Document Information

Date: 1981-11-05
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2968-2973.
Other formats: Click here to view the original document (PDF).

[Page 2968]

THE SENATE

Thursday, November 5, 1981

The Senate met at 2.30 p.m., the Speaker in the Chair.
Prayers.

THE CONSTITUTION

ANNOUNCEMENT OF AGREEMENT BETWEEN GOVERNMENT OF
CANADA AND NINE PROVINCIAL GOVERNMENTS

Hon. Royce Frith (Deputy Leader of the Government):
Honourable senators, I would like to explain the delay in
having the bell rung.

I am sure that all members of the Senate are aware that ten
of the eleven governments have reached agreement on the
question of the Constitution. In substance, they have reached
agreement on the three basic areas of concern, namely: patriation, an amending formula, and a Charter of Rights. These ten
governments have all agreed to patriation, an amending formula and a Charter of Rights. I do not propose to go into any
further detail because I am sure the Leader of the Government
in the Senate will give an explanation when he arrives from the
Conference Centre, as will the Prime Minister in the other
place.

I merely wished to explain the reason for the late ringing of
the bell. This agreement, described by the Prime Minister as
both encouraging and opportune, is indeed of great historic
importance. I am sure that we shall have an explanation, and
an opportunity to study its details very soon.

Therefore, I suggest that we proceed with our Order Paper,
awaiting any statements that our cabinet colleagues may wish
to make, or we can await the arrival of the Leader of the
Government in the Senate.

Hon. Jacques Flynn (Leader of the Opposition): ls anybody
ready to speak on this question? My suggestion is that if the
Leader of the Government is going to be with us later on,
ready to make a precise statement on this matter, we should
delay any comment-or even questions, for that matter—until
then, because otherwise we may only create confusion.

Senator Frith: Honourable senators, that was my intention
exactly, but I did feel that I should at least give the cabinet
colleagues of the Leader of the Government in the Senate an
opportunity to speak, if they wish. If they do not, then we can
leave the question of any further comment until the arrival of
the Leader of the Government in the Senate.

Hon. H. A. Olson (Minister of State for Economic Development): Honourable senators, ifl may, I should like to say that
my friends opposite will realize that the conference only ended
at 2.15 p.m. What we do have at present is a statement of
what nine provinces have signed and have agreed to, which is
the basis of the agreement. I was handed a copy of this as I
entered the chamber. The problem with reading it is that it
assumes a very high level of knowledge of the whole background of this process. For instance, it refers to such things as
the April Accord, and a whole lot of other things. Therefore, I
do not believe it would be possible to prepare a detailed,
comprehensive report on what has happened without being
thoroughly familiar with all the background. It could hardly
be expected that anyone here is, in fact, in that position.
Nevertheless, the possibility exists that later today the Leader
of the Government in the Senate will make a statement that is
reasonably comprehensive. It would be fleshed out from there,
of course.

Senator Flynn: Would you suggest that we wait for Senator
Perrault to join us? If he does, and if he is ready at that time
to make a full statement, we can then discuss the matter—of
course, with the unanimous consent of the Senate.

Senator Olson: Yes, honourable senators, that is what I am
suggesting. It is right in line with what the deputy leader has
stated. In fairness to the honourable gentlemen opposite, let
me say that the basis for the accord that was reached was
known a little earlier. That is the communication that was sent
from the nine provinces, and that is writtcn in language that is
not comprehensible to anyone who has not followed the proceedings up to this hour.

Senator Flynn: The honourable senator, however, should
realize that if nine out of ten premiers agreed on something,
the problem is not with what they agreed upon but, rather,
with what the tenth premier—namely, the Premier of Quebec—objected to. I would not want to comment on that before
we know exactly what the position is. If there were ten
premiers agreeing with Mr. Trudeau, there would be no
problem in discussing this or in saying “Hallelujah!” right
away, but I think it would be a little premature to do that at
this point.

Senator Olson: Honourable senators, I suggest that we take
the advice of the deputy leader and see whether we can have
that information before the end of this sitting.

Hon. Lowell Murray: Honourable senators, may I ask the
minister whether my information is correct that the Right
Honourable the Prime Minister intends to make a statement in
the other place at 3 o’clock this afternoon? If so, would it not
be possible for the Leader of the Government, or one of the
ministers, to obtain a copy of his statement and read it into the
record here at the same time, there being no lack, as the
minister is aware, of copying machines in the government?

Senator Olson: The minister is aware of all of that, but
there is one assumption made by the honourable senator

[Page 2969]

regarding which I do not know that we can give a commitment. That assumption is that the Prime Minister will read
from a prepared statement in making his report to the other
place. Taking into consideration the time factor, it is highly
likely that there will be no manuscript. If that is the case,
honourable senators can see the impossibility of acceding to
that request.

Senator Flynn: That is quite obvious.

Senator Frith: Senator Murray may wish to enlist the help
of his colleagues who stole the other document, to see if he can
get hold of this one the same way.

Senator Flynn: I hope it will not be from the same source.

THE CONSTITUTION

ANNOUNCEMENT OF AGREEMENT BETWEEN GOVERNMENT OF
CANADA AND GOVERNMENTS OF ONTARIO, NOVA SCOTIA, NEW
BRUNSWICK, MANITOBA, BRITISH COLUMBIA, PRINCE EDWARD
ISLAND, SASKATCHEWAN, ALBERTA AND NEWFOUNDLAND

Hon. Raymond J. Perrault (Leader of the Government):
Honourable senators, I have just come from the Conference
Centre. As I think all honourable senators are now aware, an
agreement has indeed been achieved involving the first ministers of Canada, nine of the ten provinces and the federal
government, on matters relating to the Constitution, the
amending formula and patriation.

The basic statement which has just been issued is brief, and
I will take this opportunity to read it to honourable senators.
Then I will table all of the material that has been made
available to me. I should like to give a copy of the statement to
the Leader of the Opposition at this time. The statement reads:

November 5, 1981

In an effort to reach an acceptable consensus on the
constitutional issue which meets the concerns of the federal government and a substantial number of provincial
governments, the undersigned governments have agreed to
the following:

(1) Patriation

(2) Amending Formula:

—Acceptance of the April Accord Amending Formula
with the deletion of Section 3 which provides for fiscal
compensation to a province which opts out of a constitutional amendment.

—The Delegation of Legislative Authority from the April
Accord is deleted.
(3) Charter of Rights and Freedoms:

—The entrenchment of the full Charter of Rights and
Freedoms now before Parliament with the following
changes:

(a) With respect to Mobility Rights the inclusion of the
right of a province to undertake affirmative action
programs for socially and economically disadvantaged
individuals as long as a province’s employment rate was
below the National average.

(b) A “notwithstanding” clause covering sections dealing with Fundamental Freedoms, Legal Rights and
Equality Rights. Each “notwithstanding” provision
would require reenactment not less frequently than
once every five years.

[Page 2970]

(c) We have agreed that the provisions of Section 23 in
respect of Minority Language Education Rights will
apply to our provinces.

(4) The provisions of the Act now before Parliament
relating to Equalization and Regional Disparities, and
Non-Renewable Natural Resources, Forestry Resources
and Electrical Energy would be included.

(5) A constitutional conference as provided for in clause
36 of the Resolution, including in its agenda an item
respecting constitutional matters that directly affect the
Aboriginal peoples of Canada, including the identification
and definition of the rights of those peoples to be included
in the Constitution of Canada, shall be provided for in the
Resolution. The Prime Minister of Canada shall invite
representatives of the Aboriginal peoples of Canada to
participate in the discussion of that item.

Honourable senators, the document is signed as follows: for
Canada, the Right Honourable the Prime Minister, Pierre
Elliott Trudeau; for Ontario, Premier William G. Davis; for
Nova Scotia, Premier John M. Buchanan; for New Brunswick,
Premier Richard B. Hatfield; for Manitoba, in the absence of
and for Premier Sterling R. Lyon, by the Attorney General of
Manitoba; for British Columbia, Premier William R. Bennett;
for Prince Edward Island, Premier J. Angus MacLean; for
Saskatchewan, Premier Allan E. Blakeney; for Alberta,
Premier Peter Lougheed; and for Newfoundland, Premier A.
Brian Peckford.

Honourable senators, this is a significant and, indeed, historic occasion in the evolution of our nation. I know that, in the
days and weeks to come, honourable senators will wish to
discuss and debate various aspects of the agreement which has
been achieved, and I know that this document will give rise to
numerous questions to which I will not be able to provide full
answers, since the negotiations concluded only this morning.
The explanatory information, which will help in answering the
detailed and technical questions arising from this agreement,
has not been made available as yet, but there will be a full
opportunity in the very near future for those questions to be
dealt with and, of course, for other statements to be made.

It is not without significance, honourable senators, that the
Premier of Quebec has not signed this agreement, but the
Right Honourable the Prime Minister stated in the open
session-which, I believe, was seen by a number of honourable
scnators—that there is at least the hope that some modifications and accommodations can be made later which will
encourage the Premier of Quebec to affix his signature to this
historic document.

Hon. Martial Asselin: Honourable senators, would what the
Leader of the Government has just described occur before the
passing of the resolution in both houses?

Senator Perrault: Honourable senators, the implication of
the question just asked is: Will the present arrangement
necessitate a modification in the resolution before us, and will
it require the assent of the Senate? Honourable senators, I can
say: Yes, that is the case.

Before tabling this document, it may be of interest to
honourable senators to have a copy of it, including the premiers’ signatures. If so, I shall have it photocopied. I believe it is
a rather important document which honourable senators will
cherish.

Hon. Jacques Flynn (Leader of the Opposition): Honourable senators, this agreement is cause for rejoicing.

Hon. Senators: Hear, hear.

Senator Flynn: Of course, we hope that eventually agreement from the Province of Quebec will be added to that of the
other nine provinces. What I would like to highlight at this
time is the complete change of attitude of the Prime Minister,
which is a great consolation to many of us and, as I have said,
it should be followed by efforts to make it possible for the
Government of Quebec to add its signature to the agreement.

I would like the Leader of the Government to confirm a few
points, either now or later. As I understand it, the referendum
clause in the amending formula has been deleted.

Hon. Duff Roblin (Deputy Leader of the Opposition):
Hurrah!

Senator Flynn: From the viewpoint of the dissenting provinces and the viewpoints expressed by some of us here and in
the other place, that is very important.

My second question will perhaps depend on the reaction of
Senator Steuart, but do I understand that the veto of the
Senate becomes merely a suspensive veto in the case of amendments to the Constitution? Does the leader say, “Yes”?

Senator Perrault: I am noting carefully all of the questions.

Senator Flynn: This is of interest, not because I object but
because, with an amending formula, I do not see how the
Senate could resist the will of the provinces as provided for in
that amending formula, even if it were for the abolition of the
Senate and the forced retirement of Senator Steuart, for
instance.

Hon. D. G. Steuart: You worry about yourself.

Senator Flynn: I don‘t worry about myself. The difference
between you and me is that absolutely nobody worries about
me.

It is my understanding that there was agreement from
Premier Levesque with respect to mobility rights. However,
one of the most important points is the reason the Premier of
Quebec said, “No”. It is my understanding that his negative
response concerns minority language rights in terms of education and the compensation for governments opting out. Are
those the only two points which prevented Premier Levesque
from signing the accord? I believe the Leader of the Government mentioned that the Prime Minister had indicated his
willingness to find a solution to those two points.

On the question of compensation, of course, if a province
opting out cannot prove that the opting out means a reduction
of revenues, I think it is logical that no compensation should be

[Page 2971]

provided. Perhaps we should stipulate that compensation
should be paid only if the opting out implies a reduction of
revenues. It seems to me that this would be an easy concession
to make, and I would hope that the federal government would
be prepared to do so.

Education is a rather more technical matter, but it seems to
me that in this respect there is also the possibility of a solution.

I should like the Leader of the Government to tell me if
those are the only two points which have justified or explained
the refusal of Premier Levesque to give his agreement.

Senator Perrault: I appreciate the comments and inquiries
made by the Leader of the Opposition. First, as to the matter
of the referendum, it is my understanding that the referendum
device or alternative is not contained in the agreement.

Secondly, some form of suspensive veto for the Senate has
been put forward.

Senator Roblin: On Constitution matters.

Senator Asselin: That also applies to Senator Steuart.

Senator Perrault: I do not have all of the final details on any
of these points. The Province of Quebec, indeed, registered
certain objections, primarily in those two areas mentioned by
the Leader of the Opposition—financial compensation to provinces should they opt out of certain sections, and educational
minority language rights. Other matters on which I have not
received full briefing, as yet, were discussed during the final
hours of the meetings.

Honourable senators, I have taken note of the questions
asked by the Leader of the Opposition, and perhaps at the next
sitting of the Senate statements can be provided on these and
other points raised by honourable senators.

Senator Asselin: If the document were before the Senate, we
would have a better basis for discussion. I am restricted in the
questions I can ask today because we do not have the document before us. It is my understanding that the resolution
document will be placed before both houses, and it is my
feeling that we should wait until the document is before us
before we have any further discussion.

Senator Perrault: Senator Asselin makes an excellent point.
I was about to say that literally at this moment some of the
documents are in the process of being printed. I think we
should provide honourable senators with as much documentation as possible, so that they may understand the implications
of this agreement and its details. After that, it would certainly
be worthwhile having a debate take place in the Senate on this
agreement and all its implications.

Hon. Ernest C. Manning: Honourable senators, I appreciate
that at this time it is not reasonable to expect the Leader of
the Government to be able to give us detailed information,
either on the agreement that has been reached or on the
procedure to be adopted. I wonder if he is in a position to
comment briefly on the latter. Would we be correct in assuming from what has transpired that this will now necessitate
redrafting the entire package that was before the two houses of

Parliament? In other words, I assume that the changes are too
comprehensive to be treated merely as amendments to that
package, and that it would be a matter of starting again with
an entirely new package.

If that is to be the procedure to be followed, or if there is
some other procedure intended, could the Leader of the Government give us any indication at this time as to when this
matter might come before the two houses of Parliament for
debate? I ask because some of us have problems arranging
transportation and would wish to be here for these debates.

I presume it would be unreasonable to expect that this
would be ready for next week, because of the tremendous
amount of work that will have to be done in redrafting the
whole package. Could the leader give us any further information along those lines?

Senator Perrault: Honourable senators, I have made preliminary inquiries on this matter, and it is my understanding that
the package will have to be redrafted—in fact, we will be
dealing with a substantially altered motion and perhaps an
entirely new motion.

In view of the importance of this debate, I am sure that the
whips wili keep all honourable senators fully informed as to
when it will take place and as to the proposed parliamentary
schedule for the motion.

Certainly, all government supporters will be kept fully
informed as to the schedule, and that information will be
provided in as complete a form as possible to all honourable
senators, but it will necessitate a new motion or a substantially
modified one.

Hon. Allister Grosart: Honourable senators, this question
may also be difficult to answer, but it is on a matter which will
concern us all. Will the ncws that we have received today
affect the order of each house limiting the debate to two days?

Hon. Royce Frith (Deputy Leader of the Government):
Honourable senators, the order of each of the two houses
limiting the debate to two days refers specifically to the
package now before Parliament. Therefore, if we are going to
deal with a new package, there is no question but that both
orders will be affected as deeply as anything could be affected;
that is to say, they will not be operative.

Senator Flynn: I guess you could always introduce a new
motion.

Senator Frith: We could always introduce a new motion, if
necessary, and a new order in similar terms, but that was not
the question. The question was whether the present orders are
affected, and I think they are.

Senator Manning: Honourable senators, I wish to pursue a
little further the one point I raised earlier. I appreciate what
the leader has said, that we will be kept advised as to the
timetable, but, in view of what was said earlier by the deputy
leader, that we will probably sit only on Monday evening and
Tuesday afternoon of next week, would I be correct in assuming that this matter will not be before the house next week? Is
that a reasonable assumption?

[Page 2972]

Senator Perrault: That is the present indication. I shall be in
contact with the office of the Right Honourable the Prime
Minister later today to discuss the parliamentary plans for this
very important motion. Should there be any change, that
information will be communicated immediately to you.

Senator Flynn: I suggest that the urgency has disappeared.

Senator Roblin: Could the honourable leader confirm my
understanding of the meaning of section (3)(b) of the agreement, which deals with the “notwithstanding” clause? As I
interpret this, we find that the Charter of Rights and Freedoms is entrenched in one sense, and yet the “notwithstanding” clause empowers any legislature—this one or that of any
one of the provinces—to pass a law dealing with fundamental
freedoms, legal rights and equalityrights that contradicts or
abridges the charter in some way or another by specifying
that, notwithstanding the Charter of Rights, they pass this
law; and that, furthermore, they are obliged to re-enact that
provision every five years if it is to remain valid. This seems to
me to be a most significant departure from the previous policy
of an entrenchment that indeed was entrenched.

Am I correct in thinking that this “notwithstanding” provision makes it possible for any legislature to alter the Bill of
Rights in respect of fundamental freedoms, legal rights and
equality rights bysimply providing for that in the terms of the
legislation?

Senator Perrault: Honourable senators, in anticipating that
questions might be raised in both chambers on this point, I do
have some explanatoryhmaterial regarding the question posed
by Senator Roblin. I should make it clear that the provinces
were very supportive of this particular change.

Senator Roblin: I should think so.

Senator Perrault: A “notwithstanding” clause is one which
enables a legislative body, federal or provincial, to enact
expressly that a particular provision of an act will be valid
notwithstanding the fact that it is in conflict with a specific
provision of the Charter of Rights and Freedoms.

The “notwithstanding” principle has been recognized and is
contained in a number of bills of rights, including the Canadian Bill of Rights, which, of course, was sponsored by the late
John Diefenbaker; the Alberta Bill of Rights, I972; the
Quebec Charter of Rights and Freedoms, 1975; the Saskatchewan Human Rights Code, 1979; and Ontario’s Bill 7 to amend
its Human Rights Code, 1981.

Honourable senators, it would be applied in this fashion:
Any enactment overriding any specific provisions of the charter would contain a clause expressly declaring that a specific
provision of the proposed enactment shall operate notwithstanding a specific provision of the Charter of Rights and
Freedoms. Any “notwithstanding” enactment would have to be
reviewed and renewed every five years by the enacting legislature if it is to remain in force.

Senator Roblina Then I take it from that explanation that
this constitutional document explicitly recognizes the primacy
of the legislature over the Bill of Rights in connection with

these particulars. That seems to be a very significant change
from what was proposed before. Now the document provides
that Parliament or the legislatures will indeed have the last
word with respect to rights in these particular fields.

Senator Perrault: Honourable senators, I do not want to
comment beyond the information I have just provided. I will
be pleased to provide further information on behalf of the
government on this point. At the same time, I appreciate
Senator Roblin’s views on the matter.

Senator Flynn: Honourable senators, I have a supplementary question on this very point. Would this “notwithstanding”
clause apply to all the areas of the charter? For instance, if it
did apply to language rights, it seems to me that the reservations or objections of Premier Levesque on language rights
would be solved by the application of this “notwithstanding”
clause. He could maintain, for instance, all the provisions of
Bill 101 which could be—and I do not say that they would
be—which could be affected by the Charter of Rights, and a
subsequent government could, of course, just abolish that. I
would like the leader to try to get that specific information
regarding language rights.

Senator Perrault: Honourable senators, it is my understanding that there is no opting out provision for language rights.

Senator Flynn: There is no “notwithstanding” clause either?

Senator Perrault: That is my understanding. However, I will
be pleased to bring a further statement to the Senate.

Hon. Frederick W. Rowe: Honourable senators, may I
revert to the point alluded to by Senator Manning a few
moments ago. I do not wish to belabour the point, but some of
us have to make arrangements for travelling and it is becoming
increasingly difficult to do that. In view of the information
that has come to us since Senator Frith intimated that he
would be introducing a motion that the Senate adjourn until
Monday evening, is it still the deputy leader’s intention to
introduce that motion?

Senator Frith: Yes, honourable senators.

[Translation]

Hon. Jean-Paul Deschatelets: Honourable senators, may I
direct a question to the Leader of the Government?

After the conference, when he spoke to the premiers and the
people of Canada, the Prime Minister intimated that he hoped
an agreement could be reached with Quebec, especially on the
conflicting issues. Could the Leader of the Government
enquire as to whether arrangements have been made to hold
meetings, at the ministerial level, in order to try and find a
solution which Quebec might agree with?

[English]

Senator Perrault: Honourable senators, that question will be
taken as notice. Certainly the Right Honourable the Prime
Minister demonstrated a most forthcoming and conciliatory
attitude at that meeting, as honourable senators are aware.

Senator Flynn: Very new.

[Page 2973]

Hon. Sidney L. Buckwold: Honourable senators, may I seek
from the Leader of the Government clarification of a reservation in the form of a marginal note signed by the representative of the Manitoba Premier. It says:

Subject to the approval of section 3(c) by the Legislative
Assembly of Manitoba.

Not being close to the actual resolution, and not being aware
of what the “3(c)” means, can that marginal note be
explained?

An Hon. Senator: The explanation is there.

Senator Buckwold: I am sorry; I had not noticed it.

Senator Perrault: Honourable senators, I have nothing to
add—at least not at this time—with regard to that point. The
question will be taken as notice. The Premier of Manitoba was
not present for the final signing session, as honourable senators
can see. I do not know the full implications of that marginal
notation.

Senator Roblin: It may have something to do with the
Manitoba Act, which contains language provisions that were
recently adjudicated. I suspect that might be the reason.

Senator Perrault: Honourable senators, I now table:

Agreement between the federal government and provincial governments, dated November 5, l98l, with respect
to a consensus on the constitutional issue.