights are strictly at the present time in provincial jurisdiction, that the provinces should be

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trusted to do what they should do under those circumstances. I think we have to have faith in ourselves as Canadians. I see the honourable member shaking his head. Maybe his faith is shattered. I do not know with regard to that, but mine is not.

The Joint Chairman (Mr. Joyal): Thank you.Thank you, Mr. Lapierre.

1 would like to recognize now the honourable James McGrath.

Mr. McGrath: Premier MacLean, I was touched by several things in your brief. One thing which struck me was the sentence, referring to the unilateral action of the government.

The legality of this action will be addressed by the courts; the wisdom of it should be decided by this committee.

1 say to you, Mr. Premier, with great respect, that we must be seized not only with the wisdom of what the government proposes, but also with the legality of it. It is in that direction that I want to address myself to you as a distinguished Canadian and Premier of one of our provinces, a parliamentarian of national repute and of longstanding.

The British North America Act, in its opening paragraphs, states that Canada will have a constitution similar in principle to that of the United Kingdom.

Now, as I listened to your presentation tonight, although you did not spell it out, you came close to saying something which many of us hold, and that is that Canada’s constitution is more than the British North America Act.

The British North America Act was the agreement that brought the founding provinces together. Canada’s constitution has evolved and now consists, not only of the British North America Act, but of conventions which have evolved during the 113 years of Confederation.

In many respects, the British North America Act saying that Canada’s constitution shall be based on that of the United Kingdom has not changed that much, because the United Kingdom’s constitution is, by and large, an unwritten constitution and many parts of our constitution are unwritten, in that there are conventions, traditions, customs, protocol.

For example, I can list three conventions which you will not find in the British North America Act with which you are familiar as Premier and as a member of Parliament—the one that the Parliament of the United Kingdom has the power to enact laws for Canada; but convention stipulates that the Parliament will not do so, except—and they will only do so— at the request and with the consent of Canada. Legally, they have the authority to do so, but by convention they will only do so at the request of Canada.

Another convention would be seen in the fact of the British North America Act and many Canadian statutes confer extensive powers on the Governor General in Council but convention stipulates that the Governor General execute those powers only in accordance with the advice of the Cabinet, and further, the British North America Act makes the Queen or the Governor General an essential party to all federal legislation

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and expressly confers upon the Queen, the Governor General, the power to withhold the Royal Assent from a bill which has been enacted by Parliament. But we know by convention, certainly since the early 1950s, that the Royal Assent will not be withheld. That is now, I believe, a convention of the Canadian constitution.

Professor Letterman, one of the expert witnesses whom we would like to have come before this Committee—and by a vote of this Committee we have decided, unfortunately, not to hear to expert witnesses—he holds that it is a convention, as I have indicated, that the British Parliament will not act on a request of the Parliament of Canada to change the constitution which would alter the balance of power without the consent of the provinces.

He holds that is a convention. Indeed, one of the few experts to appear before the Committee, Mr. Justice Clyne, held that if the government’s proposed constitutional changes were to be tested before a court in Canada, that the court would hold that they are in fact unconstitutional.

An hon. Member: He did not say that!

Mr. McGrath: The honourable member will have his chance. If he would only give me an opportunity to finish, I should be grateful. He did question the legality of what the government proposes.

I was interested tonight to hear that the Government of Prince Edward Island intends to make a submission to the Standing Committee of the United Kingdom Parliament and that you will in fact be sending a representative to appear before the Committee in support of your written submissions.

Will it be the position of the Government of Prince Edward Island, before that Committee of the British Parliament, that what the federal government proposes to do unilaterally changes the balance of power in Canada and, hence, violates one of the conventions of Canada’s constitution, and, accordingly, that it is not within the competence, given the convention, of the British Parliament to accede to the request of the Parliament of Canada?

Mr. MacLean: Mr. Chairman, it is the position of Prince Edward Island, and it will so argue, that established conventions concerning amendments to the British North America Act have in the past involved either specific or understood support of the Canadian provinces. P.E.I. contends that this is a well established precedent and one which should continue.

I agree with you that the constitution of this country includes not only the British North America Act, but also conventions, practices and understandings which have become universally accepted, and that just because something is not specifically covered in the law, for example, is not a reason to say that it does not exist.

If I might digress for a moment, this is one of the dangers in trying to enshrine everything that comes to mind in a constitution because it is almost impossible to anticipate and to make provision for all the possibilities which may occur in the future; and if the interpretation of what is meant is left

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entirely to the courts, you may have a situation where something may be legal according to the constitution, but not reasonable.

Mr. McGrath: 1 want to be very careful in the way 1 phrase my question, because I think it is important.

You state that it is the position of the Government of Prince Edward Island that it is a convention of Canada’s constitution that the Parliament of the United Kingdom cannot accede to a request of the Parliament of Canada which would alter or change the balance of power of the federal system in Canada without the advice and consent of the provinces of Canada.

If that is your position, is that the argument that your government will make to the Standing Committee of the British Parliament?

Mr. MacLean: Yes.

Mr. McGrath: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Mr. McGrath.

I would like to call now on Mr. Irwin.

Mr. Irwin: Thank you, Mr. Chairman.

Mr. Premier, it is indeed a privilege to have you here before this Committee. I quite agree with you that P.E.I. has a very historical and significant role in Confederation.

The few times I have been to your province, I have been to your legislature and I have seen the picture of the Fathers of Confederation, and though they may not have been there themselves and seen your room, nevertheless it makes me very proud of being a Canadian and being in that particular place.

You speak about the U.S. experience in numbers and possible unfairness to P.E.I.

I would like to draw your attention to Section 41, which would be the amending formula, and discussing it, even without going into the so-called Henderson amendment, I would like to get your impression as to what this really means in terms of power to P.E.I.

Assuming that Section 41 in its present state were implemented, it would require a majority in the four regions and a majority of Canadians to pass an amendment.

For instance, I am looking at the 1976 census; Manitoba with 4 per cent; Saskatchewan 4 per cent; Alberta with 8 per cent; and B.C. with 11 per cent of the population, could all vote in favour of amendment. Everybody—100 per cent; every man, woman and younster out there, every voter could vote.

If 100 per cent of these people voted in favour of the amendment, and then every voter from Quebec, which has 27 per cent of the population and every voter of Ontario which has 36 per cent of the population, decided that they would unanimously support the amendment, and if you were then to go over to Nova Scotia and there, with 4 per cent of the population, every voter there was in favour, it is still possible, with P.E.I., with half a per cent, and Newfoundland with 2.5 per cent and, say, New Brunswick with 3 per cent, if a

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majority voted against, to thwart the wishes of over 90 per cent of the wishes of the people of this country.

To me, that type of power to P.E.I. is not only historically correct, but it is much more generous than the American experience.

Mr. MacLean: I would like to respond to that, but I think I should give the honourable Mr. Driscoll an opportunity to comment on this one.

Mr. F. Driscoll (Minister of Education, Government of Prince Edward Island): Mr. Chairman, I think the question addresses a basic concept of federalism. It is our view that we ought to make up our minds whether in fact we are talking about a federal state or something else.

As we have said in our brief—and also this summer— federalism, with only a couple exceptions throughout the world, represents the people on the basis of population in one House and the partners, the constituent units, in this case the provinces, equally in another House. In that sense, federalism recognizes that population size, wealth, whatever measure you want to apply, is not the only thing that counts. Size, wealth and population will eventually count anyway, because in federalism, in any system, where the House is based upon representation of the population, if it comes to a contest of will between the two Houses will win, and that is probably as it should be.

But in the other chamber the principle of numbers is not really recognized. So to talk in terms of numbers and size when you talk about amending formulas or anything else, is not necessarily appropriate because there is another concept of federalism; there is a concept of federalism which, I think, we have to accept.

Mr. Irwin: Let me carry this one step further because you are the ones that analogized the American situation and I think it was raised that it should be addressed.

Now, Newfoundland, Prince Edward Island and New Brunswick have 6 per cent of the population; and if three per cent, less three, three persons in all the provinces, because it is only 50 per cent plus one, so say three per cent disagree, any amendment by referendum would fail. So it is possible under this formula that 97 per cent of the population could be in favour of an amendment, yet three per cent if they oppose it, less three could cause that amendment to fail. Is that not more significant than the American experience, in terms of numbers.

Mr. Driscoll: Well, the American formula of course requires, I am not sure at the moment, two thirds of the States and a certain percentage of the population. So I think it is a little difficult to answer the question directly whether that is more power or not.

In any case in any federal system the amending formula will have to recognize approval by a certain number of the provinces that are involved; and the numbers really do not count. I think we go back to our argument about the referendum, we would reject the notion of referendum really entirely because it tends to ignore the existence of the provinces in this state.

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Mr. Irwin: I have one last question Mr. Premier. I am looking at a quote from you of September 11, 1980, on the patriation and the amending formula, in which you suggest that the amending formula should be unanimous, that all of the provinces; well, you do not suggest it, you say it; the amending formula should have the unanimous approval of all the provinces

Now, since 1927 there have been 10 attempts to achieve patriation in the amending formula and two of them on provincial initiative in 1931 and 1968; there have been 21 meetings of First Ministers of the constitution; 43 meetings of Ministers; as well there have been a minimum of 17 meetings of officials to discuss patriation or whatever you want to call it, repatriation and amending formula. You have been at this for 30 years, and they started 23 years before you started. What in your opinion would make you think that there may be a change in the distant future? I am not even talking about the near future.

Mr. MacLean: Mr. Chairman, in response to that I would like to say that what I said was unanimity until, I do not have the actual quote before me, but I think you will agree with me that what 1 had in mind was repatriation, with unanimity as the temporary amending formula until some other formula was unanimously agreed to.

Now, I can tell you that there was almost complete, if not complete unanimity between the provinces on an amending formula, we would give some relief to situations of the type of which you projected, but 1 was thinking of a different kind of situation.

The problem is that when you try to evolve a formula of so many provinces and a certain percentage of each and so on; in almost every case you can come up with a theoretical possible situation which in my mind would be very unfortunate. I think it would be very unfortunate, for example, for Prince Edward Island, and it would be theoretically impossible in the terms of which you stated, to stymie, to forestall something that had general approval throughout the country.

Now the provinces recognize that and have tried to find a safety valve, if you like, for a situation where a minority would feel aggrieved that it was being imposed upon by everybody else. The suggestion was made that in a formula of that sort where you had so many provinces containing a certain percent of the population and so they were agreeable on a certain thing, that the provinces that disagreed would have the right for the amendment not to apply to them. It would be kind of an opting out situation. This was rejected by the federal government as being dangerous to the national interests, that it would make the country into a checkerboard, I think the expression was.

With all due respect I do not agree with that point of view. I think if we are to succeed as a country we have to have some more flexibility than that.

Older countries than ours that have evolved over a longer period of time recognize their history and make allowances for that sort of thing. If I can use perhaps the United Kingdom, we think it is a unitary state and it is technically a unitary

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state, but they have all kinds of accomodations and exceptions in the provinces and so on. They have provinces in the form of the Channel Islands and the Isle of Man and they have a different legal system in Scotland than the rest of the country. Innumerable accomodations that grew out of the history.

I think that although our history as a country is relatively short, that we should be prepared to be a little more flexible so that we do not have a situation where, to use Burke’s expression, the constitution is more than an exercise in arithmetic. I think we have to have good will and accomodation and common sense, if I can use the expression, in certain situations, which would not give Canadians a reason to feel terribly aggrieved over some things, no matter how small their numbers.

The Joint Chairman (Mr. Joyal): Thank you very much Mr. Irwin. I would like to recognize now the honourable Perrin Beatty.

Mr. Beatty: Thank you very much, Mr. Chairman. Mr. Premier I want to echo the comments made by my colleagues in welcoming you here. The brief which you presented to the Committee this evening was extremely helpful to us and I think it will be very useful in the work we have to conduct over the next few days.

You will be interested to know that in addition to yourself that as of tonight some 390 Canadians, individuals and groups have asked to appear before the Committee and unfortunately only a small per cent of those people will be able to have the opportunity that you have had this evening in coming. We are very fortunate that with the limited numbers that had been permitted that you were able to be here because you have been very constructive in your comments.

I want to follow up on some of the issues raised by Mr. McGrath, because one of the responsibilities of the Committee is to recommend to the House of Commons whether the joint address should go ahead in the first place. In your brief, as Mr. McGrath mentioned you suggested that the legality of the government’s action would be addressed by the courts but the wisdom of it should be decided by this Committee.

I want to ask you Mr. Premier, I believe that Prince Edward Island is one of the provinces which is taking the federal government to court, is that correct.

Mr. MacLean: We are intervening in the other action.

Mr. Beatty: Could I ask, have you had a legal opinion as to the status of amendments made in Westminster? In other words, if the British Government accedes to Mr. Trudeau’s request and makes substantive changes to the constitution, which could not constitutionally be made here in Canada, could the Canadian courts after the fact strike down those amendments? Have you had a legal opinion on that aspect?

Mr. MacLean: All I would say with regard to that, I do not want to anticipate court decisions and I would be on dangerous ground anyway because I am not a lawyer. I can say if we believed we did not have a case we probably would not be proceeding.

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Mr. Beatty: 1 think the important question though is the procedure being followed by the government here. Mr. MacLean, you mentioned earlier the “leak” of the Privy Council Office document which was made public at the time of the First Ministers’ Conference in September. Are you aware of the statement in that document that reads as follows:

There would be a strong strategic advantage in having a joint resolution passed, the U.K. legislation enacted before a Canadian court had occasion to pronounce on the validity of the measure and the procedure employed to achieve it. This would suggest desirability of the swift passage of the resolution and U.K. legislation.

Are you aware of that recommendation that was made by officials within the Privy Council Office in the Department of Justice, that the federal government should ask Westminster to change the Canadian constitution before the Canadian courts had a chance to rule on the legality and the propriety of doing so.

Mr. MacLean: Yes, I am aware of what was in that document. I will refrain from trying to prophesy what will happen, and 1 think we should separate the notion of something succeeding in the legal sense and whether it is a success or not it would seem to me that even if the action initiated by the federal government were to succeed in the legal sense, in that way 1 still think it would be very, very unfortunate and it would not be a success.

As I said in the First Ministers’ Conference, we have to be extremely careful as Canadians, as good Canadians, as loyal citizens, people who have the future of our country at heart, and all of us do I think; we have to be extremely careful that we do not set up situations where you are going to end up with winners and losers, because if you are going to have losers, you are not going to have a happy country.

Mr. Beatty: Yes, indeed. Mr. MacLean, can 1 ask you in terms of the procedures being followed here; if the government is determined, as it appears to be now, to go to Westminster unilaterally, as Mr. Trudeau indicated yesterday in the House of Commons, would it be your feeling that the federal government has an obligation to wait until the courts have had a chance to rule on the constitutionality of that action before asking the British Parliament to make those changes.

Mr. MacLean: I hold that view strongly, from every point of view that is reasonable. I do not question the motives of the federal government, I do not impute motives to them, yet if they have, and I hope they have the interests of the country at heart, surely they would wish to assure themselves that what they are doing is not only legal but that it is in the spirit of the law.

One of the unfortunate fall-outs of what has gone on is an attitude that is growing in the country that the federal government has become sort of zealots for a particular course of action, and think that zealots are dangerous; that whether the result of the zealot’s activity is for good or evil tends to be purely accidental.

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Mr. Beatty: One final question, sir. You are aware of the fact, no doubt, that at the time the predecessor Committee to this Committee, the Committee that studied Bill C-60, the previous attempts by Mr. Trudeau to legislate constitutional change; that as we studied that the Committee made the recommendation to the federal government that the federal government should itself initiate a reference to the Supreme Court to point out whether it had the constitutional jurisdiction to take the action it was proposing.

As you will be aware, the government agreed to the report of the Committee; they did in fact send that matter to the Supreme Court, and the Supreme Court ruled that the Department of Justice had been wrong in saying that the federal government had that legal authority.

What I would like to know is, in your opinion would it be useful, would it be constructive for this Committee to make a similar recommendation when we draft our report to the House of Commons. Do you feel it would be constructive for us to recommend Mr. Trudeau himself seek a reference to the Supreme Court to see once and for all whether what he is doing is legal and constitutional?

Mr. MacLean: Yes, I do. I think that the action that was taken by the previous Committee was wise. It had the result that we are all aware of. With a reference of that type with the intention of prejudging what the decision of the court would be; but I think as I have said previously that in the interests of the country at heart, as I am sure the government must have, its first obligation would be to assure itself and assure the country that the action it proposes to take is not only legal but within the spirit of the law.

Mr. Beatty: Thank you, Mr. Premier. Thank you Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you Mr. Beatty.

I would like to recognize the honourable Bryce Mackasey.

Mr. Mackasey: Thank you Mr. Chairman. Mr. MacLean, you know you are always welcome

Mr. MacLean: Thank you Mr. Mackasey and I will not waste too much time reminiscing about days in the House of Commons.

I want to say, I just have to address very gently some remarks to the point made by Mr. McMillan and that is the statement by one of our members of Parliament which I expressed and the opinion I gather is certainly one I do not share and I do not think any of the Liberals share.

I do not question his right to have an opinion, and I would not want to, for instance, tar the Opposition party with some of the statements which used to be made in the House of Commons by the odd member prior to the Official languages Act.

1 think we are above that, and 1 do not see those things implied or interjected because they can be misunderstood by the audience. But people actually believe this is the Liberal position, and I think all of us know that it is not.

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I want to say, I appreciate the document and 1 recognize the sincerity of every word in that document. There would be a radical change in you and in the people of your wonderful island if that were not so.

I have to question a little bit, you mentioned quite appropriately from Burke, the majority is not really the majority and then you moved into the fact that the provinces were overjoyed. But they were not either, you know. Look at Quebec, elected by 41 per cent of the people. Ontario, probably with the same percentage. You look at the other land where the President has just been elected with goodness knows, a very small percentage of the electorate, and I think that is all an academic argument.

The important point here is that there will be a period of two years; and I do not want to get into the courts because I do not want to predict the courts and 1 think you are very wise in not following that, legal opinions as you say, are not court decisions and there would not be any court action if there were not two opposing legal opinions. One always has to lose and we will just have to see what the courts say about the appropriateness of our action.

1 think it would be safe to say that most of us would have preferred to proceed by another manner; and that is by constitutional conference, by discussion. That is why 1 am rather pleased that the government of the day also hopes that that can happen and there is a provision in this proposal that makes it very clear that for a period of two years after the resolution I adopted, it cannot be amended by other than virtually, I think the present form, the unanimous consent of the provinces.

Now, if the goodwill that you feel is there and which I know you reflect, and it should not be beyond the realm of possibility for the provinces and the federal government in that two year period to break the impasse and come up with a suitable amending formula. I think the public wants the next conference in that 24 month period with urgency if only to avoid referendum. I wonder if he would like to comment on that.

Mr. MacLean: Mr. Chairman, I want to express my appreciation of the very kind words from my old friend and colleague. I have also, of course, from long parliamentary experience I know that this may be the preliminary to something unpleasant.

With regard to the first question, the specific question, I think the honourable member will agree with me that trust is terribly important. Trust that everyone is negotiating in good faith, so to speak.

Now there is one problem that the provinces have, at least some of the provinces and some people, is that with the proposal of the two year limit and so on, what would be the situation and this is what concerns me. Where all ten provinces agree, perhaps enthusiastically or with varying degrees of enthusiasm for an amending formula and the federal government does not. In effect, the federal government has a veto and can thereby bring on the referendum situation.

Mr. Mackasey: I think Mr. Premier, that is a valid assumption, that is a possibility that the ten premiers in 24 months

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could get together with the federal government and could come up with a formula that the federal government could not accept. 1 would like to presume the opposite, I do not think the government at the present moment is very sympathetic to a formula that would give all provinces, individual provinces regardless of size—and that is not an important point—the numbers really reflect population which happens to be a problem.

I don’t think any of us want to see a situation where the amending formula adopted by ten premiers in the next 24 months is totally inflexible, the ability, even though you have that formula to negate any possible constitutional changes.

I am also drawing on an extreme situation.

1 am also drawing an extreme situation, but I do think if such a situation arose where 10 provincial Premiers agreed to a formula, that the Canadian public would look pretty damn angrily at a federal government that would disagree with that formula just for the sake of disagreeing or for being petty or for reflecting some very parochial regional point of view. I cannot visualize that happening.

Now, maybe I am still naive, maybe I am still a great believer in the power of persuasion and maybe I am wrong.

Mr. MacLean: Well, the difficulty with that situation, Mr. Chairman, is that the provinces are fresh from the experience of having agreed, all 10 of us, on an amending formula which was rejected by the federal government. I do not think I need say more at the moment.

Mr. Mackasey: I will not push it other than say I would have rejected it also. I think any formula that provides opting in and opting out is bound to Balkanize a country and set up the checkerboard. We are not going to debate that, that is a legitimate point of view which I am entitled to.

1 want to draw your attention to Section 50, only because I am sure you are aware of it but again the audience may be left with an impression through a referendum we can do anything. I think Section 50 does list prohibitions, areas that cannot be touched by a referendum, including the protection of the provinces and their numerical rights in the House of Commons. 1 think it is Section 50(e), which Senator Austin frankly drew to my attention because he is much wiser in constitution matters, being a Senator, than a lowly backbencher in the House of Commons. If the wording is defective then, for goodness sake, suggest to us some improvement, but certainly the spirit of Section 50 is to make it clear that some of those scenarios that we have been listening to, that somehow a Machiavellian federal government is going to use a referendum to eliminate a province, large or small, or change its boundaries, 1 think the Section 50 provides assurance, or should, and if it does not, for goodness sake, tell us how to improve it.

Mr. MacLean: My understanding of the resolution is that they can do it by the process in Part V, in Section 41, and I might add in comment while the honourable member is looking up the reference, that I do not put our position forward, what I have said tonight—I guess any of it has absolutes. I think that there has to be room flexibility, room for compro-

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mise, and we as a province do not have that problem of complete lack of flexibility.

Now, mind you, there might be something that we felt extremely strongly about and that my feeling, and I do not want to belabour the point, that the opting out proposal, if I can call it that, provides a safety valve to relieve the fear of a situation where some small group or some minority that felt very strongly about something would have some form of redress.

The Joint Chairman (Mr. Joyal): That will be really your last question, Mr. Mackasey. It is getting late and we are almost abusing our distinguished guest.

Mr. Mackasey: I just want to make the point that when I refer to Section 50 I am talking about the referendum. Finally, I just want to say to you on your closing remarks that where we get into entrenching, it is the minorities that are afraid of the majorities using the opting out and not the opposite. Virtually everybody has come here from minority groups and said: for goodness sake, entrench human rights in the constitution.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Mackasey.

[Translation]

Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

I wish first of all to point out that the French language does not distinguish between Premier and Prime Minister. The English language does.

I am glad that our language does not make this distinction as it more truly reflects a federal system wherein all Premiers are equal.

This being said, Mr. Prime Minister, I must express my strong reservations regarding page one of your brief where you say that it is an honour and a privilege for you to appear before this Committee. The honour and the privilege is for us, as our Chairman pointed out, to me you are a guest and not a witness who has come to share with us his experience of the federal-provincial discussions of last summer.

I have only one question to ask. Coming at the end of the list as I do, practically all technical questions have already been asked, since committees such as ours have a tendency to become technocratic.

I would like to ask a question relating to my interpretation of the general meaning of your brief

Do I understand correctly that you are recommending that a new federal-provincial conference be called, before patriating

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the constitution, in order to get us out of the deadlock that the present resolution of the federal government is creating for those of us who are in favor of a true federalism in Canada?

[Text]

Mr. MacLean: Mr. Chairman, I agree with the sentiment expressed. I do think that confrontation is destructive in the sense of taking hard decisions and insisting on any group, no matter how powerful they are, insisting that something be done in their way regardless of what anyone else thinks. I think we should use every means possible to find agreement, a measure of agreement. We should not have unrealistic expectations of the number of things we should agree with. We make progress step by step.

I would welcome the suggestion that a further conference be held, for example, before this was proceeded with or, alternatively, I would not object to simple patriation with unanimity as an amending formula, with the conference taking place after simple repatriation.

[Translation]

Senator Tremblay: Could I ask a supplementary question, Mr. Premier?

If that conference were to deal with only two items, that is to say patriation and an amending formula such as the one that was agreed to by the 10 provinces, as you mentioned in your brief, do you think from your experience as Premier that there would be a good chance to reach a consensus on these two items and do you think that this would be preferable to simple patriation without an amending formula?

[Text]

Mr. MacLean: I would welcome such a development. I would strongly support simple patriation with unanimity, with an amending formula on a temporary basis until a new amending formula could be unanimously agreed on.

An hon. Member: That is what we had for two years.

Mr. MacLean: Not simple patriation.

[Translation]

Senator Tremblay: Thank you very much, Mr. Premier.

The Joint Chairman (Mr. Joyal): Thank you, senator Tremblay.

[Text] I still have on my list the name of Mr. Hawkes, if you want to proceed. I would remind you of the words that I had for the honourable Bryce Mackasey, which is taking into consideration the indulgence of our guest and of course your co-operation.

Mr. Hawkes: Thank you, Mr. Chairman and thank you, Mr. Premier, I know it is late.

I am from the Province of Alberta and my compliment to you is of the following form, that I think you expressed in your brief the vision of Canada which we hold as the people of that province and you do it eloquently and with force, and I think the witnesses we had the other night that expressed their

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polling data that 90 per cent of the people in Western Canada want to belong to Canada, when people answer that question in that way, it is the vision that you present to us in your brief, that is their vision of Canada and that is what they want to belong to.

I think the criticisms which you have about the process are criticisms which give rise to the feeling of separatism in our region and the dangers which you identify are of that kind and growing daily.

In terms of my question, Mr. Premier, I sat in my living room seven weeks ago and saw the constitutional act 1980 printed in the Calgary Herald. I was alone and therefore was not influenced by contact with anyone else, but my conclusion was that the Government of Canada had laid a document before the Parliament of Canada that was totally antagonistic to what I believe to be important in a constitution, that in fact what the document attempted to do was enshrine in constitutional form what I think of in my own mind as the tyranny of the majority. 1 think the witnesses as they have approached the Charter of Rights in their criticism of Section 1 and the Civil Liberties Group in particular, without using that kind of language, have essentially said that that is the principle that operates in terms of the Charter.

I think that principle is even more clearly expressed in the amending part of the resolution which is before us. We have a system in Canada in which it is possible to form a government in the House of Commons with representatives from two provinces alone, and then we take that and in the constitution of Canada we seek, using that majority gained primarily in that way, we seek to enshrine the principle that for future constitutional amendments those same two provinces shall have a veto.

Now, my question to you relates to something that has been referred to frequently in the House of Commons and that is the existence of a deadlock and the excuse for a referendum provision is around the use of that word “deadlock”. People keep saying it is there to break a deadlock. As someone who attended and participated fully in the meetings of 11 governments this summer, when we look at that principle of deadlock it implies that there are some people on one side of an issue and some people on another, and I am wondering, Mr. Premier, if you could tell me whether it is the minority provinces, the eight smaller provinces of Canada, that quite often found themselves on one side of an issue collectively, in total or in the majority, and it was in fact the stronger parts of our federation, the federal government or the stronger provinces that were on the other side? Do we have a kind of consensus amongst the smaller provinces of Canada of the kind of constitutional revision which they feel they require to protect the rights of their citizens over time?

Mr. MacLean: Now, this is a large question. I would like to talk about it for some time but I do not want to impose upon the Committee except to be very brief and say that I think it is terribly important that no one proceeds on a course which is repugnant to provinces that are minorities, or any minorities as far as that is concerned.

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Now, the question of deadlock, that you have to have some way to resolve a deadlock, I think is one that arises because of the notion of the winners and losers, if you like. My view is that anything that is a potential deadlock, for example if you required at least a two thirds majority, either in legislatures or in a referendum, if one were to be used before something would be agreed upon, the possibility of a deadlock would be minimal or nonexistent. I think that anything that is very repugnant, having said that, to even a relatively small percentage, to one province, for example, there should be some relief for that province from having that imposed upon them

Mr. Hawkes: One supplementary, Mr. Chairman.

Would you say most premiers share that view?

Mr. MacLean: I do not presume to speak for other Premiers; but with regard to one of your other questions, I must say that there was probably every combination of agreement and dissenters, if I may use that term, during discussions.

But there was also a great deal of willingness to compromise and to adjust positions.

Although I did not think of it as offensive, maybe ther is a tendancy for pre-Confederation Canada to think that it is still what Canada is, and that the minority provinces are appurtenances or some kind of acquisitions that pre-Confederation Canada acquired.

I think, with the wisdom of hindsight, the Fathers of Confederation goofed by calling the new country Canada. They should have called it something else so that it did not have any built-in bias.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes. Well, I have no more speakers on my list. Mr. Austin.

Senator Austin: On a matter of procedure—I have mentioned this to both Mr. Nystrom and by way of a note to Mr. McGrath.

Mr. McGrath: Mr. Chairman, I have a point of order.

The Joint Chairman (Mr. Joyal): I was informed by Mr. McGrath that he had a point of order on the statement made by one of our colleagues, and before we wind up our discussions with our distinguished guests, I would allow the point of order of the honourable James McGrath.

Mr. McGrath: Thank you very much, Mr. Chairman. I will try not to transgress on your infinite patience, but it is important that the record be set straight, because while I was paraphrasing Mr. Justice Clyne tonight in the course of my questioning of Premier MacLean, Mr. Lapierre interjected that he did not say that, when I was referring to Mr. Justice Clyne’s statement on the constitutionality or legality of the government’s proposals before us and their ability to stand the test of the court.

1 would like to quote from the record, Issue No. 12—and this is a question for Mr. Beatty for Mr. Justice Clyne, as follows:

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1 would like to ask you, are you satisfied that the proposal that Mr. Trudeau has made for unilateral amendment and patriation of the …

He says “economy”, but that is obviously a mistake or a misquote, but 1 will continue:

… is both legal and constitutional?

This is the unedited transcript.

I would like to read Mr. Justice Clyne’s reply:

Well, I do not want to commit contempt of court when the subject is now before the courts.

My view is that a convention has been established whereby consent of the provinces which are affected is required. So, therefore, if this were an Act which was before you today, I think it would be declared unconstitutional.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath. The correction is noted.

Mr. Lapierre: On the same point of order.

The Joint Chairman (Mr. Joyal): Mr. Lapierre, on the same point of order.

[Translation]

Mr. Lapierre, on the same point of order.

Mr. Lapierre: I would just like to answer to Mr. McGrath that Justice Clyne certainly did not want to make any mistakes and prejudge the decision of the court. As you said, he answered that if this were an Act which was before you today but what is before us is not an Act, it is a proposed resolution.

There is a major distinction here.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Lapierre.

Mrs. Campbell, on another point of order.

Thank you, Mr. Lapierre. Mrs. Campbell.

[Text]

Miss Campbell: It sounded like we were going to get into a debate. As a point of order is coming up, I am wondering why the witnesses were not asked to leave.

Mr. McGrath: The quotation was read into the record because my colleague had left some doubt as to what Mr. Justice Clyne did in fact say in relation to what I had alleged he had said.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath. Senator Austin.

Senator Austin: I would certainly be happy if the witnesses wanted to withdraw and to have some time beyond listening to our procedural discussions, if that were the wish of the Committee.

The Joint Chairman (Mr. Joyal): Thank you, Senator Austin.

The honourable Angus MacLean, and the honourable Fred Driscoll, Mr. Dan MacCormac, it is my privilege and honour, on behalf of all honourable members of this Committee, to thank you wholeheartedly, and I would like to reassure you that my colleague. Senator Hays and myself, and speaking on behalf of all Liberal members attending this committee, take very strong exception to the statement as was reported by Mr. McLellan, quoting from a letter from Mr. Vaudreuil…

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I would like to reassure you that during our entire proceedings, it has been always the permanent intention to try to get from the Minister of Justice all the information needed to make sure that the status of provinces, whatever their size or importance, the population or economy or culture, be protected in the document.

You have said very clearly that justice is justice. I think the first partner of Confederation should not be the last one when the new Confederation document is redrafted.

If, as you have said, we ought to act together as a team and together, it would be because that very first principle that justice is justice is entrenched in our document.

Thank you very much on behalf of all of us.

Mr. MacLean: Mr. Chairman, if 1 may presume on the Committee’s time for just a moment, I want to say sincerely that it has been a great pleasure for me and my colleagues to be here tonight in an attempt to be of constructive help to the Committee in the very awesome decision it has to make with regard to the future of our country.

I want to say that for me, personally, it has been a special pleasure to be back in old familiar haunts, and you may feel completely at home by working until 11:20 p.m.

The Joint Chairman (Mr. Joyal): Thank you very much.

Senator Austin.

Senator Austin: Thank you, Mr. Chairman. Mr. Chairman, I gave a notice to Mr. McGrath and Mr. Nystrom that I would like to raise, by way of suggestion, a question relating to the hearing of witnesses next week. I am not proposing a motion, but perhaps tomorrow morning we could, after considering the matter overnight come to a conclusion by arrangement of the Subcommittee to the steering committee, Messrs. Epp, Nystrom and myself with respect to, at least one or two days at the beginning of next week.

We are particularly anxious to give word to the National Indian Brotherhood, to the Inuit Tapirisat, to the Native Council of Canada, with respect to the timing of their appointments.

My suggestion which, as I say, I propose not to debate tonight, but to come to tomorrow, is to make arrangements to hear those three native umbrella groups during the day on Monday. I would hope that members of this Committee would give assent to sitting Monday morning, on Monday afternoon and Monday evening to allow those umbrella organizations to be heard by us as soon as possible. Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Senator Austin.

I will recognize you, Mr. Epp.

Mr. Nystrom, there is a very technical element. I see on the list, Mr. Epp that you are no longer a member for technical reasons.

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Mr. Nystrom: I can solve that very easily Mr. Chairman. I move that Mr. Epp be heard.

An hon. Member: I second that, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Mr. Nystrom, I will hear Mr. Epp, if you do not object.

Mr. Nystrom: Mr. Chairman, out of courtesy, I think you should hear Mr. Epp first. I am very accommodating.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom. I am most grateful to you.

Mr. Nystrom: Socialists are always accommodating. We like to appear and co-operate.

The Joint Chairman (Mr. Joyal): The honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman. I want to thank Mr. Nystrom for his co-operation in this matter.

Mr. Chairman, I do not intend to be quite as brief as Senator Austin. I would suggest to members of the Committee to just sit back and relax as they get it.

Mr. Chairman, I think it is time that we put on the record where this Committee has been and the situation in which it now finds itself.

I, and other members of the opposition, have placed motions before this Committee in an attempt to organize the work of the Committee. For those efforts we have been described by the Liberal Party as mischievious: we have been described as lacking in faith; and we have had certain motives imputed, that the reason opposition members could not form a quorum was because we might boycott the sittings of the Committee.

Time after time, we have said that was not our intention or purpose; yet, that has been the motivation that has dominated the Subcommittee and the steering Committee proceedings.

Now, Mr. Chairman, Senator Austin now wants us to reconsider; he wants us to reconsider, first of all, because he has a self-inflicted wound—a self-inflicted wound which he brought upon himself on Tuesday night. In the glare of publicity, he decided to shoot himself in the foot and now he wants us to bind the wound.

Additionally, Mr. Chairman, he now wants us to schedule witnesses. After the events of Tuesday, we are bound by a vote, and the first step, obviously, will have to be the reversal of that vote. So, it is important to review the events that have led us to this point.

What happened on Tuesday, Mr. Chairman? On Tuesday night last—and I have before me the Minutes of Proceedings dated Tuesday, November 25, 1980, Issue Number 12, in which, on page 3 is the record of that evening.

First of all, I move that the following witnesses, in addition to others whom I suggested to appear at a later date, be scheduled to appear before this Committee.

There then appeared a list of 14 names of eminent Canadians, constitutional experts, jurists, which I put forward as expert witnesses that should be heard.

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In the spirit of co-operation, Mr. Nystrom moved that, if there was opposition—and there was immediate opposition from the Liberal side—to those 14 or anyone, that he was willing if I would withdraw my motion—he put forward a motion:

That this Committee instruct the Subcommittee on Agenda to prepare a list of at least 10 constitutional experts to appear as witnesses before this Committee.

There was an immediate reaction from the Liberals again on the number 10. So, by agreement again, Mr. Nystrom withdrew the designation of at least 10. So the motion in its final form read:

That this Committee instruct the Subcommittee on Agenda to prepare a list of constitutional experts to appear as witnesses before this Committee.

Now, Mr. Chairman, to a man and woman, the Liberals voted against that motion. They did not vote against 14; they did not vote against specific members; they did not vote against 10. They voted against all: every expert witness is what they voted against on Tuesday last!

Some hon. Members: Shame!

Mr. Epp: I could read the list of those honourable members who voted against, but it is 11:30 and I do not think I should do that.

Mr. Epp: I do not think I should do that. But I think they know, to their own chagrin who they are.

An hon. Member: Was Senator Austin among them.

Some hon. Members: Yes, he was.

Mr. Epp: Now, Mr. Chairman, one has to ask the question why they voted against it. Was it because this Committee as part of its reference, is to advise the House of Commons on the procedure on the legality of the question before it? Was it because expert witnesses had the ability to give us that advice and they did not want to hear that advice?

Now, Mr. Chairman, what has gone on since then? As you know, Mr. Chairman, the Subcommittee on Agenda formed a Subcommittee and for our own colloquial purposes we have called it the Traffic Committee. That Committee consisted of Senator Austin, Mr. Nystrom and myself.

The purpose of that Committee was to look at the list of witnesses—and Mr. Chairman I have that list of witnesses—a compendium of now 390 groups and individuals who want to be heard, and additionally 355 written briefs that have now been received; and I suggest that very few, if any, members have had a chance even to read a small portion of those 355 briefs and to look at the recommendation and wisdom in those briefs.

But, Mr. Chairman, that is what is before us. So this Committee was to make recommendations to the Committee on the agenda as to witnesses.

So, Mr. Chairman—this is issue 12 again—Senator Austin said, and I quote again:

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So that the question of whether or not those witnesses should appear is one in which I support Mr. Mackasey. The questions should be read to the steering committee.

Now it never was. What has happened? We have received signals, not through official channels in the last 24 hours, but we have received signals, that Senator Austin was pulled off that Traffic Committee and that Committee does not function; that Committee has not been sitting. That Committee has not had any operation in the last 24 hours. In fact, Mr. Chairman, when I asked, neither Senator Austin nor any other Liberal had been placed in charge. Consequently, there has been no official consultation in the last 24 hours.

Mr. Chairman, that Subcommittee, that Traffic Committee, was given a specific task by the Subcommittee on Agenda, to look at witnesses and to recommend witnesses to be heard. Unilaterally, it has been decided that that Committee, at least after this point, should not function, should not sit. I could use certain adjectives in relation to that kind of action, but despite every temptation I will refrain from doing so.

Now, what has been the result of this action? Well, let us take a look. All members of the Committee, just to take one example, have received a letter from the National Indian Brotherhood dated November 26, 1980, and which was received in my office on November 27, 1980. It is addressed to everyone of the members of the Joint Committee, and it is sent by the National Indian Brotherhood and signed by their President, Mr. Del Riley.

I think it is important to read what is in that letter. The reason I will take the time is that the Subcommittee at the midnight hour—and we are getting back to the midnight hour—members on that Subcommittee will recall that we discussed the matter of members of the National Indian Brotherhood being scheduled; they will recall that we talked about the Native Council of Canada being heard, and the Inuit Tapirisat to be heard, they have not been scheduled. If you take a look at the list they do not appear on that list.

Now, what is in the letter, Mr. Chairman? I will start with the third paragraph and I quote Mr. Riley:

It has now come to our attention that, unless your Committee seeks and receives an extension of your mandate, you will not allow us to appear before you.

Skipping the next paragraph, he continued:

The Assembly of First Nations of which every elected chief in Canada is a member will be meeting in Ottawa from Sunday, November 30 to Tuesday, December 2, 1980. I should not like to stand before the assembled Chiefs of Canada and have to tell them that the Parliament of Canada has refused to hear the concerns of our people on the Constitution.

We also understand that at least nine of our member organizations have applied to be heard by your Committee. Each of these organizations represents at least one treaty area, and usually several traditional Indian nations.

We insist that every representative organization of the Indian peoples be given an opportunity to appear before

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the Committee and that you will allow adequate time to consider the concerns which they present to you.

We must regard the failure to hear from our member organizations as no less serious than your refusal to hear from us. Each one of our member organizations comes to you with a historical perspective on this country which is unique and different.

To say to anyone of them that the area or the people whom they represent are not important to the patriation process is to reaffirm the most hostile attitudes to Indian people which we had hoped had been abandoned when it was no longer a criminal offence to press Indian claims.

In all our many appearances before parliamentary Committees over the years we have invariably had the courtesy of sufficient notice from the Committees to submit our written proposal in good time for translation and to ensure that the members of the Committee were familiar with our position. It has always been our aim to make good use of our time and that of the Committees before whom we have appeared. The complete lack of reply to this date suggests to us that both courtesy and propriety have been abandoned for expediency by your Committee.

We hope that we are wrong and we look forward to being speedily assured that all groups will have a chance to appear before you.

Now, Mr. Chairman, what does Senator Austin propose. He proposes that we hear the National Indian Brotherhood. He does not propose that we hear the Yukon Indians which I had requested. He does not propose that we hear the other nine organizations. He does not propose that we hear native rights for Indian women.

So, Mr. Chairman, I say to you that if Senator Austin is now dealing in good faith, I suggest to him with all respect that he now be willing to rescind the motion that he and his colleagues defeated on Tuesday last. Also that they rescind the attitude, the position that only the National Indian Brotherhood and the national organization be heard, because that is the position that he put forward to us tonight again. Mr. Chairman, that is simply not adequate. We have also said that we wanted to hear the Native Council of Canada. They made a specific request and Senator Austin said he was willing to hear them. The Native Council of Canada, while it is an umbrella organization, other Métis organizations will they have the opportunity to be heard. Once the NCC has been heard will that then be interpreted by the Liberal members that the NCC has been sufficiently heard.

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Mr. Chairman, Senator Austin wants us to bail him out, and being the kind of gentleman that 1 am and wanting to help Mr. Austin, I will. So the suggestion that he has made that we think about it overnight, we will do exactly that and come back with a decision tomorrow. I say to you, Mr. Chairman, that it is time, high time that the Liberal members start approaching the Committee work, not from an arbitrary deadline of December 9; not from a point of view of everything has to be rushed with indecent haste. It is not only the point of the members of this Committee that they can do the work properly, but that Canadians can be heard; that was a promise given to this Committee that Canadians would be heard and I suggest to you, Mr. Chairman, that should be our mandate and I hope that the Liberals now that they have got themselves into this mire, that they will see the wisdom of changing their ways.

The Joint Chairman (Mr. Joyal): Mr. Nystrom.

Mr. Nystrom: Thank you very much, Mr. Chairman. Senator Austin has made a proposal to us tonight, and being the accommodating person that I am, I told him privately that I wanted to have a chance to think about it this evening and tomorrow morning come back with a response at that time.

To hear people of this country and some important organizations, I am willing and my party is willing to be as flexible as possible, because it is very important that people be heard.

I wanted to mention three things to the Committee tonight but I think the most important thing for our consideration and Mr. Austin’s proposal is our witnesses. I think we have to consult the National Indian Brotherhood, the Inuit of Canada, and the National Native Council of this country to see whether or not it would be appropriate for them, or convenient for them to come before us a day earlier.

We had agreed in the Subcommittee on Agenda, to my recollection, that we should invite those three national organizations, and I believe Mr. Epp has said the same thing. I was personally quite surprised when an official invitation did not go out to them because my recollection was we had made that decision and I think Mr. Epp feels the same way. Apparently an official invitation has not gone out to them, and I am surprised by that and I am quite shocked by that. I understand that they have all been notified that they might be coming in at certain times, such as Monday evening and Tuesday, but that has been very tentative. I think they have been planning to come during those time phases on the basis of the instructions they got, however tentative they are.

I want to stress the point that we must consult with organizations out of courtesy to our witnesses. We had, for example, here a few days ago a national Polish organization, I believe they complained they had very short notice. We have had other witnesses that have received very short notice. The Civil Liberties did not have time to write a brief. I want to just refer to one of those organizations because I have not had time to consult them all, and that is the National Indian Brotherhood, Mr. Chairman.

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They are sitting on Sunday at an All Chiefs conference to consider the constitution of this country and that conference is to go on Sunday and Monday. My understanding is that the important part of their agenda concerning the constitution takes place on Monday. I believe that that organization probably feels it has to be mandated from the Chiefs before they can come here and speak to us. So to invite them to come here on Monday might be very premature and it might not be very courteous at all for us. So I want to stress, Mr. Chairman, that we had better check with them first to make sure that this is what they want to do. If they want to do it, then I think we should try to accommodate them; but if they do not want to do it, under no circumstances do I want to put pressure on them to come before us at a time that is inappropriate for them and a time at which they cannot speak on behalf of their organization.

1 want to say the same thing about the Inuit of this country and the National Native Council. I have not had a chance to check with them, but I will check with them as well and make sure that we accommodate them out of courtesy to our witnesses.

The second point I wanted to make is that the Indian organizations and the native organizations have a right to be heard, they must be heard. They are the original people of this country and under no circumstances can we have any constitutional revision like we are contemplating today without hearing them and hearing them thoroughly. I think that is an absolute must, and I will do everything in my power to make sure that they come because they must come, and I think we all must feel that way.

The last point I wanted to make is, from what I understand, or my memory tells me we have agreed as a threesome to invite those organizations. I also thought that maybe in principle that we should also be inviting the Yukon Indians because that is a special case. They are north of the sixtieth and they do not have treaties and they are in the midst of negotiations with the federal government.

I also understand from my recollection that we also agreed in principle to invite the Native Women’s Association of Canada. I think we should be putting them on our list now, too, unless Mr. Austin has a different recollection of our meeting a week ago Monday, which was November 17.

My closing comment is that I do not want to say that these are the only five organizations of original peoples we ought to hear. I think there are many others as well, but I think we have reached agreement on the first three, certainly, and if I remember correctly on the second two, and I think there are others that we should hear. Many of their cases are different, and I think of the Nishke, the Nishke tribal council in British Columbia and, you know, again they have a different case; and many of the other Indians and native organizations have special cases as well.

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So, Mr. Chairman, 1 think we should reconsider the points I have raised, consult the potential witnesses and then make a decision tomorrow after we have gone through the process of consulting with them.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. Senator Austin.

Senator Austin: First of all, responding to Mr. Nystrom, I would pretty well adopt, by reference, what he has said.

The main thrust of my suggestion tonight was to see whether or not we could make room for more witnesses by sitting on Monday and to advance the sitting of the native associations, the three J mentioned to Monday. Of course, if they are not available to sit on Monday, we will have to respond in another way.

I might say that 1 have no objection, and 1 indicated my interest from the outset in hearing the Council for the Yukon Indians and I have spoken to representatives of the Council and also the Native Women’s Association of Canada. So that we are anxious to schedule those with all dispatch.

I repeat the prime thrust of my comment this evening is to see whether this Committee is prepared to sit Monday and hear those witnesses on Monday if they are available.

With respect to Mr. Epp, he is a good debater and he made many colourful statements. I do not wish to involve myself in a long repetition of what he said, if I am allowed to say that I got nothing from what he said, that by my silence, we might go on and see whether we can adopt the last thing that Mr. Epp said, that is to consider it over night, which was my suggestion and come back tomorrow.

I would like to say, on one aspect of procedure that the so-called traffic Committee has continued, I was not aware that it had not. I did speak to Mr. Nystrom tonight thinking I had the authority to do so from my group and I did send a note across. Mr. Epp was not in the Committee chamber when I was seeking to have a discussion, for which of course I attribute no blame or problem. I would like simply to say let us cool it until 9:30 a.m. and if the so-called Traffic Committee could meet at 9:00 a.m. perhaps we could sort this out without undue inconvenience to the Canadian Bar Association tomorrow morning at 9:30 a.m.

The Joint Chairman (Mr. Joyal): Thank you, Senator Austin. Senator Tremblay.

[Translation]

The Joint Chairman (Mr. Joyal): Senator Tremblay.

Senator Tremblay: I would like to suggest to Senator Austin and to his colleagues from the traffic committee … how do you translate the expression that was used before?

The Joint Chairman (Mr. Joyal): I could propose to you to say the bottleneck committee but, anyway… let us keep the term “ “traffic”

Senator Tremblay: So let us mention only “ “the members of the Committee” and let us call them “ “our traffic agents”.

Let us propose to our agents to consider the whole traffic and not to ignore… I made a rapid calculation as I had not received the 27th of November issue of the hearing applica-

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lions. So I think our traffic agents should take into consideration the traffic coming from the Province of Quebec and which is made up of several groups. I went through half of that document page by page and identified more than half a dozen and since they are groups, their testimonies might be more representative in the whole evidence our committee has received.

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

Any other comments on that subject?

The Honourable Bryce Mackasey.

[Text]

Mr. Mackasey: Mr. Chairman, you have to decide whether it is relevant, I would like to think it is and I could rate it I suppose as a separate point of privilege, almost. That is, with due respect to Mr. Epp, I do not particularly appreciate being lectured to by Mr. Epp or anyone else as to how I should conduct myself in front of Committees or to impute motives as to how I vote, or how I should vote.

I say that very gently.

appreciate this debate for one reason; it is at the proper time and the appropriate time after a witness has left and you are not waiting around here and this is an important point. Debates are part of our parliamentary provision and must be held. I have been consistent in Committee in voting against matters which I have felt should not be placed before this Committee, but should apropriately be referred to from the very outside to the steering committee in respect to the other witnesses that are waiting and conscious of the time factor.

Working as we are under restrictions imposed by the House of Commons, which I still think that imposition is still there to December 8 or 9, or whatever date it might be. The other night when Mr. Epp raised the point of constitutional witnesses I said from the outset, I do not want to read it all, but of course I can, I said very categorically at the outset that Mr. Epp may be surprised if I shared his view that we should hear from some experts on the subject. Then I said that perhaps we should refer this immediately to the steering committee, to avoid a vote, to avoid a debate that went on for an hour and a half, holding up constitutional experts, and a witnesses of a calibre and category and prestige that we did.

I did say to him as a matter of fact in qualifying that statement, that the steering committee take into consideration the date of December 8 as to the appropriateness of bringing in these type of witnesses, and how many, et cetera.

Really, what I was saying in effect and Mr. McGrath agreed with me, and I frankly felt when Mr. McGrath finished his remarks, that in effect that is exactly what we would have done, pass it on to the steering committee with my observations and those of the others and get on with the witnesses. Instead of that, we went on and on for another hour of debating.

The fundamental reason that I voted against that the other evening was because I objected, again I may be wrong, to these type of procedural hassles that hold up the more important aspect of our work and that is hearing witnesses. I cannot raise that objection tonight, but I must make the point that that was

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the fundamental reason I voted as I did vote. I resent Mr. Epp inferring contrary for other reasons, and I hate being linked in with a Committee, or linked in the party. I have my own views, and I express them and I vote accordingly.

Now I want to repeat, if I may, that I tried to be very definite and I am looking for it here, with the date of December 8 and I did that on purpose, I did that deliberately because that is a date that we are seized with.

I went on further to say that I knew the matter of constitutionality that we are dealing with was before the courts, December 9 of course. I knew the matter was before the courts and 1 said, nevertheless, that the steering committee could take that into consideration whether it was appropriate to be hearing these witnesses at the same time as the courts of the land were discussing the legality of our procedure.

I felt the steering committee, being adult men, and recognized as being the cream of the crop, if you like that the Committee here could pass judgment on whether or not we should hear any at all, and how many should be related to the date of December 9.

I come back to that point, because that is the main reason I voted as I voted, because I had started out in my remarks in saying I agreed with Mr. Epp. You did not quote that Mr. Epp, but you were quite selective in your choice of paragraphs, and maybe that is politically the right way to do it, but if you want to be political I can be political, but I prefer to take the high road in these matters. This may be humorous to people to whom this concept has never occurred, but I believe this to be an extremely important Committee dealing with an extremely important subject and dealing under certain restrictions if you like in the time frame, and I happen to believe very seriously in what we are doing here. I happen to be very concerned about constitutional problems; I have other things to do than sit here. So when I say that I would prefer to get on with hearing witnesses, that we refer these matters as much as possible to the steering committee where it can be debated ad nauseum if you like, I say that with sincerity.

I do not think it is a ridiculous statement and one that should create humorous opposition. So for that reason, Mr. Chairman, in conclusion, the inference that 1 voted because I was so instructed, that 1 voted because I did not want to hear the witnesses, 1 voted the way I did and I will continue to vote against any proposal from the floor of this Committee which I think should be referred in the very first instance to the steering committee.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey. I think you point is well made. The only thing I want to say is, I wanted to take exception to one of your statements to the effect that the steering committee is composed of members who are in a sense the cream of the crop. I understand there is only one kind of member here and I should say it is homogenized milk, it is not pasteurized.

Mr. Mackasey: It is cream, one is sour and one is fresh.

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The Joint Chairman (Mr. Joyal): I understand that the members agreed to do that overnight and I would suggest that we stop our discussion at this point with that French dictum “La nuit porte conseil”. One’s mind is always wiser the next morning.

So the meeting is adjourned to 9:30 tomorrow morning when we will hear the representatives of the Canadian Bar Association.

WITNESSES

At 9:30 a.m.

From the Canadian Association of Chiefs ofPolice:

Chief John Ackroyd, Chief, Metro Toronto Police;

Mr. Guy Lafrance, Legal Adviser, Montreal Urban Community Police.

From the Canadian Association of Crown Counsels:

Mr. Roderick McLeod, Q.C., Assistant Deputy Attorney General of Ontario.

From the Government of Yukon:

Hon. C. W. Pearson, Government Leader.

At 7:00 p.m.

From the Ukrainian Canadian Committee:

Mr. John Nowosad, President;

Mr. Manoly Lupul, Director, Institute of Ukrainian Studies.

From the Government ofPrince Edward Island:

Hon. J. Angus MacLean, Premier;

Mr. Fred Driscoll, Minister of Education.

Other Issues:

Index	1	2	3	4	5	6	7	8	9
10	11	12	13	14	15	16	17	18	19
20	21	22	23	24	25	26	27	28	29
30	31	32	33	34	35	36	37	38	39
40	41	42	43	44	45	46	47	48	49
50	51	52	53	54	55	56	57

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Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 14 (27 November 1980)

Constitution of Canada

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Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 14 (27 November 1980)

Constitution of Canada

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