Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Debate Continued”, 32nd Parl, 1st Sess (26 March 1981)

Document Information

Date: 1981-03-26
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2174-2182.
Other formats: Click here to view the original document (PDF).

SENATE DEBATES — March 26, 1981

[Page 2174]



The Senate resumed from yesterday the debate on the motion of Senator Perrault that an Address be presented to Her Majesty the Queen respecting the Constitution of Canada.

Hon. Paul Yuzyk: Honourable senators, I intend to introduce an amendment to this resolution at the end of my speech.

Honourable senators, in the debate on the proposed resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada, on November 3 last year I took a critical stance. In dealing with the Charter of Human Rights and Freedoms I charged the government with discrimination against the ethno-cultural groups, including the native peoples, and said that it appeared that the government had repudiated the policy of multiculturalism, since there was no mention of it in the proposed Constitution.

During the hearings of the special joint committee, in which I participated several times as a substitiite, there were many representations from the non-Anglo-Celtic, non-French groups, as well as from the Canadian Consultative Council on Multiculturalism. As a result, the government and the special joint commiittee responded favourably to the demands of a large segment, nearly one-third, of Canadian society. A new clause, clause 27, was added, which reads as follows:

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

Clause 25 recognizes the aboriginal and treaty rights of the native peoples of Canada, but in a limited way.

In his speech on March 19 Senator Peter Bosa, a former chairman of the Canadian Consultative Council on Multiculturalism, reiterated his support for the rights of minorities in the interests of the quality, unity and happiness of all Canadians, for which I commend him.

Why, up to this time, had the Liberal government remained reticent on this matter, and why did it accede only under pressure? Was it not this government which instituted the policy of multiculturalism within the framework of bilingualism on October 8, 1971, 10 years ago, with the solid support of all the other parties? Did not this government, in 1972, establish a Ministry of State for Multiculturalism, with Dr. Stanley Haidasz, now Senator Haidasz, as its first minister? Was it not this government that established the Canadian Consultative Council on Multiculturalism in 1973? Have not most provinces of Canada adopted a policy of multiculturalism which preserves and perpetuates languages and cultures of various ethnic groups, to be shared by all Canadians? Was it not a previous Liberal government through the Secretary of State at that time, the Honourable Maurice Lamontagne, now Senator Lamontagne, which established the Canadian Folk Arts Council, in 1965, now a prominent body promoting rich cultural activities throughout Canada? Did not the Royal Commission on Bilingualism and Biculturalism, of which the Deputy Leader of the Government, Senator Royce Frith, was a prominent member, in the fourth volume of its report tabled in 1971, recommend the recognition of multiculturalism, in addition to bilingualism? Did not the Special Joint Committee on the Constitution of Canada, of which the co-chairmen were Senator Gildas Molgat and the Honourable Mark

[Page 2175]

MacGuigan, the present Secretary of State for External Affairs, table a report in 1972, which stated that Canada was an “independent, democratic, officially bilingual, multicultural state”?

After this imposing record, why was the present government reluctant to grant recognition to multiculturalism in the Charter of Human Rights and Freedoms of the Constitution until pressure was exerted by various organizations and societies of nearly one-third of the Canadian population? Whatever reasons the government may have had for previously ignoring this matter, the Canadian reality of today is multiculturalism, and I share the happiness of several million Canadian citizens at the fact that general recognition is given to it now in the amended charter. The implementation of multiculturalism, however, is meaningless if the parameters are not defined.

The members of the special joint committee are to be commended for their long hours of dutiful work, dedication, patience and judgment. The charter is good as far as it goes, and on this they are to be congratulated.

The charter, however, does not go far enough and has many shortcomings, with respect to which parliamentarians have been receiving considerable criticism from various quarters. Here are some of the things which have been left out of it and which should be incorporated into the charter:

1. The person’s to property, although recognized by statute law up to now;

2. Recognition of God and the Judeo-Christian ethic, democracy’s cornerstone, professed by a large majority of Canadians;

3. Equality of women before the law and removal of certain discriminatory aspects of this matter in some clauses;

4. Reform of the Supreme Court to prevent possible partisanship of judges and assure neutrality, independence and prestige;

5. The right to freedom from political imprisonment— the War Measures Act is made part of the Constitution, making apprehension indictable;

6. The right to life of every living human being from the time of conception to the natural end, including the handicapped and the aged;

7. Rights for the family.

I am mentioning a few important principles that need serious consideration. There are others. Some of the clauses will have to be reconsidered, and the wording of many clauses could be improved for clarity. I believe that the joint committee was in too much of a rush. Although the members considered these matters, they just did not have the time to realize all the implications.

I do not intend to plead the case for these items, but merely present them in order to convey certain inadequacies that are being voiced by many Canadians, both groups and individuals, proving that more time and thought are needed to produce a better charter.

This proposed charter is not the Canadian Constitution; it is only one part of it, though certainly a very important part. I am sure that the people across our vast country would like to see a new, modern Canadian Constitution which would meet present-day needs and be flexible enough to provide the means for the solution of future problems. For this we need more time.

I support the patriation of the B.N.A. Act and a workable amending formula. My pride as a Canadian, however, does not allow me to approve of the enactment of a Canadian Charter of Human Rights and Freedoms by the British Parliament—a friendly but foreign power. This action would indicate that we are still colonials and, in my opinion, it would be a contradiction of our sovereignty and a blot on our integrity as a free nation. I hope that the Parliament of the United Kingdom will approve patriation and an amending formula, but that it will decidedly throw out the constitutional package on the ground that sanction of such a constitutional measure would be tantamount to interference in the internal affairs of a foreign state.

We cannot blame the United Kingdom for the constitutional mess in which we find ourselves. The British North America Act of 1867 was drawn up in Charlottetown and Quebec by delegates from the Canadian provinces, and no British representative was even present. The final consideration of the resolution took place in London, England, again with no British representatives present. Therefore, the B.N.A. Act was made in Canada and passed by the British Parliament at the request of the whole Canadian delegation. My understanding is that Britain has always been willing to return the Constitution to Canada, but it was the Canadian governments who could not find the method to bring it back.

There is a method of enacting a new Canadian Constitution which, in my opinion, would be less painful and less divisive than that which is now being imposed upon us by Prime Minister Trudeau. In my speech on the Constitution of Canada, delivered in 1970, and later when the joint parliamentary committee, of which I was an active member, tabled its report in 1972, I pointed out the fact that most democratic countries of the world drew up their constitutions in constituent or constitutional assemblies.

I give, as an excellent example of this method, the creation of the American Constitution, since the United States of America is a federal state much like Canada. The articles of confederation drawn up by the states in the summer of 1776 provided for a continental congress composed of delegates chosen by each slate. There was much quarrelling among the states at the two continental congresses, so the delegates decided to call a constitutional convention in May 1787. The 55 representatives of states, under the leadership of such able men as Washington, Franklin, Madison, Hamilton and others, drafted a constitution in four months, which was then ratified by the states and became the law of the nation two years later, in 1789. In considering this example, I am interested in the method of drafting a constitution rather than in its contents.

[Page 2176]

As matters now stand in Canada, Prime Minister Trudeau is attempting to establish a new federation without the full consent of the constituent provinces. He cannot claim to speak on behalf of the entire Canadian nation. In his speech on March 18, Senator Manning, the former Premier of Alberta who has constantly voted with the Liberal government in the Senate, strongly opposed the government’s arbitrary unilateral action, stating:

—that the federal government party in the present Parliament is in no sense a representative national government. Over 50 per cent of its members are from one province, Quebec, another 36 per cent are from the other central province, Ontario, leaving only 20 government members from all the rest of Canada, and only one—

And I will correct this; it should be two.

—from the four western provinces whose six million people account for 25 per cent of Canada’s population. For a federal government, with no broad national representation in Parliament, to use its numerical majority concentrated in the two central provinces to impose its will on the entire nation in a matter as vital as the country’s Constitution, in the face of strong opposition from all but one of the other eight provinces, is wrong and indefensible.

Even if the Trudeau government railroaded the whole package through Parliament, and even if the Parliament of the United Kingdom approved the whole resolution, we would still not have a modernized Constitution. Therefore, we can profit from the experience in the creation of the Constitution of the United States, which I described earlier.

Several constitutional scholars have recommended the convening of a constitutional assembly. Following the advice of some of these constitutional experts, I make the suggestion that Prime Minister Trudeau call a federal-provincial meeting in the very near future to discuss the formation of a constitutional assembly. This body should consist of, for example, 60 members, 30 of whom should be chosen by the federal government and 30 by the provincial governments. In the words of Professor J. V. Clyne, who appeared before the Special Committee of the Senate on the Constitution of Canada not so long ago, such a body should consist of:

. . . experts drawn from all walks of life to examine the subject thoroughly in the light of evidence taken in all parts of Canada and to make recommendations to Parliament and to the legislatures as to a new or a revised Constitution.

I would add that these experts should also include representatives of classes, women, minorities and regions. They would be instructed to draft a new Constitution or a revised B.N.A. Act within a period of six months to one year. This draft Constitution would then be submitted to the federal Parliament and the provincial legislatures for adoption and ratification, which was the procedure followed at the time of Canadian Confederation.

Since the members of such an assembly would not be influenced by political pressures or ambitions—which could have been the case with respect to the first ministers—a constitutional document presented by them would, in all probability, be accepted by the federal Parliament and the provincial legislatures. This does not mean that such a document would satisfy all the political leaders, but they would know that all issues would be reasonably resolved. This would be a complete Constitution delineating the distribution of powers between the federal and provincial governments, setting out the functions of the houses of Parliament, the Charter of Rights, the amending formula and all matters which go into the making of a modern Constitution.

There are many matters which can be more readily resolved by such an assembly, including such important ones as the development of our rich natural resources, the principle of equalization, the entry of new provinces—keeping in mind the Yukon and the Northwest Territories—and secession. There is also the matter of electoral reform. Change of the electoral system has been stymied because members of Parliament are afraid of losing their own seats. A constitutional assembly whose members have no seats to lose in Parliament is in a better position to devise a more representative electoral system.

Honourable senators, I have presented very briefly the idea of a constitutional assembly, which, of course, is not new. Obviously, it will need elaboration. This is a viable, speedy method. If the Americans could produce their constitution in four months 200 years ago, when they had no models to choose from, why cannot Canadians produce an acceptable constitution of their own in six months, when they can study many types of constitution that have been adopted by a large number of democratic countries, and, particularly, when they have at their disposal a considerable amount of material and recommendations made by a joint parliamentary committee, the Pepin-Robarts Task Force, several federal-provincial conferences, a special Senate committee and numerous briefs and testimony by authorities and experts in the past ten years?

If we had applied this method 50 years ago, after the Statute of Westminster, and had immediately enacted a Canadian Constitution, then the Parliament of the United Kingdom would have had no recourse but to repeal the B.N.A. Act. This would have been easier at that time, because Canadians were not faced with the problem of separation in Quebec, the energy issue, and western alienation, as we have today.

All these problems can be reasonably resolved by a constitutional assembly in a short period of time. I am therefore appealing to the Leader of the Government in the Senate, Senator Pcrrault, and the other two ministers in this chamber, Senator Olson and Senator Argue, to present this proposal to Prime Minister Trudeau and the cabinet. Positive action by the government will then allow Parliament to deal with the urgent problems of the economy, inflation, unemployment and energy.

[Page 2177]

Honourable senators, we cannot ignore what is happening in the other place. There is no doubt that the government is trying to rush the House of Commons to a quick vote on the resolution. The government has its own reasons for doing so. Apparently, Mr. Trudeau wants to have this measure out of Canada before the Quebec election, and have the measure voted on before the Supreme Court of Canada has a chance to rule on its legality. With closure hanging over the heads of members of the House of Commons, it may well be that the measure will be forced through in a way that will foreclose any further amendments initiated in the House of Commons.

We, on this side, are of course opposed to that process. If this resolution is to be sent to Westminster by the government majority, we should at least try to correct one of the more glaring injustices which it contains. The fact remains that there is not an adequate guarantee of equality as between men and women. Because closure is hanging over their heads, the House of Commons may not have a chance to correct this.


Honourable senators, in view of the fact that the recent Women’s Conference on the Constitution, of last February 14, demanded that the resolution should recognize equality of men and women, I move, seconded by Senator Tremblay, that the motion be amended in Schedule B of the resolution by inserting immediately after clause 28 the following:

28.1 Notwithstanding anything in this Charter, the rights and freedoms set out herein are guaranteed equally to men and women.

Hon. Royce Frith (Deputy Leader of the Government): May I ask a question of the honourable senator? Is this to replace the present clause 28?

Senator Yuzyk: It would be clause 28.1.

Hon. Stanley Haidasz: Honourable senators, it is indeed a pleasure and a privilege to take part in this debate, and also to follow our distinguished colleague, Senator Yuzyk, who has presented an amendment to which I am sure all of us will give a great deal of consideration.

However, in reply to Senator Yuzyk, I would like to say that I really do consider myself a member of a truly representative national Parliament. There are many Liberal senators from every province in this house, and in the other place the people of Canada are fully represented from coast to coast. Moreover, as the Special Joint Committee on the Constitution of Canada did hear over 100 witnesses from all parts of Canada and from a broad section of Canadian society, I think it is an insult to those Canadians who made the effort to prepare a brief, and to come to Ottawa to testify before the committee, to infer that their views and representations are not enough or worth nothing. It is also an insult to those Canadians who appeared and stated their views before the Pepin·Robarts Task Force on the Constitution, to say that their views and comments are not enough.

I would also like to add my voice to other senators in this place who have spoken so convincingly and sincerely in support of the joint resolution. I am sure there will be other senators following me who will take under consideration, and make their comments on, the amendment just moved by Senator Yuzyk and seconded by Senator Tremblay. I share the concern and strong commitment that Senator Yuzyk and other senators have for a united, strong and independent Canada. I also share some of the honourable senator’s views on the proposals which he outlined just a few moments ago, particularly the proposal in his amendment. However, I am unmoved in my conviction that Canada cannot wait any longer. We need a strong and effective national government within our federated structure, more so today than ever before, a government that can speak and act decisively for the good of all Canadians. So it is with a very happy heart and great enthusiasm that I take part in this process of constitutional reform and of renewed federalism which, for the citizens of this great country, is a noble and necessary goal and, in particular, for us as legislators, a very pressing and vital task.

One hundred and fourteen years ago the Fathers of Confederation laid the foundation of a federal structure, forged a nation and created the Dominion of Canada. The British North America Act, passed by the United Kingdom Parliament at Westminster in 1867, became the fundamental law of our country. But the amending power remained at Westminster because the federal and provincial governments failed to agree in this regard. Today, thanks to the courage and wisdom of the federal government and the co-operation and untiring efforts of the members of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, we have the opportunity—indeed, the duty—to reform the Constitution and to break that last colonial link by dealing positively with the resolution with which we have been presented.

Honourable senators, this resolution is the product of very long and painstaking work by the representatives of all the political parties in the house and all the members of the Senate from all parts of this country. There is also the input of the views held by more than 100 national and local organizations from all regions of our country, the representatives of which expressed not only their grievances at the unfair treatment they have received from time to time from some governments, some bureaucrats and some members of the powerful groups in this country, but also their aspirations for a truly just society.

The resolution proposed by the government, and subsequently amended by the special joint committee, can therefore be described as the real beginning of a truly modern Canadian Constitution, made in Canada, shaped by Canadians and meeting the needs of Canadians of today and tomorrow. This is why we should take pride in this outstanding result of the special joint committee’s labours and express our appreciation to the joint chairmen, Senator Harry Hays, my seatmate, and the honourable member for Montreal Hochelaga-Maisonneuve, Mr. Serge Joyal, who presided over 106 emotion-charged meetings.

[Page 2178]

Thanks should also go to the members who worked so patiently and diligently during the four long months of intense hearings, who studied more than 1,200 submissions from Canadians from all across this country, and who considered deeply some 76 amendments to the original draft resolution. We should also be grateful to the Minister of Justice for his exceptional flexibility, sympathy and understanding in allowing so many amendments to be presented.

I served for a short while on this committee. I consider it a real and rare privilege and an opportunity of great educational value. The entire exercise was an example of participatory democracy, and I feel that the unfavourable criticism of this committee’s work and achievement is grossly unfair.

Honourable senators, I should like to focus now on the urgency of this resolution. I believe that some of the proposals expressed by Senator Yuzyk would only further delay this constitutional debate. I do not think we can be accused of undue haste. The process of constitutional renewal has been going on for years and, in this past year, very intensely. It is obvious to all who are attuned to the realities of our country that over the past 100 years, and particularly over the past 50 years, Canada has changed socially, demographically, economically and politically.

We have today serious problems in our interprovincial, federal-provincial and inter-regional relationships. As a result, there is a feeling of alienation in many of the regions of Canada today. There is talk of isolation and even attempts at separation in some parts of the country. The recent energy disagreement, which is a pressing problem that must be resolved quickly, is another reason why we should proceed apace with this resolution; otherwise we face a national tragedy.

I am sure that honourable senators will agree that the national policy reflected in the British North America Act of 1867 is obsolete. However, progress constitutionally has been very slow and very little. From time to time over the past 50 years there were efforts to restructure our system in a way that would meet the needs of modern Canada. But superficial, cosmetic surgery is not enough: we need fundamental reforms to meet the challenges of profound change and the urgent needs that are facing our country.

We need, of course, new legal means to solve our burning problems and we must not forget, above all, the promise of constitutional reform or, of federal renewal when we urged the people of Quebec to say “no” to Premier Levesque’s proposal in the referendum of May 20, 1980. In their hour of decision, our fellow countrymen in Quebec chose Canada. They did not choose colonialism, or the status quo, or procrastination, as some people want. Our commitments were made in good faith, and the Parliament of Canada is fully capable of realizing that promise and of honouring that commitment.

The Speech from the Throne, at the opening of the Thirty-second Parliament, had this to say:

Because my Government wants to strengthen the spirit of Canadian unity and nurture the seeds of renewal, it promises to interpret a vote of “no” to sovereignty-association as a vote for the rebuilding of the Canadian federation. My Government also promises to give effect to a “no” vote by mobilizing all the forces at its command in order to ensure the renewal of the Federation in a spirit of respect and justice for all.

Senator Flynn: And respect for the provinces, I suppose.

Senator Haidasz: Honourable senators, in recalling this statement, we must realize that we promised constitutional renewal without delay, without excuse and without hesitation. Moreover, the repeated failure of federal-provincial attempts to reform the Constitution is a national shame. The September 1980 First Ministers’ Conference was a most bitter disappointment especially after the exhaustive discussions and negotiations which took place in the early part of last year. Most Canadians are convinced that the provincial premiers’ goal of unanimity on a substantive constitutional package is illusory and, as Senator Croll said earlier this week, an impossible dream. Their continual disagreement is an intolerable situation. Time is fast running out. We cannot wait any longer, and that is why we must act now.

Senator Flynn: You mean Mr. Trudeau.

Senator Haidasz: Mr. Trudeau has acted, and now it is time for us to act.

The resolution before us goes a long way towards satisfying our need for constitutional reform. Its major features are patriation, the Victoria amending formula, equalization, and a Charter of Fundamental Rights and Freedoms. What is wrong with that? Are you against it? The desirability for patriation has already been amply explained and supported by the great majority of spokesmen in this place. It is, rather, the legality of the process of patriation that some have questioned.

Honourable senators, it has been clearly demonstrated that the resolution of the Senate and the House of Commons is the only legal way to patriate the Constitution, and the only way that an amendment to our Constitntion can be passed.

Furthermore, the United Kingdom Parliament has been recognized as having the legal power to legislate constitutions for Canada ever since 1774, when the Quebec Act was passed. The U.K. Parliament enacted the B.N.A. Act in 1867 and later made 21 amendments. The Statute of Westminster, 1931 specifically preserved the power of the United Kingdom Parliament to amend the B.N.A. Act.

Some senators support the provinces’ contention that, on the basis of past practices in connection with the amendment of the Constitution, there should be unanimous consent of the provinces before the Senate and the House of Commons request the amendments set out in this resolution. Some have argued that, in the absence of such unanimous agreement, the present procedure is not only inconsistent with constitutional conventions but is also, for that reason, illegal. In reply to those arguments, it must be said that past practices were not consistent and none dealt with patriation or the entrenchment of a Charter of Rights and Freedoms.

[Page 2179]

As I mentioned earlier, 21 amendments were made to the B.N.A. Act by the United Kingdom Parliament, and on three occasions—in 1893, 1927 and 1950—minor amendments, for statute revision purposes, were made on the sole initiative of the United Kingdom Parliament. In all other cases involving more substantial amendments, a request was made by the Government of Canada or by the Canadian Parliament. In no case has the U.K. Parliament refused an amendment because the consent of the provinces had not been obtained, nor has it accepted an amendment upon a provincial request.

As for the conventions, these change with circumstances. Even if one can say there is a convention requiring unanimous provincial agreement in constitutional matters, all attempts to get such agreement over the past 54 years have failed. The record has shown clearly that the objective of unanimity has proven to be impossible to achieve. Furthermore, all honourable senators know that conventions are not rules of law, but rules of politics.

In any event, doubts as to the constitutional propriety of an amendment now being requested by the Senate and the House of Commons of Canada without provincial consent were recently removed by a historic and monumental decision of the Manitoba Court of Appeal. Even the dissenting judges agreed that there is no historical evidence of a convention requiring provincial consultation and consent.

As regards an amending formula, we all know that is necessary once we have patriated the Constitution. The government has chosen the Victoria formula. Although it is not a perfect formula, it is the only one which received the approval of all 11 first ministers in 1971. According to this formula, the provinces will have, from now on, a legal say in the process of amending our Constitution.

Honourable senators, the legitimate interests of all the people in our country, no matter in which place they may reside, should always be the concern of the national government.

The chief Tory spokesman, the Leader of the Opposition in the other place, and some premiers envision Canada to be a country that is a community of communities, a loose association of provinces, free from the ties of a national economic fabric and free from a dedication to sharing. This they should not be entitled to in our Constitution. To reach an agreement on constitutional reform, we should never barter the fundamental rights and freedoms of Canadians.

Honourable senators, when we recall the violations of human rights that have been perpetrated upon humanity during the last 40 years, it is astonishing, indeed shocking, that several provincial governments are today opposed to the Charter of Rights and Freedoms contained in the joint resolution.

The Universal Declaration of Human Rights, which was adopted by the United Nations General Assembly in 1948, was the positive expression of mankind’s outrage at the atrocities of World War II, especially the attempted genocidal extermination of people in Nazi death camps.

I would recall, at this moment, what two great champions of human rights have said on this important matter. First, I would like to quote from the encyclical of Pope John XXIII, Pacem in Terris, which stated:

—in the judicial organization of states in our times the first requisite is that a charter of fundamental human rights be drawn up in clear and precise terms and that it be incorporated in its entirety in the constitution.

The present reigning pope, Pope John Paul II, said on a recent visit to the Philippines:

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

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

Human rights are paramount.

Over the past 33 years human rights have become an important cornerstone of Canadian domestic and foreign policies. Abroad, Canada has ratified the major international convenants and protocols on fundamental rights and freedoms. At home, it was in 1947 that the first Joint Committee of the Senate and the House of Commons on Human Rights was established to study the United Nations Declaration of Human Rights and to see what we could do about it in Canada.

Today, Canadian provinces have enacted statutes on human rights following the good example shown by the government of Tommy Douglas in Saskatchewan. Today, almost all provinces have human rights legislation and have established human rights commissions, and some provinces even have the office of ombudsman in operation.

In the federal sphere, we have the 1960 Bill of Rights promoted by a former Prime Minister, the late John G. Diefenbaker, which was enhanced by a Liberal member of Parliament when he introduced in committee an amendment referring to the supremacy of God.

I distinctly recall also the Right Honourable Pierre Elliott Trudeau, when, as Minister of .Justice in 1968 at a federal-provincial conference, he stated that there should be an entrenchment of a Canadian Charter of Human Rights. Since that day I have learned to have great respect for that man.

In 1975 Canada signed the Helsinki Final Act, which embodies human rights principles. In 1977 the government of Mr. Trudeau sponsored the Canadian Human Rights Act and established a privacy commissioner and a Human Rights Commission.

Today, in this joint resolution before us, we seek to improve upon the existing measures of human rights by ensuring that there will be in Canada a constitutional bulwark which will protect all the people of Canada under every jurisdiction against all arbitrary violations of their rights on the part of any government or any body or any company or any organization.

[Page 2180]

The entrenchment of a Charter of Rights would preclude Parliament, or any provincial legislature, from altering or abolishing constitutionally entrenched rights or provisions unilaterally. Any change to the charter would require a constitutional amendment in accordance with a constitutionally established amending formula. Canadians would therefore be fully protected against arbitrary legislative action.

True, Canadians are a freedom-loving and tolerant people; nevertheless, there have been occasions in Canadian history when various federal and provincial governments have violated the rights of Canadians. I will just mention a few, such as: the expulsion or internment of many Japanese Canadians during World War II; the treatment accorded to the press by the Alberta government of Premier Aberhart in 1937, when he attempted to force the press to print government versions of events; and the infamous padlock law, enacted under Quebec’s Premier Duplessis, which provided that buildings could be closed or padlocked if the Quebec attorney general deemed they were being used for undesirable purposes.

Under an entrenched Charter of Rights, such actions would no longer be permissible, and no federal or provincial government could use temporary shifts in public opinion as a guise for justifying the harrassment or arrest of persons considered troublesome by those in authority.

If the provincial governments are sincere in their claim that they would only seek to enhance rights legislation and not detract from it, they should have no logical grounds for opposing entrenchment, for entrenchment would merely provide that their commitment is sanctioned with the guarantee of constitutional certainty.

Furthermore, an important point which opponents of patriation frequently gloss over is that an entrenched Charter of Rights would in no way prevent Parliament or the provincial legislatures from providing forms of protection in addition to those already included in the charter.

Honourable senators, as for the desirability of the role of the courts in the matter of human rights, I would only like to say that, since Canada is a federal state, and the Constitution being the immutable law of the land, the courts do play the role of interpreters of the Constitution and they would also provide, in the future, greater certainty for the people of Canada, once human rights arc entrenched in the Constitution.

Another advantage of such an entrenchment is that it would serve as an important means by which Canada could live up to its international obligations. Unfortunately, the Progressive Conservative Party’s position on entrenchment is meaningless and unacceptable, as it would allow any province the opportunity of opting out of any constitutional provision, thereby creating inequality throughout Canada. Furthermore, to our dismay, the Conservative Premier of Manitoba, Mr. Sterling Lyon, rejected outright the entrenchment of a Charter of Rights and Freedoms as proposed by Mr. Trudcau. In fact, the September 1980 constitutional conference revealed that seven premiers had stated publicly at one time or another that they could not agree to any form of entrenchment of a Charter of Rights and Freedoms.

The rights included in this charter before us are fundamental. They are a minimum guarantee, and although that may place certain limitations on the powers of both federal and provincial legislatures and governments, these limitations would exist only to protect certain fundamental rights and freedoms of the individual that are recognized as essential in every advanced society.

In the way of a general summary of the desirability of the Charter of Rights and Freedoms, I would like to say that the rights and freedoms included in this charter are a statement of the very foundation of our society, and they certainly require clear expression in our Constitution. At present the rights and freedoms vary from place to place in Canada. If there is one overriding element of unity in a federal state, it should be the greatest possible measure of commonality in the recognition and protection of basic rights, so that a person moving from one place to another will be assured equal treatmen I and protection as well as an equal opportunity for a job, wherever he may come from and wherever he may decide to reside in Canada.

Furthermore, the charter does not have a centralizing effect. As I mentioned, it does not authorize any shift of power from the provincial levels of government. Section 30 of the charter clearly extends the legislative powers of any body or authority.

Specific sections of the Canadian Charter of Rights and Freedoms are so laudable and worthy of support that I should like to read them into the record. Dealing with fundamental freedoms, section 2 states:

Everyone has the following fundamental frccdoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

I will not read section 15, but it deals with equality rights, and we all know that it will forbid discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

I welcome these two sections because they are so comprehensive and because these fundamental freedoms will be enshrined in a new Constitution. It also shows how much things have changed and how liberal a society we want to be. After this charter has been passed, Canadians—no matter what their creed, race, national or ethnic origin, colour, sex, age or mental or physical disability should never be discriminated against; they should never be rejected for a job or promotion on the basis of their new rights. Canadians with non-Anglo-Celtic or non-French names should not be obliged to feel they should change their family name or alter its spelling to get a good job or a promotion or high appointment or position or

[Page 2181]

directorship in a bank or some other corporation. My brother was asked to change his name if he expected to be promoted in a big Canadian corporation, just to prove the point.

To illustrate my point further, I should like to relate some interesting episodes in early Canadian history which involved religious and ethnic features. I am doing so only because they are interesting examples and not to demean or criticize any ethnic group or province in Canada.

Around the year 1761, the first Jewish immigrant, Aaron Hart, settled in Trois-Rivières. He and his family and descendants participated in the economic and political life of their community. In 1807 his son, Ezekiel Hart, was elected to the Colonial Legislature of Lower Canada. During one sitting, after he had voted, his oath of office was questioned. Historians state that for religious and political reasons he was removed from the legislature. Ezekiel Hart was re-elected and thrown out a second time. He then ran a third time, but became discouraged and withdrew during the course of the campaign. In disgust, the Governor of Lower Canada dismissed the legislature. Happily, it was the great French-Canadian nationalist, Louis Joseph Papineau, who did a great deal to regularize the Jewish position in 1832 by granting them all the rights of citizens in Lower Canada.

Following this enlightened move, the Legislature of the United Provinces of Canada passed a law in 1851 declaring the equality of all religious groups. I think this was the first historic basis of religious equality in Canadian confederation.

I warmly welcome sections 25, 33 and 35 guaranteeing the rights, freedoms and treaty obligations of our aboriginal peoples. This recognition and affirmation will prevail over the Indian Act and other discriminatory and unfair acts of our legislatures. I think that this is a tremendous achievement. Who can be against that?

As one who has been involved in the multicultural life of our country, I enthusiastically welcome sections 14, 15, 22, 26, 27 and 28, dealing with the right to interpreters, equality rights, preservation of non-official language rights, multiculturalism, minority language education rights and rights respecting denominational and separate schools.

However, it is especially section 27 that I should like to bring to your attention at this time, just as Senator Yuzyk did a few moments ago. Section 27 states:

This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

True, our country had a multicultural society even before the Italian sailor Giovanni Caboto, referred to as John Cabot in our history books, came to Canadian shores. We had numerous Indian nations and tribes before the arrival of settlers from France, England, Germany, Poland, Italy, the Ukraine, the Scandinavian and other countries of the world. Yes, and even before Confederation, there were Canadians who did not belong to charter groups, or the two founding races, as they arc often referred to, who played a prominent role in the development of Canada.

I should like to read into the record some points about men such as Sir Casimir Gzowski who came to London in 1840. He built railways and bridges in Ontario, and even became the founder of a theological school in Toronto. For all of his works he was knighted by Queen Victoria. I should like to mention also Edward Kieszkowski who came from Poland to. St. Hyacinthe in 1840. He became a member of the legislature of Lower Canada and in 1867 represented the constituency of St. Hyacinthe as a Liberal in the first Parliament of Canada. I should also like to mention Alexandre Globensky who in 1890 was an independent member of the federal constituency of St. Eustache and Deux Montagnes. Many of these people and those who followed them gave their sweat and tears to develop Canada. Many of them also gave their blood in our wars. I want to mention Andrew Mynarski, of Winnipeg, who served with the RCAF and who was posthumously awarded the Victoria Cross for saving the lives of his fellow air crew.

Honourable senators, I cannot let this moment pass without referring to October 8, 1971, a day I so well remember and, I am sure, is well remembered by honourable senators. That was the day that the Right Honourable Pierre Elliott Trudeau announced the federal government’s official policy of multiculturalism. He stated at that time:

A policy of multiculturalism within a bilingual framework commends itself to the government as the most suitable means of assuring the cultural freedom of Canadians. Such a policy should help to break down discriminatory attitudes and cultural jealousies. National unity, if it is to mean anything in the deeply personal sense, must be founded on confidence in one’s own individual identity; out of this can grow respect for that of others and a willingness to share ideas, attitudes and assumptions. A vigorous policy of multiculturalism will help create this initial confidence. It can form the base of a society which is based on fair play for all.

It was with mixed feelings of humility and joy that I later accepted the responsibility as the first Minister of State for Multiculturalism. Although the leaders of the opposition parties, Robert Stanfield, David Lewis and Real Caouette, supported the policy and although multiculturalism struck a responsive chord in many Canadians, there was some reluctance and fear on the part of a minority who still either do not understand or refuse to understand the true meaning of that policy. Now that the enhancement of the multicultural heritage of Canadians will be entrenched in the Charter of Rights, those doubts, fears and reluctances should not be entertained in the future.

Section 27, which is an interpretive rule, will serve as a positive guide to the courts whenever our multieultural heritage is questioned. The constitutional entrenchment of multicull. uralism should contribute a great deal to giving Canadians a sense of belonging to this great country, cementing our mosaic, and thereby enhancing national identity and strength· ening Canadian unity.

Honourable senators, I recognize that the Charter of Rights and Frecdoms is neither complete nor perfect. Even the Prime

[Page 2182]

Minister stated last Monday in the other place that he wanted to bring in some amendments. I am sure that along with Senator Yuzyk there are others who would like to bring in amendments, too—perhaps myself also, if I had an opportunity: amendments to strengthen women’s rights, as Senator Yuzyk wants; amendments to strengthen equality rights and legal rights; words to protect more clearly the rights of the unborn; amendments to add property rights and economic rights; and also to add a preamble which recognizes the supremacy of God.

Honourable senators, either in the Senate or the House of Commons, since 1957 I have participated in the great debates on medicare, the Canada Pension Plan, Canadian citizenship, human rights, environmental protection, the Canadian flag, and the national anthem. However, even though they were milestones in Canadian legislative achievement, which provide pride and security for our people, it is in this debate on the joint resolution that is now before us, in the debate on the new Canadian Constitution, that we are offering Canadians more security, greater pride, and full independence.

The Fathers of Confederation forged a nation. Let us make a more just and free nation. In this resolution we are offering the Canadian people more potential to develop and to grow. We are offering them a greater destiny. The best time to seize this opportunity and challenge is the present. Honourable senators, let us take control of Canada’s destiny now.

Some Hon. Senators: Hear, hear.

On motion of Senator Macdonald, for Senator Bielish, debate adjourned.

Leave a Reply