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Date: 1980-10-22
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1980 at 918-923.
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SENATE DEBATES — October 22, 1980

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THE CONSTITUTION

PROPOSED RESOLUTION FOR A JOINT ADDRESS TO HER MAJESTY THE QUEEN—DEBATE CONTINUED

On the Order:

Resuming the debate on the inquiry of the Honourable Senator Perrault, P.C., calling the attention of the Senate to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada”, tabled in the Senate on 6th October, l980.—(Honourab1e Senator Lamontagne, P. C .).

Hon. Royce Frith (Deputy Leader of the Government): Honourable senators, Senator Lamontagne is not able to be

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here this afternoon—at any rate, he will not arrive until later—and I am authorized to yield to Senator Manning on his behalf.

The Hon. the Speaker: Is it agreed, honourable senators?

Hon. Senators: Agreed.

Hon. Ernest C. Manning: Honourable senators, I enter this debate with some trepidation because of the seriousness of what we are discussing. Seldom in the long history of this chamber has there been greater need and obligation to honour the twofold responsibility which is ours, to give sober second thought to those propositions which come before us and to bring to bear on parliamentary debates the desires and concerns of the regions we represent. If ever a proposition cried out for sober second thought it is the one before us now. It bears directly on Canada’s future as one strong and united nation. Unwise decisions may create a backlash that could inflict mortal wounds from which Confederation would not recover. If Canada is strong enough to endure the blows already dealt to national unity, we still may be confronted with constitutional provisions which will be permanent causes of regional alienation and dissent.

We are all aware of the long series of efforts to reach agreement on constitutional reform. On at least two occasions agreement was reached, but when it came time for ratification, someone always lacked the fortitude or necessary political support to take the final step. The long series of efforts and failures reached a climax at the last meeting of first ministers.

The major factors militating against success were apparent. The first was unrealistic objectives and time constraints. Both the pre-conference committee and the conference itself tried to reach agreement on a much too broad spectrum of reform, thereby opening up too many areas of disagreement. Had the committee and first ministers concentrated on the single goal of reaching agreement on an amending formula and patriation, I am confident that that initial goal would have been reached. The way would have been opened for immediate patriation and impetus given to concerted efforts to resolve the remaining issues in an atmosphere of co-operation and goodwill.

Secondly, the time constraints placed on both the committee and the conference were unrealistic. Such negotiations are, of necessity, slow and laborious processes, requiring much patience much perseverance, and much time. They simply cannot be hurried. By insisting on unrealistic deadlines, the propects for success were impaired.

The third cause of failure was the Prime Minister’s almost total rejection of the viewpoints and concerns of the 10 provincial premiers. In a philosophical approach to what he regards as Canadian nationhood, he held that Canada is more than the sum total of its provinces, and the federal government, rather than a partner with provincial governments, is a power above and apart, representing national interests which transcend those of the ten provincial governments combined.

While attaching great importance to his so-called “people’s package,” including his “Charter of Rights,” he was unresponsive to the equally important concerns of the provincial premiers in matters which affect not merely their regional interests but the well-being of the nation as a whole.

For example, every part of the country today is adversely affected by unresolved jurisdictional disputes involving the ownership and management of natural resources, including offshore mineral rights. In my province alone, two major projects for increasing Canada’s energy supply, by developing the Athabaska oil sands and the Cold Lake heavy oil deposits, are close to being abandoned because of the jurisdictional conflicts over energy-pricing policy.

These two projects alone would infuse over $13 billion into the Canadian economy, would create thousands of new jobs for Canadians, many in central Canada, and, when in production, would reduce imports of costly foreign oil by over 250,000 barrels a day. It is estimated that the value to Canada of these projects alone would be approximately $15 million a day.

Recent reports indicate that some $2 billion of oil exploration and development capital has already been diverted to the United States, and scores of drilling rigs are following, with the loss of hundreds of Canadian jobs—all because of federal-provincial controversy over energy management and pricing policy. A similar situation is developing on the Atlantic seaboard with respect to offshore mineral rights.

I cite these examples not to impute blame but to emphasize that the national as well as regional interests are severely damaged by unresolved jurisdictional disputes. The solution to these problems does not necessarily require constitutional amendments, but it does require a recognition that often the national and regional interests of this country are inseparably related and the provincial governments must therefore be treated as equal partners with the federal government in the policymaking process through which solutions to these problems must be found.

Concerned that Ottawa is committed to exercising increasing control over the management of provincial natural resources and regional economic policy, the provincial governments made it clear that if the Constitution is to be amended they want their right to the ownership of natural resources and the management of provincial economic policy reaffirmed and entrenched. A twentieth century Constitution must provide the framework for a meaningful new national economic policy.

The Prime Ministers response to their insistence that economic rights be given equal recognition with what he describes as people’s rights was to say that he was not prepared to bargain freedom for fish or fundamental rights for oil. Under such circumstances, it was not surprising that the conference ended in failure.

The wise and prudent thing to do at that point would have been to set aside temporarily all issues other than patriation and agreement on an amending formula, which even then could, in all probability, have been reached. Instead, the Prime Minister decided to embark upon a course of unilateral action to both repatriate and amend the Constitution, despite warn-

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ings from most of the premiers that such action could have dire consequences for Confederation.

I do not question the Prime Minister’s belief that he has chosen the right and responsible course, but he is wrong—terribly wrong—and he is risking unnecessarily the danger of tearing Confederation apart.

May I comment on the implications of what he is attempting to do? To begin with, patriation per se is not a matter of disagreement among the Canadian people or Canadian governments. Practically all agree that our Constitution should be our own statute, passed by our own Parliament and domiciled in our own country. It is equally true to say that patriation is not a matter of widespread public interest or concern, even after the federal government has spent millions of dollars on television advertising telling Canadians that it is. Certainly, it is not regarded by the public as a matter of urgency. On the average Canadian’s list of concerns, patriation would have a very low priority compared with the really serious and urgent problems of unemployment, inflation, energy, balance of payments, and budget deficits.

I venture to say that, left to their own good judgment in assessing the public mood, few if any government party members in the other place, or in this chamber, would be making patriation and constitutional reform a major national issue at this point in time had not the Prime Minister, as Leader of the Liberal Party, insisted on making it a national issue.

I repeat, while it is not a matter of urgent public interest and concern, few if any Canadians, and certainly no Canadian government, are opposed to patriation per se. For this reason, it was improper for the Prime Minister, at the press conference announcing his intentions, to say that those who might propose petitions or resolutions to Westminster would look silly saying to the British Parliament, “We don’t want our Constitution in Canada.” No one is saying that at all.

What the provincial governments and many individual Canadians are saying is that they do not want the federal government to act unilaterally in a matter with such far-reaching implications for every province and every Canadian citizen. Particularly, they do not want the Prime Minister acting unilaterally to make patriation a smoke screen behind which the government of another country is being asked to make significant amendments to our Constitution, unacceptable to many Canadians and to at least seven of the ten provincial governments.

The course of action on which the Prime Minister has embarked embodies two grave consequences for the unity of Canada now and in the future. The first is the divisive impact of what already has taken place. It is beyond comprehension why the Prime Minister would arbitrarily initiate the course of unilateral action he has announced having regard to the circumstances which exist at present. With the ties of Confederation already under severe strain, he could not have chosen a worse time to embark on a course of divisive unilateral action.

To proceed in the manner proposed violates the spirit, if not the letter, of established provisions for altering the B.N.A. Act, and does violence to long-standing Canadian traditions. It ignores entirely the valid objections voiced by the ten provincial governments. It makes a mockery of Canada’s commitments to those people of Quebec who defeated the sovereignty-association referendum on the strength of federal promises that there would be speedy and acceptable constitutional reform.

The claim that the action proposed honours those commitments is one of the most dishonest aspects of this entire exercise. Much effort towards constitutional reform in recent years was prompted by a desire to meet Quebec’s aspirations and concerns. What is now proposed is unilateral action rejected by Mr. Lévesque representing the supporters of sovereignty-association, and by Mr. Ryan representing the majority of Quebecers who rejected sovereignty-association. The course the Prime Minister is pursuing is one which both Quebec leaders not only reject, but publicly affirm they will go to court to prevent. To say that this action is being taken to meet Quebec’s aspirations is ludicrous.

In a confederation such as ours in which a co-operative partnership between the two levels of government is vital to national unity and strength, no government should act unilaterally to override the expressed objections of a substantial majority of the other partners, except in cases of extreme necessity. Even then the central government should not act unilaterally unless it has a substantial majority in the House of Commons and unless its members are drawn from all regions of the country, thereby truly reflecting the national will. This essential requirement does not exist in the present Parliament.

Of a total membership of 282, there are at the present time six vacancies in the House of Commons. The government party supporters number 143 for a majority of 33 seats. But 72 of the government’s members are from one province—Quebec—and over 86 per cent of its members are from the two central provinces of Quebec and Ontario. It has only 20 members from the eight other provinces combined, only two members from west of the Ontario-Manitoba boundary and none west of the province of Manitoba. Under such circumstances it is in no sense a truly national government. What we have is the leader of what has become a regional political party with only regional representation in Parliament presuming to alter the face of Canada and remake it in his own image, after his likeness, by imposing unilaterally on the entire nation an amended Constitution that significantly changes the structure and basis of Confederation.

That the Prime Minister recognizes this weakness is evident from his recent concessions to the New Democratic Party to gain their backing to give the semblance of support from more regions of Canada. The extent to which these concessions are substantive remains to be seen. Of one thing I am certain—the Prime Minister and his government have not begun to appreciate the amount and intensity of the animosity his decision to act unilaterally has engendered in many parts of this country,

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particularly western Canada, and how grievous the wounds already inflicted on the unity of this nation.

The second grave consequence is that which we will face in the future if the unilateral action is carried to fruition. It is inaccurate to say that the provisions embodied in the proposed Constitution bill do not significantly alter the status quo. They are provisions which have far-reaching implications and hold the potential for future controversy and dissention. Let us consider their implications briefly.

First, there is the matter of the so-called Charter of Rights. All provincial governments and the overwhelming majority of the Canadian people unreservedly support the concept of respecting and protecting human rights. The point of contention is whether a Charter of Rights should be entrenched in the Constitution, or whether the protection of human rights should remain the responsibility of Parliament and the provincial legislatures.

Certainly an argument can be made for entrenchment. Entrenchment would give such rights an immutability they do not possess when embodied in federal or provincial statutes. Entrenchment is used in the United States to ensure basic rights. Ironically, it is also employed by the Soviet Union which, on paper, has one of the most idealistic constitutions in existence. This is significant only in that it proves that entrenchment in itself is not a guarantee that human rights will be respected.

It is interesting that entrenchment is strongly supported by those who abuse their rights to advance a particular cause or serve their own interests. In the United States professional criminals and subversives seem to be among the best-informed on the matter of their constitutional rights. The work of law-enforcement officers frequently is thwarted by such people employing every legal device to escape justice on the grounds that some constitutional right has been at least technically violated. Those who are obviously guilty often are acquitted by the courts on the grounds that the process of justice did not show due regard for some aspect of their entrenched constitu- tional rights.

The alternative to entrenchment is the British system based on a concept of human rights too broad and comprehensive to embody in a constitution and that respects the sovereignty of Parliament to legislate wherever necessary to ensure that individual rights are protected. This is the system we have followed in Canada for over 100 years, and which has worked eminently well. The Honourable the Leader of the Government in initiating this debate said that if the late Right Honourable John Diefenbaker were alive he would be saying, “Hear, hear,” to the proposal to entrench a Charter of Rights. Without presuming to speak for the late Mr. Diefenbaker, I doubt the accuracy of the leader’s conclusion. Mr. Diefenbaker, above all else, was a champion of the supremacy of Parliament, and his confidence in Parliament as the proper custodian of human rights was demonstrated by his decision to establish his Charter of Rights as a bill passed by the Parliament of Canada.

When parliaments are the guardians of human rights, if weaknesses develop or changes become desirable, elected representatives soon feel the pressure of public opinion, and the necessary statutory changes can readily be made in response to the public will. In our diverse society in these changing times it is my conviction that this is an eminently better system than that which takes this matter out of the hands of Parliament by constitutional entrenchment, where new provisions can be added or old provisions strengthened or changed only by controversial constitutional amendments, and where those who feel aggrieved have recourse not to their elected representatives but only to the courts.

However, in the matter before us, the primary issue is more than which of these two systems is best. The question is: Should the federal government, lacking true national representation in Parliament, move unilaterally to change an established system which is working eminently well, when such$0a change has obvious disadvantages and is objected to by all but one or two of the ten provincial governments and a large body of Canadian people?

My submission is that it should not.

But there is another feature in the proposed Charter of Rights which, if entrenched unilaterally, will prove to be a permanent source of disunity and will certainly be counterproductive. I refer to the provision regarding language rights.

The stated objective is to ensure that English or French minorities have the right to have their children educated in either official language, if the number of students in the community warrants. That involves an indisputable change in the Constitution as it relates to provincial rights in the field of education. It takes away from provincial legislatures a power they have exercised for over 100 years, and exposes them to the obligation to provide and fund language education facilities for minority groups able to claim such service as a constitutional right.

Regardless of the merits, no one can say that that is not a fundamental change in the Constitution, and since it directly affects long-established provincial rights, it is one that should not be made without the concurrence of the provincial governments.

If implemented in the manner proposed, it will become a continuing source of controversy. It will be impossible to avoid disputes over what is the proper number of pupils that should require school authorities to provide instruction in the language of the minority. That question will be decided by the courts. The adverse consequences of school authorities being forced by court orders to provide and fund education in the second language for minority groups are obvious, especially in communities which are hard-pressed to provide adequate educational opportunities in one language.

But what should give us further concern is the negative aspect of all of this on bilingualism itself. Unfortunately, bilingualism is such a sensitive and emotional issue that most people tend to avoid discussing it for fear of being misunder-

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stood. Bilingualism has been a national issue in this country for 15 years. We have had an Official Languages Act for 11 years. Surely by now some facts are apparent to us all.

The passing of the Official Languages Act gave official status in the federal field to the French and English languages, but it did not make a single Canadian bilingual. Eleven years later, and after spending hundreds of millions of dollars on language education, Canada remains a bilingual nation in name only. Surely by now experience has taught us that you cannot attain bilingualism by legalistic means. It must be a matter of individual desire and choice, stemming from an appreciation of the value and satisfaction of being able to communicate in both English and French.

Entrenching language rights in our Constitution will be counterproductive so far as fostering bilingualism is concerned. What it will do is increase the resentment and resistance of those who will interpret such entrenchment as a further attempt by the federal government to unilaterally force on them and their region of the country something they do not want and cannot be made to accept. If bilingualism is a national goal, we do not hasten its attainment by creating situations which mitigate against it.

I turn now to the matter of equalization. If by equalization is meant entrenching in the Constitution the existing formula for redistributing revenue to subsidize provinces whose income from certain fields of taxation falls below the national average, there will be little objection, even though such entrenchment would rob the formula of desired flexibility.

The real danger in such entrenchment, and the reason it is opposed by at least some of the provinces, is uncertainty as to the interpretation that may be placed on guaranteed equalization. The question is being asked in more than one province, “ls this a provision to enable the federal government to grab a lion’s share of the revenue from temporarily lucrative but depleting provincial natural resources on the ground that such action is a national necessity to increase federal fiscal grants to other provinces to comply with the Constitution’s equalization provision?”

Government supporters will argue that such is not the intent, and certainly they have every right to so argue. But I draw your attention to two important facts. First, many Canadians in western Canada at least, and the leaders of a number of provincial governments east and west, simply do not trust the Prime Minister when it comes to respecting the ownership and management of their depleting natural resources and the revenues that accrue therefrom. Second, no matter what the intent may be, the precise meaning of equalization in the Constitution will be subject to different interpretations, and will inevitably lead to controversy and references to the courts, all of which will have a negative impact on federal-provincial relations and national unity.

Finally, there is the proposed provision with respect to an amending formula. It is proposed that following patriation no changes will be made for two years unless unanimity is attained. In the national atmosphere of resentment which unilateral action will produce, there is little hope of unanimity being attained during the two-year period. After two years, amendments will be made in accordance with one of three options: first, the so-called Victoria Charter; second, a new formula agreed to by that point in time; or, third, a national referendum.

With respect to the Victoria Charter, while it represented a substantial measure of agreement, it contains features to which some provinces take strong exception. One is the power of veto to be permanently enjoyed by the Provinces of Ontario and Quebec but denied to all others. Having regard for the difference in population between the provinces, it would be unrealistic to argue that each should have a full power of veto. But surely, in those matters involving the rights and powers which provinces now enjoy, they should not be altered or taken away without the consent of the province affected.

Regarding the possibility of working out a new amending formula, if good methodology is employed, I believe that can be done provided the federal government is prepared to modify its uncompromising rigidity in the matter of retaining centralized control over government policy decision-making processes in Canada.

I am well aware of the federal government’s claims of flexibility, but what it ignores is that there are two kinds of flexibility. It is one thing to be flexible in agreeing to move the pieces around within a certain parameter you have defined—in this case its own particular concept of Canada—but it is another thing to be flexible by agreeing to move the pieces beyond the parameter you have defined in order to respect and accommodate the equally valid positions of other levels of government.

It is not a matter of denuding the federal government of its proper and necessary federal powers. It is a matter of recognizing that Canada has undergone tremendous change in recent years and the old concept of a nation with a protected industrialized central region with a hinterland east and west no longer is viable. Having regard for national growth and economic development, especially in the western provinces, major decision-making powers can no longer be concentrated in the central government dominated by representation from one region of the country. Unfortunately, there has been little federal flexibility in addressing this major national issue.

In the matter of a national referendum as a method of implementing constitutional amendments, this is surely one of the least desirable courses of action. It is a method whereby the federal government could attempt by massive national propaganda to persuade a majority of the Canadian people to accept its proposals for constitutional change, no matter what the views and concerns of the provinces might be. Reports that the federal government’s propaganda fund has been increased to $35 million are not without significance.

More serious is the fact that referendums inevitably produce polarization. People are asked to choose sides on issues which invite fundamental differences of opinion. The resulting polari-

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zation divides families and communities, and could seriously further divide the country. This latter danger is aggravated by the imbalance of population and interests between the various regions and provinces. Nationally the citizens of the two central provinces, who have mutual interests significantly different from those of other regions, could always outvote the rest of the population.

It is true that a referendum on a constitutional amendment under section 41 will require a double majority for acceptance—that is, a national majority of those voting, and a majority in favour in each major region of the country, namely, Ontario, Quebec, the maritimes and the western provinces. This would enable citizens in any one region to defeat the referendum even if it received a favourable majority nationally and in each of the three other regions; but such an outcome would generate resentment and further aggravate the already serious regional differences which impair the unity of this country.

Honourable senators, the irony of this whole situation is that it is man-made and totally unnecessary. As I have said, constitutional reform is not in itself a matter of urgent public importance and concern. The extent to which it has become a contentious public issue is because the Prime Minister has chosen to make it so. It is now dividing the country and consuming the time and energies of governments which could be better spent in co-operative efforts to resolve the nation’s far more serious and urgent economic problems.

Having regard for these circumstances, I appeal to all honourable senators to weigh most carefully the role that this chamber can and should play at this crucial time in our national history. I suggest there are three things that we can and should do. First, we should do all in our power to persuade the Prime Minister to reconsider the dangerous course on which he has embarked. This obviously rests primarily with senators who are members of the government party. As such, their individual and collective judgment is something which I am certain the Prime Minister respects. I am equally certain that they have deep respect, and even affection, for their leader which must surely be a motivation for them to dissuade him from a course that can only enshrine him in history as a leader who did more to divide Canada than any other Prime Minister since Confederation.

Secondly, we can act to prevent the proposed resolution from being approved by Westminster by withholding our endorsation. Westminster might act without the concurrence of the provincial governments, but it would not act without the concurrence of this house. Surely this is a situation in which all partisan interests should be set aside and we should all act solely in the interests of Canada as a nation. This can well be an historic occasion, when the wisdom of the Fathers of Confederation in providing this chamber of sober second thought will be demonstrated as never before.

Thirdly, we can initiate within this chamber an alternative course of action that could lead to a resolution of disagreements over constitutional reform. We should establish a small task force and employ a wholly different methodology to develop acceptable constitutional amendments. The substance of future amendments in areas of concern should first be embodied in temporary political agreements between the federal and provincial governments with the understanding that after a trial period of perhaps two years their substance would be adopted as constitutional amendments and implemented under whatever amending formula has been worked out. I am confident that such a procedure could be successful, and certainly it would be an appropriate and constructive role for this house.

I close with an earnest appeal to those who in their resentment and frustration are reacting to the government’s present proposals with talk of separation. I am deeply troubled by the large number of serious-minded responsible people in western Canada who a year ago would have rejected the idea of separation out of hand, but who are now joining or supporting organizations advocating that the west separate. Such organizations are attracting members and fringe supporters not by hundreds but by thousands. It would be a grave mistake for the federal government to ignore the potential danger to Canada inherent in such trends.

I am unalterably opposed to any attempts to break up this country in any way. I am certain this is still the position of the majority of Canadians east and west, and I appeal to all such to remain steadfast in their commitment to Canada as one united nation from sea to sea no matter how great the provocations may be.

I appeal with equal fervor to the Prime Minister and his government for the good and future of Canada not to go on imposing more strains on ties which already are at the breaking point. Let none of us fail Canada in this crucial hour.

On motion of Senator Olson, debate adjourned.