Document Information

Date: 1980-10-30
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1980 at 1048-1080.
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SENATE DEBATES—October 30, 1980

[Page 1048]

THE CONSTITUTION

MOTION TO APPOINT SPECIAL JOINT COMMITTEE—DEBATE CONTINUED

The Senate resumed from yesterday the debate on the motion of Senator Perrault:

That the Senate do unite with the House of Commons in the appointment of a Special Joint Committee to consider and report upon the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980, and to recommend in their report whether or not such an Address, with such amendments as the Committee considers necessary, should be presented by both Houses of Parliament to Her Majesty the Queen;

That ten Members of the Senate, to be designated at a later date, act on behalf of the Senate as members of the Special Joint Committee;

That the Committee have power to appoint from among its members such subcommittees as may be deemed advisable and necessary and to delegate to such subcommittees all or any of their powers except the power to report directly to the Senate;

That the Committee have power to sit during sittings and adjournments of the Senate;

That the Committee have power to send for persons, papers and records, and to examine witnesses and to print such papers and evidence from day to day as may be ordered by the Committee;

That the Committee submit their report not later than December 9, 1980;

That the quorum of the Committee be twelve members whenever a vote, resolution or other decision is taken, so long as both Houses are represented and that the Joint Chairmen be authorized to hold meetings, to receive evidence and authorize the printing thereof, when six members are present so long as both Houses are represented; and

That a Message be sent to the House of Commons to inform that House accordingly.

Hon. George van Roggen: Honourable senators, like other members of this chamber who have preceded me, I consider it a singular honour to be able to participate in this very important debate in the Parliament of Canada. There is no question that it is one of the primary matters to come before Parliament in this generation.

[Page 1049]

The reason I rise to support the motion to refer this resolution to a Joint Committee, and to support the resolution in principle, subject to some observations I shall make later relative to what I think are desirable amendments, is in part a result of my having watched on television in Vancouver the last dominion-provincial constitutional conference for what must have been 20 or more hours. To be quite frank, I was appalled by the general attitude I detected on the part of the provincial premiers. Several of them, some by very direct statements, seem to have the general attitude that Canada consists of a collection of 10 principalities, of which they are the bosses, and that the federal government is nothing more than an agency or creature of the provinces. That is not my view of our Federation and it is certainly not the view that would be supported by a reading of history or by a simple review of the present Constitution, the BNA Act. I refer specifically to the distribution of powers in that act-that is, the senior powers being given to the federal government, as opposed to powers more logically exercised by a junior government being given to the provinces, to say nothing of the overriding powers, including the power of disallowance, being given to the federal government.

A couple of provinces did not get together and create an agency to help them run each other; some colonies got together and said, “Let’s stop being colonies and form a nation.” So, I reject the expressed view of two or three premiers that the federal Government of Canada is some sort of an agency of the provinces.

I became convinced, by the end of that conference, that if the logjam of the past many years were to be broken, it would be necessary for the federal government to take unilateral action; and subsequent to that federal-provincial conference I supported decisions that such action be taken by the federal government. Of course, one can then come to the argument as to what unilateral action should be taken and how much unilateral action. I shall endeavour to deal with those points in a moment.

What I find extraordinary is the view expressed by many people-and I do not attribute such shrill terms specifically to members of the opposition in this chamber, but certainly it has been said by some members of the opposition in the other place and by certain newspaper writers across this country—that if this present resolution is adopted, it will mean, and I quote from one newspaper writer, “the end of Canada”; that this will destroy our country.

Senator Flynn: It is just the beginning of the end.

Senator van Roggen: Let us try to analyze whether or not what we are being asked to do is indeed to arrange the end of Canada. Senator Balfour, in his speech in this debate a couple of days ago, said—and because he said he was speaking “on behalf of us” I believe he was speaking on behalf of members of the opposition, and I believe he was quoting the Leader of Her Majesty’s Loyal Opposition in the other place, Mr. Clark—that if this were a simple patriation with an amending formula, there would be no objection and we would all agree. I think most people would agree that we could not have patriation without an amending formula, because to bring it over here with the rule of unanimity still applying would put us in a worse position than we are in today, and I do not think we want that. So, if we are going to have simple patriation, we need an amending formula to go with it.

It is the position of the opposition that the amending formula to be included should be the Vancouver formula, whereas it is the position of the government in the resolution before us that it should be the Victoria formula, subject to some very imaginative and effective provisions, I would submit, for a resolution later on, in concert with the provinces, as to which of the two formulas, or which modifications or compromises between those two formulas, could be arrived at over a two-year period during which the federal government may make no alterations and during which the rule of unanimity would continue to apply. In the unlikely event that we could not arrive at an amending formula, let alone deal with any other parts of the package, in that period of time, then a logjam breaking mechanism, which seems eminently fair in the event of a continued impasse, would come into play. That is to say, the federal government would put before the people either the Victoria Charter, or such variation thereof as it feels would be most appropriate as a result of the negotiations of the intervening two years. In turn, the provinces, agreeing upon and putting forward their formula, with the public of Canada, through a referendum, would select the one they feel to be the best.

There are arguments to be made for the Vancouver Charter. As a British Columbian, I would prefer the Vancouver Charter to the Victoria Charter, as it does not leave the veto endlessly in Quebec and Ontario. However, I have some concern with the opting out provisions in it. I would like to see them developed in much greater detail before I would be willing to embrace it.

The point was made by Senator Balfour that the Vancouver Charter should be in this resolution because it was one agreed to by all of the provinces at the last conference. Well, here again I come back to my objection to the concept that simply because the provinces agree on something, it becomes the duty of the federal government to tug its forelock and say, “Aye, aye, sir.”

The Vancouver Charter was not agreed to by the federal government. What we are being asked to choose between is a formula which was agreed to by all of the provinces and the federal government—although admittedly some years ago—and then later rejected by one of the provinces, and an amending formula adopted recently by all of the provinces, or agreed to by all of them, but not by the federal government.

On a simple weigh scale, I do not think it reasonable to say that we are going to end Canada by opting for one or the other of those two formulas, especially in light of the procedures available in the two-year period following, plus the referendum logjam breaking mechanism. For that reason, I would submit that the patriation of the Constitution, in the form proposed in the resolution, is not something that could mean the end of

[Page 1050]

Canada. On that point, it seems to me that the opposition and the government are in agreement, or almost so. Therefore, we must find something else in this resolution that is going to destroy Canada, if the people who say that that is what the resolution is going to do are correct.

We will go now to the next item, which seems to be of great concern to many people. This is not the one-time, one-shot logjam breaking mechanism formula at the end of two years, but the ongoing provision for referenda to be introduced by the federal government and to be put to the people of Canada for a vote. A “Yes” vote on such a referendum would require, first, an overall majority in the country, as well as a majority in each of the regions—in other words, a similar majority from the electorate as the government would need from the provincial legislatures under section 41.

I take the position that those provisions should be amended in two respects. The first respect is that words should be found to make it clear that it is a last resort mechanism. I suspect that very rarely would anyone be put to the trouble and bother of using it for ordinary amendments. We now have this extraordinary situation of wanting to get our Constitution patriated after all of these years. Once we go down the road where amendment becomes possible on an orderly basis, we would not have to try to trade off whole packages as we have done in recent years. We could deal with one amendment at a time, as they do in the United States.

It is unlikely that agreement with at least six or seven of the provinces under the amending formula, whichever is settled on eventually, will not be capable of being found, or that situations will arise where the remaining provinces which cannot find agreement are being so badly injured that a federal government would feel that the referendum must be employed. But I would like to see words to the effect that the ordinary negotiations under section 41 have had a fair chance to be exhausted before this extraordinary mechanism could be used. I think time periods could be easily inserted to arrive at some sort of a fair formula on that—that any constitutional amendment proposed by either side would need notice to the other side, a minimum of so many months prior to an oncoming dominion-provincial conference, that if there was no agreement at that conference that no referendum could be held on a question not agreed upon at that conference until a year of further conferences had tried to resolve the issue or whatever it might be.

The second amendment I would like to see in that particular section is one to provide symmetry for the provinces. I believe that the referendum mechanism, if it is to be available for the federal government, should equally be available to a group of provinces which, for the sake of my remarks today, could be the same group of provinces which are required under section 41 to approve a constitutional amendment. So if the group of provinces so qualifying had a question that they wished to put, they could require the federal government to have a referendum at their initiative in the same way that the federal government can have a referendum at its own initiative. And so, subject to those amendments, I hardly see that this terrible bogeyman of a referendum is tantamount to destroying democracy in Canada, destroying the parliamentary system or bringing an end to the country, as many speakers and writers insist. Australia has a pretty well functioning democracy inherited from the same mother of parliaments as ours and has had referendum provisions for years. Somebody told me the other day that he thought that they had something like 23 referenda in Australia over the years, and the public had only voted in favour of three of them. That shows that the public normally has much more sense than governments, and that in a democracy you can well rely on the good sense of the voters. That is why democracy works, and that is why referenda properly regulated do not terrify me to the point that I will accept the argument that this is going to destroy the country.

Senator Flynn: It could.

Senator van Roggen: If the majority of the public in Canada wished to vote to destroy the country, I do not know what one can do about it. I simply say they are not likely to. Therefore I do not accept—and here I am arguing for myself and not for somebody else—the argument that that provision is tantamount to meaning the destruction or the end of Canada, and so there must be something else here I am to look for that involves the end or the destruction of Canada. For that reason I shall go to the next major area, which is the Charter of Rights.

I heard the most extraordinary, impassioned speeches by some of the provincial premiers—I remember Premier Lyons in particular and Premier Blakeney, who rather surprised me—on this dreadful thing of having any entrenched rights. We were going to give over the Government of Canada to the judges; we were no longer going to have supremacy of Parliament; that citizens should look to the legislatures, their elected representatives, for their protection. I will be quite frank, honourable senators. I do not want to look to my legislature in British Columbia, or any other province for that matter, for my protection. I do not want to be protected by the legislature; I want to be protected from the legislature, and I can give you a few hundred examples as to why I need such protection. I shall not bore you with them all now, but I shall refer in a few moments to a speech I gave in this chamber seven years ago on the subject.

I think it was one of the framers of the American Constitution, although I cannot say that for sure, who made the beautiful statement that when the legislature sits, no man lies safe in his bed at night. I suppose that same thing could be said of parliaments, except for the· fact that in Canada we are blessed with a bicameral system at the federal level.

Senator Flynn: That is why they want to get rid of us.

Senator van Roggen: I know, and I shall be coming to that. So we have what is called by many people, or referred to by writers in Canada, a double standard of legislative morality in this country. You can go through the provincial statutes with their unicameral legislatures and find bill after bill after bill that denies peoples’ civil rights, denies their property rights,

[Page 1051]

very often in the case of minute minorities, minorities of one, or a group of a dozen or so, or the shareholders of one company—whatever it may be, bills that were slipped into those legislatures in the last day or so before adjournment at the end of a session, cleverly hidden sections that are passed in a hurry allowing no recourse, and our courts cannot deal with them.

Senator Flynn: I have seen that here too.

Senator van Roggen: Here if we do not catch it, you can get the same thing because these civil service draftsmen try to put things of that sort in if they think they will get away with it. The same writers who mention the double standard of legislative morality in Canada on the one side say the higher standard is at the federal level. I argue that that is for two reasons: first, the federal Parliament has a much stronger searchlight on it because of the national press and because it is dealing with national legislation. Secondly, and not insignificantly, is the fact that that legislation gets some scrutiny down at this end of the hall, and they are a little more inhibited in what they send down than a provincial premier is in jamming something through a provincial legislature that he controls.

So the question of a Charter of Rights, I argue, is something that we need and that citizens need for their protection. I am aware that you can find many lawyers—and we had an excellent speech yesterday afternoon from Senator Nurgitz—on the other side of the question, and you can quote eminent jurists who feel that entrenching rights can lead to abuses. Examples can be found in the United States, and so on, but their system has always had a much more politicized judiciary than ours. On the other hand you can find an equal number of jurists and lawyers who will argue exactly the opposite. It is not an argument that we will resolve here this afternoon. I simply want to put it clearly on the record that there are many, many people who feel very strongly that to put a curb on the legislative power of some of these provincial governments, to say nothing of the federal Parliament, is something that indeed brings a degree and level of protection to the citizen that a Canadian citizen deserves, and which many Canadian citizens, including myself, would wish and want in the light of history and experience.

On June 27, 1973, as it appears in Senate Hansard, I spoke at some length on a closely related matter. I will not bore the house by re-reading the speech, as it comprises about ten pages. It was on the use of the power of disallowance by the federal government. The government of my province of British Columbia had passed a piece of legislation, one section of which referred to a number of government leases—a block of them, not one. They were leases of real property on which buildings, stores and other things had been constructed. I am not speaking of some mining leases—and mortgages were on those leases that had been given. The legislation simply provided:

Any of these leases that were not renegotiated within the next two years would be deemed to be null and void.

That was just straight theft, or threatened theft. I spoke at length saying that it was the duty of the federal government to disallow that legislation. Senator Forsey gave me a measure of support, but my honourable friend, Senator Goldenberg, argued against it, saying that the proper place for redress to that type of thing was in the province at the next election.

I simply say that when a minority of one or a small number are discriminated against by legislation, to say that three years later they can obtain redress through a general election, where the issues are entirely different, is simply not in the realm of reality. I believe they are entitled to entrenched protection.

I might say that my plea, that the government employ the power of disallowance, was not heeded by the government. The power of disallowance was not used. I knew that when I gave my speech, that had it been used that there would have been a terrible outcry from the provincial governments. I was aware of the fact that the use of the power of disallowance had fallen into desuetude in Canada, and I am also aware of the fact that provincial governments at the dominion-provincial conferences all say that the power of disallowance should be abandoned by the federal government.

I simply say that the federal government must not abandon, give away or give up the power of disallowance unless we have in its place a Charter of Rights in this country.

Mr. Justice Halloran of the Supreme Court of British Columbia, in a paper he did on the subject, said, after reviewing Magna Charta at the time of King John:

Few succeeding kings failed to try in some way to place themselves above the law. Complacent Parliaments not infrequently encourage them to do so.

An Hon. Senator: Hear, hear.

Senator van Roggen: Mr. Justice Halloran quoted Coke, who said:

Magna Charta is such a fellow that he will have “no sovereign.”

I ask those who use the expression, “The supremacy of Parliament” as an excuse for the argument that Parliament can do anything it wishes, including taking my head off—

Senator Flynn: You are supporting something that is illegal at present. That does not worry you?

Senator van Roggen: My argument is that wiser heads than mine—and I am never ashamed to quote a man like Coke—have focused their minds on the fact that simply leaving the rights of the citizen to Parliament and legislatures alone is not sufficient. So I argue on the opposite side of Senator Nurgitz that on balance—there will be anomalies; there are anomalies now—I would rather have my rights protected where I can go to a court and get redress, than rely on an election some years later, if the rights that are being taken from me are being taken from a small minority, of which I am a member, who have no say in the next election.

If the legislature is the place where rights can be properly protected, then it is perfect democracy and rule of law, I suppose, that 51 per cent of the population can vote to

[Page 1052]

decapitate the other 49 per cent. But that is not a concept I support.

Again, whether my argument to persuade honourable senators is as successful as that of the arguments of honourable senators on the other side, I am merely saying that there are two balanced and forceful arguments on this subject and therefore to entrench rights, I would argue, is no more likely to mean the end of Canada than not to entrench them.

Senator Flynn: That was never said.

Senator van Roggen: No, but that is being said by this editorial writer to whom I have been referring. I am not relating it to anything that the Leader of the Opposition has said. It is said that this package is likely to mean the end of Canada. I have been going through it, and I am wondering if part of it is going to mean the end of Canada. I have not found anything to indicate that, and I have gone through the main elements in my remarks.

I shall not bother with the entrenchment of the equalization grants. Apparently all the provinces agreed on that at the conference. I come from one of the “have” provinces and not one of the “have nots.” I am happy to have that included if it pleases everyone to have it.

I have gone through what I understand to be the main elements of the resolution, without finding such reference—at least to my satisfaction. Other people may find something by adding all these things together and saying that the sum of the whole is more than its parts. I am explaining why I support this Joint Address in principle, subject to reasonable amendments being made in committee, which I am sure they will be. I am supporting it because I cannot find in it those elements that really will mean the end of this country, or such a drastic change in our whole modus operandi that we will no longer be able to recognize Canada for what it has been.

I now come to one or two amendments that I should like to see made. In my remarks I mentioned the amendments to section 42. I would certainly hope to place before the committee, in whatever forum is open to me, to the members of this house who will be the members of that committee, a strong plea that property rights should be included with civil rights in the charter. They are not there at the moment.

I noticed that they were in Bill C-60 of two years ago. I can only assume that they have been taken out on this occasion because someone was probably afraid that it would appear to be too much of an impingement on the powers of the provinces to include property rights. Frankly, I would just as soon impose people’s property rights on the provinces as I would language rights. I will certainly see that representations are made to that end. If I do not win that argument, I will certainly continue during my lifetime to have property rights included at a later date when the matter comes up for amendment at dominion-provincial conferences, because I think it would vastly improve the situation to have that included.

I have mentioned the amendments to section 42 that I consider to be important to give it symmetry and to ensure that it is demonstrably a last resort, a logjam-breaking mechanism. That brings me to section 44, which in my opinion should be amended in three respects. The first thing that gives me trouble is that under ordinary amending procedures, not the referendum, under section 41, the method by which the Parliament of Canada and the provincial legislatures would start dealing with something, as they wouldn’t invent it out of whole cloth, would probably be by way of a matter that would come up at a dominion-provincial conference. The premiers, or some of them, and the federal government would agree that the Constitution should be changed in a certain respect, and they would then go back to their parliaments and legislatures to get the change approved.

Well, if the federal government acted quickly and brought in the necessary amending bill in the House of Commons, it is conceivable and possible, under the method drafted here, that it could come to the Senate, that we could deal with it in the chamber and committees in, say, six weeks, and then in another six weeks, if we haven’t passed it, the suspensive veto would apply and the Parliament of Canada would have ruled on that at that point. Then it conceivably could be that not one of the provincial legislatures would have dealt with it, and not even one of the provincial legislatures would have entered into debate on the subject. We as a body, which should be reflecting regional interests and provincial concerns, would not have had the advantage of listening to, watching and considering the debates in our respective legislatures on that particular subject before we were already subject to the suspensive veto. I think care should be given to finding a formula that would provide a solution to that particular, and what I consider to be a rather grave, anomaly.

Somebody will argue: How can the provincial legislatures deal with it if the federal parliament has not spoken on it. I do not know that that is a valid argument. It seems to me this is a joint process where, not unlike the United States—although there the federal people do deal with it first but then it goes around state by state over a number of years being approved by the various legislatures—the legislatures could be considering this in conjunction with the Parliament of Canada, and consideration should be given to enabling the members of the Senate to consider the debates in their legislatures.

The next item in that section that should be changed is the three-month period and for two reasons. First, I have always been in support of substantive reform of this chamber, such as Senator Roblin referred to yesterday, including a suspensive veto certainly on normal legislation, but I do not perceive the “sober, second thought” of this chamber being something that should only be addressed to the House of Commons. I believe that sufficient time has to be allowed following our deliberations. Let us say for the sake of argument that a contentious matter is debated for two weeks in the chamber, and is in committee for a month, and then we propose certain amendments or reject the matter in its entirety. It is not good enough that it just go back to the House of Commons which can then pass it over our heads in another few weeks with the whips on,

[Page 1053]

making no different arguments than they had made before, —although they may pay some attention to our arguments. My concept of a suspensive veto requires a sufficient length of time for the public to take a second look, and bring their opinion through the media to bear on members of Parliament, to bring pressure on them to consider the valid objections we may have had if they had been valid. I do not see how that process can be done adequately in three months.

If we have provisions in our own suggestions for reform of this chamber, I would hope the suspensive veto would be for six months. It would be anomalous for us· to have the most important suspensive veto, namely, on constitutional matters, a shorter suspensive veto than that on ordinary bills. I think that should be extended to six months and I feel quite strongly about that.

The remaining thing is that it is important to note that the suspensive veto is not applied to any amendment to the Constitution brought by the referendum under section 42. There is a good reason for that, and that is that a referendum cannot be initiated by the federal government without the consent of the provinces, and we are here as a regional body to give protection to the provinces or the regions, and, therefore, the consent of the Senate as well as the House of Commons must be obtained before you even have the referendum. I think that is impeccable logic and I applaud the government for that. But as Senator Flynn says that is only if the Senate is still here.

I support the principle, as all western democracies that I know of have bicameral parliaments at the senior level in one form or another, that we should in Canada maintain the bicameral system at this level of government. I believe in checks and balances and I believe that an exception should be included in section 44 so that constitutional change by suspensive veto would not apply to this house. In this way the provinces will continue to have the protection of this chamber against change of their Constitution by referenda by the House of Commons alone.

Those are the amendments that I would hope that the members of this chamber in the committee, among other amendments undoubtedly, would strenuously pursue, and subject to seeing what progress the committee is able to make on some or all of those amendments, I will reserve my support of the total package to the final stage of voting, but in this particular instance, I will be voting to send this matter to committee.

[Translation]

Hon. Martial Asselin: Honourable senators, I listened with great respect to the remarks made by our colleague, Senator van Roggen. I congratulate hin1 for the openmindedness he has shown in his interpretation of the proposed resolution we have before us. I commend him for saying ahead of time that he is prepared to agree to study certain amendments which he would endorse. When you are on the government side it is not easy to wander away from rigid party lines and to voice one’s own personal principles from time to time, as Senator van Roggen did this afternoon.

It is my turn now, honourable senators, to address the house and give my impressions, my opinion, on the measure before us. I do so with a firm conviction because I believe that this legislative measure may transform the political structure of our country.

Honourable senators, as the guardian of the rights and privileges of regions and minorities, our institution must for once speak very loudly, as the current saying goes in Quebec, to safeguard the rights and freedoms which, to my mind, this resolution would restrict or limit. So far some provincial governments have raised objections to this proposed resolution, and of course I would like you to keep that in mind because they represent 50 per cent of Canada’s population.

Senator Flynn: Maybe more.

Senator Asselin: Senator Flynn says maybe more.

Senator Flynn: Fifty-three per cent.

Senator Asselin: Fifty-three per cent. We will not fight over 3 per cent. So let us say that over 50 per cent represent the objections made by the people. Those objections are either juridical or political. The danger facing the present Liberal government is that it must meet its objectives. To do that it sets aside the basic rules of law and attempts to follow the easy and attractive path of the action it wants to take by announcing its firm intention to go to England to seek a document which belongs to Canadians.

It is of course the easy way to explain to Canadians that they should endorse this undertaking. But that undertaking would never be challenged if it were carried out within the bounds of legality and with full respect for constitutional conventions which cement this country into a federation. That is why I say that if they want to ignore the juridical basis of our federative system, in my opinion they want to build a new and very fragile system which will sap forever whatever unity is left in this country.

If we want to debate seriously this proposed resolution, we should first of all examine all aspects of its legality. There is no need to do a lot of research into the Privy Council precedents to recognize that the Canadian Federation is either a pact, an agreement, a union, or a contract which provides obligations for both parties. One of the judges of the Supreme Court of Canada whom we have always respected in Quebec— was my professor in constitutional law, and perhaps also the professor of Senator Lamontagne and Senator Flynn, as well as many others who went to Laval University—published in the Quebec Bar Review of 1943 a very interesting essay on the whole matter of federal-provincial relations in .which he quoted rulings of the Privy Council, especially the ruling in the case of A.G. for Queensland (Australia) v. Colonial Sugar Refining Co., in which the court said, in speaking about the Canadian Constitution:

[English]

—it … must be accepted as a treaty of union among the then provinces.

[Page 1054]

[Translation]

He also referred to this union in the case of Bonanza Creek Gold Mining v. The King, on page 579, and in the Labour Conventions. This phrase is also used in the following:

—the interprovincial compact to which the British North America Act gives effect.

Furthermore:

[English]

The scheme of the act passed in 1867 was thus, not to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to establish a central government in which these provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this, each province was to retain its independence and autonomy and to be directly under the Crown as its head.

[Translation]

In fact, honourable senators, the Privy Council has always aimed at maintaining intact the basic principle of the Quebec resolutions, which is to create, not a central government with unlimited powers, but rather a federal union in which the provinces remain autonomous within their own jurisdiction. This is why the claim of the federal government that it is the sole direct representative of the King has always been rejected.

If we read carefully the notes of Mr. Justice Louis-Philippe Pigeon, we must conclude that the Canadian Federation is clearly a contract binding the federal and provincial governments. If such is the case, I wonder by what right the federal government can act alone without the consent of the provinces? If it has been legally established that the Canadian Federation is based on a contract among its various components, how can this federal government legally justify its decision to patriate unilaterally the Canadian Constitution?

Since the beginning of this debate at no time have we heard those who advocate this unilateral action, raise the legal question. On the contrary, it has been said that it was only a political decision. It is an easier argument to support. They all relied on a simplistic argument to the effect that because of the lack of consensus between the provinces during the provincial-federal conferences, the federal government was justified to act in this way because there seemed to be a consensus of opinion among the Canadian people with regard to such unilateral action. It was said that the Canadian people were in favour of bringing back our Constitution from Britain. Obviously this is an easier argument, a more simplistic one to put forward. That is why the government uses it to support its political decision.

For those who carefully followed the discussion between the federal government and the provinces last summer and during the month of September at the First Ministers’ Conference, it was easy to see the scenario planned by the federal government so that the meetings and discussions between the federal government and the provinces would end up in failure. Besides, as Senator Flynn said the other day in his speech, the leaks from some Privy Council memorandum revealed a total lack of responsibility on the part of the federal government which planned ahead of time that these consultations between the two levels of government were doomed to failure. On that basis it was easier for the central government, later on, to come up with the argument for unilateral patriation. It was said in the other place, and my honourable colleagues have also mentioned it here, that basically our party does not object to the patriation of the Canadian Constitution. I believe that the majority of the Canadian provinces would not have objected to it if the Prime Minister had asked them first to patriate the Canadian Constitution and then later to discuss with them an amending formula to the Constitution. This procedure would have been faster and would not have raised any major objection.

In politics as in other areas, some standards of morality should be observed. Furthermore in political matters as in others, you cannot do indirectly what you are forbidden to do directly. This is a rule of law which is often applied in the courts.

But, having failed to come to an agreement with the provinces on the terms of an amending formula, the central government takes a unilateral action to have the government of another country agree to what it was unable to get an agreement upon here in this country. This means that the Prime Minister of Canada, to win his ·point, will set aside the opinion of governments representing 50 per cent of the Canadian people in order to satisfy his personal ambition and to make his mark in history as the one responsible for the patriation of our Constitution. Never was a better plan put forward to destroy the unity of this country than the one we are considering now. By unilaterally patriating our Constitution with an amending formula already opposed by the majority of the provinces, the central government denies the very basis of the constitutional agreement concerning the necessary participation of the provinces to bring about an amendment in the Constitution dealing with federative matters.

One will remember that in 1965, Mr. Guy Favreau, then Minister of Justice of Canada, published a white paper entitled “Amendment of the Constitution of Canada.” I am convinced that Senator Lamontagne contributed to that report.

Senator Lamontagne: You are giving me a lot of credit.

Senator Asselin: This book acknowledges that there are some conventions dealing with constitutional amendment.

The Parliament of Canada does not bring in an amendment to the Constitution directly dealing with federative relations without having previously taken the advice of the provinces and obtain their consent.

It is on the basis among others of the white paper and that statement on constitutional conventions, that the Supreme Court denied last year, as we know, to the federal Parliament the power to amend the nature of the Senate without the consent of provinces because in so doing it would interfere with federative relations and go beyond its restricted competence to amend the Constitution.

[Page 1055]

Like the federal government and the Supreme Court of Canada, several authors have acknowledged the existence of such a constitutional convention which requires the agreement of the provinces to alter federative relations.

Among them, there is Mr. Lederman, who is very well known, as a constitutional expert who with reference to the white paper recognized that those conventions make up the Canadian constitutional law on the amendment. In his opinion, we can challenge the validity of the constitutional conventions, if we refer to the Westminster Statute which in its preamble always refers us to the Imperial conferences. Some other authors agree and say that the consent of the provinces is necessary for any constitutional amendment requiring British legislation.

Honourable senators, the authors, as we note, have almost unanimously acknowledged the existence of that convention to which I have just referred. Evidently, some have reservations about its compulsory nature. Some authors are reluctant to recognize the constitutional convention as a rule of law. However, let us point out ‘again that the Supreme Court referred to the constitutional convention when it delivered its judgement on the Senate and that most authors acknowledge its existence.

It is not surprising, therefore, that the government should refuse, before submitting its patriation formula to the British government, to seek the opinion of the Supreme Court on the legitimacy of its action. The Leader of the Official Opposition in the Senate emphasized this in his remarks last Monday. If the government does not doubt the legitimacy of its action, it should act just as it did in the case of the Senate and refer the whole issue to the Supreme Court for an opinion; in case of a positive reply, it could then take the steps it is now contemplating.

But the government side is so anxious to carry out this piece of daring that it is willing to disregard all basic principles of right and justice. It is ready to behave like a colonized government, to overlook such institutions as the Supreme Court of Canada, to go directly to the British Parliament and ask for new legislations which do not reflect the will and desire of many provinces, and therefore of a great many Canadians. To act in this way, the federal government must have decided to build a Canada with a single voice, change the political and institutional framework of this country, change the meaning of the Canadian Federation, and replace this Canadian Federation with a unitary state in which the federal government will slowly and gradually take over the powers of the provinces and establish itself as the supreme state. This is precisely where I come to the argument of Senator van Roggen, and answer it. He asked how it could be said that it would mean the end of Canada, the end of our federation. If the federal government is allowed to act in that way, to go ahead without the consent or assent of the provinces, we will create a new institution in this country. It will no longer be a federation; Canada will simply become a unitary state. That is the danger Senator van Roggen overlooked in his intervention.

Furthermore, the centralizing tendency of the federal government has been obvious for a very long time. The claims and requests of the provinces have always annoyed the federal government. The provinces, according to the federal government, should become mere administrative agencies, acting simply as regional offices, and implementing the instructions of the central government. Now, honourable senators, the provinces, and especially Quebec, are not ready to renounce their obligations, especially those the present Constitution recognizes, without waging a fierce battle.

That is why we are shocked to see the attitude of a large number of Liberal members who sit in the other place and give silent approval to their government and the people of Quebec being thus humiliated publicly by the decisions of the central power. If only, in the last election, the present government and the Liberal members from Quebec had received from the people of that province the specific and clear mandate to act that way, their attitude could hardly be questioned. But, never, in the course of the last election campaign, did the Prime Minister ‘of Canada, the ministers or the Liberal members from Quebec dare bring up the issue of the Constitution. They never revealed to the people of Quebec their intention to act unilaterally with regard to the patriation of the Constitution and its amending formula.

You will therefore understand, honourable senators, that the argument of the government cannot be accepted according to which the mandate they did not seek during the last election campaign last February, was given to them as a result of the referendum held in Quebec in May 1980. Now, even though the Right Hon. Mr. Trudeau told the Quebecers, during the referendum campaign in Quebec, that voting “Non to the referendum would mean that changes would be made in the Canadian Constitution, he never did reveal his intentions concerning the changes he had in mind for the Constitution to satisfy the people of Quebec. I remember that during the referendum campaign I asked the government leader repeatedly to get the government to commit to paper what constitutional changes the Prime Minister of Canada and the ministers had in mind when they told Quebecers, Vote “No,” we promise there will be changes. Never, during the referendum campaign, was there any mention of the types of changes that would be made after the referendum to satisfy the aspirations of Quebec. During the campaign, the Prime Minister of Canada also asked the premiers of other provinces to promise Quebecers that they would accept major constitutional changes if Quebecers voted no. But never during the campaign did the Prime Minister of Canada or the provincial premiers say to Quebec that the central government would unilaterally patriate the Constitution should Quebecers vote “No” in the referendum. As I said, not to use unparliamentary language, honourable senators, Quebecers were misled and really fooled.

That is why, given this situation, the Government of Quebec, as well as all the political parties representing Quebecers, indicated their disagreement with and their objection to the central government’s approach. Now, if only the Quebec government objected, several senators might be justified in saying: “We will not bother with those objections, they come from a separatist government.” But the provincial liberal

[Page 1056]

leader, Mr. Ryan, also vigorously opposed the unilateral patriation of the Constitution. He has no qualms about saying publicly that the central government’s action is unacceptable to the Quebec liberals that he represents. Mr. Ryan, the Leader of the Liberal Party, has just realized that he too was had during the referendum campaign when he asked the Prime Minister’s support, he too was fooled because Mr. Trudeau spoke to him of changes but Mr. Ryan expected much broader and deeper changes than those Mr. Trudeau had in mind during the referendum campaign. By acting in this fashion, the Prime Minister of Canada not only misled the Quebec government but he also misled one of his allies in the referendum campaign, Mr. Ryan, the Leader of the Quebec Liberals. It is not surprising today that Quebecers are annoyed at the unilateral patriation proposal. The people of Quebec will take to the streets to show their dissatisfaction, their disapproval of the action that the federal government intends to take.

If we give such an importance to the Quebec referendum, most Quebecers will feel that they have been betrayed by the federal government. Several members have stated it since especially and—I am not inventing anything—Mr. Reed Scowen and Mrs. Chaput-Roland from the Liberal Party who went across Canada with Mr. Pepin to ask Canadians what they thought of constitutional changes. Of course, these people have realized that the promises made have not been kept.

By distorting so obviously the meaning of the referendum outcome to impose an even narrower constitutional frame citizens are being abused. The credibility of people involved in political life and that of the democratic process is being ruined. This behaviour is not only politically but it is also socially dangerous.

Honourable senators, the adding or entrenchment of individual rights and freedoms into the Canadian Constitution is likely to give it a character of immutability in an evolutive sense by preventing it from undergoing a political interpretation since it will be up to the courts to define its scope. We are aware that in other countries, the fact that these rights have been raised before the courts has often contributed to serious troubles and has placed civil authorities in a state where they were unable to repress abuses.

Last night I watched on television the debate between President Carter and Ronald Reagan. There was precisely an exchange over the issue of the entrenchment of the Equal Rights Amendment, namely the entrenchment of women’s rights into the Constitution. Mr. Reagan explained why he objected as a matter of principle to this entrenchment for as soon as these laws are included and entrenched into a Constitution they are frozen when it comes to giving them a political interpretation. One has to refer to the courts afterwards to interpret the meaning and the scope of these rights entrenched or included in such a manner.

Let us underline that all provincial assemblies are sovereign in their respective jurisdiction according to the present Constitution. They pass laws in these areas and these laws are subject to the interpretation given by our courts.

It would no longer be the case in the future. There would be a general law called the Canadian charter of rights passed unilaterally by the federal Parliament and it would overrule all laws passed by provincial assemblies. All that has been done up to now and all that will be done in the future would have to be in conformity with this act of the federal Parliament as interpreted by the Supreme Court. There we, the people from Quebec, are always in a minority position when it comes to bringing a case to it because we do not have the number of judges we should have to represent us.

You will understand above all that in the case of Quebec, it is an unacceptable proposition and that such a limitation cannot be imposed on the National Assembly of Quebec without its consent.

All the more so because it is difficult to appreciate the full impact of the consequences of those limitations since they depend on future court rulings. A first glance at current legislation in Quebec leads us to believe that many of them might be said to be unconstitutional. For instance, the electoral legislation provides that any citizen must have resided in Quebec for one full year before being eligible to vote. To my mind, that provision just might be contrary to section 3 of the future Charter of Rights. As well, several provisions of the legislation governing the financing of political parties in Quebec might be deemed to go against section 2 of the charter.

Similar uncertainty covers the regulation on placing in the construction industry, a regulation which stemmed from the recommendations of the Cliche commission and which restored a bit of order in that industry. Even in fields within Quebec’s jurisdiction, the National Assembly could find itself without full powers or even without any certainty it has every authority to enact legislation reflecting the wishes of the people. The provincial legislators would always have to act within the limits unilaterally set by the federal Parliament or with that sword of Damocles hanging over their heads. It is the perspective of a tragic loss of autonomy for the people of Quebec.

Quebecers of course just will not accept that. The Premier of Quebec expressed the same feeling over the TVA network on October 5, 1980.

But what in my opinion is a serious attack against the cultural security of Quebecers is the inclusion in the charter of linguistic rights of a provision concerning the language of education. Indeed, section 25 of the proposed Constitution Act, 1980 concerning the Canadian Charter of Rights and Freedoms states, I quote:

Any law that is inconsistent with the provisions of this charter is … inoperative and of no force or effect.

Thus, the moment this charter takes effect, any legislation or regulation in force in Quebec and governing fields to which they quite properly apply will become inapplicable inasmuch as they contradict anyone of these new constitutional provisions.

As regards the language of education, the charter of the French language states that instructions shall be given in French in all kindergartens, public primary and secondary

[Page 1057]

schools, and those under private institutions which have been declared of public interest or qualified for receiving grants. That is section 72.

Section 73 allows for exceptions to that rule. Notwithstanding section 72, the following may be taught in English, at the request of the father and the mother;

First, any child whose father or mother attended English primary school in Quebec.

Second, any child whose father or mother who, on August 26, 1977, was a resident of Quebec and attended English primary school outside Quebec.

Third, any child who, in his or her last year of school in Quebec before August 26, 1977, was legally attending an English public kindergarten or a primary or secondary school.

Fourth: The younger brothers and sisters referred to in par. c

This list of exceptions can be extended by the government, pursuant to sect. 86, sub-par. I which I quote:

The government can enact regulations to extend the application of sect. 73 to persons who can avail themselves of the reciprocal agreement concluded between Quebec and a province.

Now, Quebec cannot be denied such an important decisional power in matters pertaining to language, more particularly in the field of the language of instruction.

In his comments on this proposal, the Right Honourable Mr. Trudeau has suggested that the only result this bill would have would be to substitute the Canadian Clause for what is called the Quebec Clause. This is totally wrong. The effect would be much more pervading. In fact, the regime provided for by section 2 of the charter is such that it would practically give all immigrant children an unrestricted opportunity to attend English schools. Such a system would be so difficult to control and would breed such injustices among immigrant children that it would have to give way to the freedom of choice. We would be back to free choice and the dire conflicts that we have known in Quebec under the now defunct Bills 63 and 22.

It is no surprise that, the other day, Senator Rizzuto voiced major objections to the way immigrants will be treated under the new Charter of Rights.

I emphasize, honourable senators, that Quebec would never have accepted to join Confederation if it had not been given the guarantee that it would retain exclusive jurisdiction over language and more specifically· the language of education. Those are essential powers for our cultural security. Let them now try to take those rights away from us. The majority of Quebecers will never stand it, they will strongly react to what is regarded in Quebec as arm twisting by the central government.

Most Quebec newspapers have condemned what they consider as federal trickery, as far as language rights in the Constitution are concerned. They said:

The great fraud of linguistic rights should be denounced. Hiding behind the Official Languages Act, Mr. Pierre Elliott Trudeau enumerates the great principles and dictates his will.

He has virtue on his side, of course, since he appears to defend minority rights.

But there is a snag, honourable senators, a huge snag. In fact, the federal government struggles to defend the English-speaking people of Quebec. They do not fight for the French-speaking people of Quebec. They do not fight for the French-speaking people from the other provinces. Their proposed Charter of Rights will damage Bill 101, but would change nothing in the other provinces. It would change nothing in the other provinces, honourable senators. This charter would make sordid concessions to Ontario concerning the status of French in that province, and it requires no change, which is worse. As a matter of fact, Ontario which has supported and still supports systematically the federal government all along in the constitutional round would not be affected by the Charter of Rights. Quebec is then confronted with the power of the Ottawa-Toronto axis.

Let us take a closer look at this, honourable senators, to see what it is all about. In the area of linguistic policy, the federal documents propose two changes to begin with. There are no changes in the other provinces other than those proposed or agreed to by their governments. We know the reluctance of Ontario which once again recently denied parents of the Ottawa area their own school board. Yet in the largely francophone Ottawa area, God knows the numbers warrant it.

I read in a paper this morning that Francophones of a part of Saskatchewan, who believed their rights would be further jeopardized by this clause that would be included in the charter of rights by the federal government, have asked that representations be made so that the charter does not apply the way it is drafted.

Let us note that in Quebec Bill 101 does not contain any clause saying “where numbers warrant”. The rights of Anglophones apply everywhere in Quebec, and never has a minority been better treated than the English minority in Quebec.

A second change: the British North America Act section 133, which makes bilingualism manadatory only for the Parliaments of Ottawa and Quebec, and now for Manitoba as a result of the Supreme Court decision, would not apply to New Brunswick or Ontario.

You will recall that during the September federal-provincial conference, when the Prime Minister asked Ontario to agree to the provisions of section 133, Mr. Davis coldly replied that he would never let section 133 concern Ontario.

What did the federal Prime Minister say in his closing remarks at the constitutional conference? I guess he gave in on section 133 just to make Ontario agree with the constitutional changes he was getting ready to propose.

[Page 1058]

I think that the people of Quebec are not going to accept this either, because the Francophones in Ontario will pay too high a price for these constitutional changes.

The Machiavellian plan of the federal government to buy the conscience of the New Democratic Party is not acceptable either. No one realized that everything had been planned in advance, that Mr. Trudeau was making a statement on television, and immediately afterwards Mr. Broadbent endorsed in principle the changes proposed by the federal Prime Minister. In return, of course, the New Democratic Party asked for concessions in the natural resources field and particularly for non-renewable resources as a condition for its support of the government party. And we learned last week how the leader of the New Democratic Party has been had since he accepted from the federal government an offer which was only what now exists in the Constitution, the recognition of provincial ownership of natural resources. However, the federal government did not renounce his veto when it was required in the interest of Canadians. How many Canadians were laughing when Mr. Broadbent appeared before the Canadian public to celebrate his victory upon receiving that confirmation from the federal government and expressed the support of his party to the constitutional changes proposed by the present government.

So, we have now in the House of Commons a new political party that might be called the Democratic Liberal Party and we know that a considerable number of Liberals are feeling perfectly comfortable sleeping in the same bed with the socialists.

Honourable senators, Canada must make important constitutional changes. A constitutional renewal is essential to ensure the survival of Canada.

In 1972, when we were sitting on the Joint Committee of the Senate and the House of Commons on the Constitution, Pierre De Bane, who is now Minister of Regional Economic Expansion, and I signed a minority report in which we emphasized the urgency for English Canada to understand the aspirations of Quebec and the importance of giving the Quebec government, which represents in North America the majority of Francophones, the economic, political and cultural instruments needed to encourage the development and self-fulfillment of that Francophone majority in Canada.

The sharing of powers between the federal government and the provinces was an essential element of that constitutional renewal. We said among other things:

Our third recommendation relates to the distribution of jurisdictions between Ottawa and Quebec.

In most areas, jurisdictions are ill-defined to the extent where they are more and more intermingled. That is the situation prevailing in Canada as well as in other federated countries in the world. It is unavoidable. Indeed, it may have been possible during the last century, when States had relatively simple and few activities, to define clearly the sharing of jurisdictions, this situation is purely intellectual today and cannot in any way correspond to reality.

Modern governments are principals in civilized societies. This trend will increase steadily. From now on, in Canada, the public service represents a third of the gross national product; —and that was in 1977—in 20 years, it will amount to half the GNP. In addition, there is an interdependence and close relationship not only between the policies of the various levels of government but as well within the same level of government, not to mention continental, international and future world policies.

Finally, even if it was possible to conceive a clear division between numerous and complex powers, it would soon be outdated. For all those reasons, rather than trying to enumerate the responsibilities of each level of government—

—and that was our proposal—

—we would like to put forward a basic principle which is almost always found in all federal constitutions: The central government is empowered to act only in those areas which fall under its jurisdiction. It is the opposite in the present situation. This level of government will essentially have to specialize in balancing of the whole matter. Of course, nothing would prevent the provinces which so desire from delegating some of their powers to the central government.

If this recommendation is rejected, we fear that the Quebec-Ottawa bipolarity will get worse and that conflictual relationship between those two levels of government will decrease the tax return and result in a complete deadlock. That is the essential of our thinking.

That is what we said in 1972. I mentioned these remarks, honourable senators, to tell you that the majority of Quebecers who are against the unilateral patriation of the Constitution are not opposed to a true renewal but they do not want to see their Constitution turn towards such a highly centralizing direction. On the contrary, they want to have a say as regards the essential tools of their economic and cultural development.

Why, for instance, would Ontario own natural resources located under its territory in the Great Lakes and would Quebec be deprived of those which are located under our part of the Gulf of St. Lawrence or Hudson Bay? Why should we lose control over the export of our electricity, now that we have made alone huge efforts and big sacrifices to develop our hydro-electric resources? Why can we not get back our control over the vital sector of communications even though all provinces agree on this point?

I simply want to tell you that all political parties in Quebec agree that we should increase and not decrease the political powers of Quebec and other provinces. The cultural and the economic development of every Quebecer is at stake. We cannot develop Quebec and ensure the welfare of its people if we lack the necessary political tools. It is in this sense that the constitutional matter becomes a bread-and-butter issue, and it is important to realize it.

[Page 1059]

This constitutional renewal advocated by the vast majority of the Quebec people perhaps does meet the objectives this government has set for itself. This was felt during the discussions at the constitutional conference last September. There were two very clear visions of Canada: one, that of the federal government which considered the matter only from the point of view of the whole of Canada and wanted to establish not a renewed federal system which would have allowed the people of Quebec and of the other provinces to feel comfortable in it, but on the contrary a system more and more centralized and unitarian. Against such inflexible and unreal purpose, those who hold different views are up against difficulties the first one of which of course being any wish by the Quebec people to ascertain the fundamental dual realities of this country.

Honourable senators, I should like to ask you to join me, as a Quebecer, in turning down the proposed resolution under consideration. We must object to it because the purposes advocated by the federal government are not acceptable. It is not the wish of Ottawa to allow the provinces to get more powers. Ottawa rejects the concept by which there are two equal levels of government in Canada: on the one hand, the federal government and on the other hand, the provincial governments. For Ottawa, Quebec is not a separate entity much less the Quebec people, and the central government should hold all the significant levels of economic and political power.

Honourable senators, such a concept is not acceptable in 1980. Because the purpose and the objectives of the Fathers of the Confederation in establishing the Upper House, the Senate, was to protect regional interests and minority interests, I do not think there will be a better opportunity during this historic debate to demonstrate that the senators who sit in this house want to assume their full role. The Senate might still have to make decisions in a last-minute effort to bring the provinces and the federal government together so that they might agree on the fundamental principle of this patriation.

This is the reason why, honourable senators, as a result of the discussions which are taking place here at this time, I should like to table before the Senate an amendment. Its purpose is particularly to make it possible for senators to vote on the important role the Senate should continue to play as the protector of the regions, the protector of the minorities and therefore of the provinces. I now move, seconded by Senator Flynn:

That further debate on this motion be postponed until the Prime Minister of Canada has met with his provincial counterparts to find out if they would agree to a joint resolution providing only for the patriation of the Constitution and an amending formula similar in principle to those known as the Vancouver or Victoria Formulae.

The Hon. the Speaker: Honourable senators, we are faced with an amendment. Of course there is a main resolution which is for a referral to the committee but although the amendment has just been read, I shall read it again:

It is moved by Senator Asselin, seconded by Senator Flynn, that further debate on this motion be postponed until the Prime Minister of Canada has met with his provincial counterparts to find out if they would agree to a joint resolution providing only for the patriation of the Constitution and an amending formula similar in principle to those known as the Vancouver or Victoria formulae.

[English]

It is moved by the Honourable Senator Asselin, seconded by the Honourable Senator Flynn—

Hon. Senators: Dispense.

[Translation]

The Hon. the Speaker: Then honourable senators it is a motion to adjourn the debate. I shall have to ask for the opinion of honourable senators. Those who are in favour—

Senator Flynn: No, no, this motion is debatable.

Senator Guay: No, it is a motion to adjourn.

[English]

Senator McIlraith: Honourable senators, there has been an indication from the translator that the comment of the Leader of the Opposition a moment ago was inaudible and the translation could not be delivered in English. Could the Leader of the Opposition repeat it?

Senator Flynn: I said that this motion is debatable.

Senator Frith: The motion to adjourn is not.

Senator Flynn: It is not a motion to adjourn the debate. It is a reasoned motion to adjourn the debate to a specific time.

Senator Frith: Honourable senators, obviously we have some dispute on a matter of order. The motion is that further debate on this motion be postponed, which is a motion to adjourn the debate and we just vote on it. It is not debatable.

Senator Flynn: Where is your authority?

Senator Frith: It is your motion. Let us hear yours.

Senator Flynn: You are objecting to my motion. You arc saying it is not debatable.

Senator Frith: I am not objecting to the Leader of the Opposition’s motion. I am saying it is a motion to adjourn the debate, and such a motion is voted on immediately.

Senator Flynn: No.

Senator Frith: Yes.

Senator Guay: Question.

[Translation]

The Hon. the Speaker: Honourable senators, there certainly are differences of opinion among honourable senators with respect to the thrust of the amendment, as to whether that is an amendment or not. If it is an amendment, it certainly is not debatable. If it.is not an amendment, there could be a debate. In relation to this, Bourinot states on page 353:

[Page 1060]

[English]

—that a motion for the adjournment of the debate is not debatable, nor can it be amended. Obviously, however, such a motion, once moved and recorded is votable and must be put to the Senate.

That is what I have been given to understand.

If honourable senators wish me to look into the problem in greater depth, I will ask that the sitting be suspended and that we reconvene at 8 o’clock, in order that I can render a decision on this matter.

All honourable senators can express their views. I know that some honourable senators are experts in procedure, and therefore I can take their opinions into consideration. According to the advice I have received, this is a motion of adjournment and it should be voted on.

Some Hon. Senators: Agreed.

[Translation]

Senator Flynn: My feeling is, Mr. Speaker, that we should make a distinction. What you have just quoted from Bourinot refers merely to a motion to adjourn the debate.

[English]

You will note that section 36 makes a distinction between a motion to postpone a debate and a motion to adjourn a debate. This motion is to postpone the debate, and contains a reasoning behind it. The motion is not to adjourn the debate purely and simply, but to postpone the debate until something is done. There is a reason. It is not merely an adjournment per se. We submit to the house that we should discuss whether the reasons behind the motion are valid reasons for postponing the debate. That is the point. The mere motion to adjourn is something that is not debatable; but the motion to postpone, for a given reason, is something that is debatable. It has always been debatable, and I am quite sure that His Honour the Speaker will not be able to find a decision supporting the viewpoint held on the other side.

Senator Guay: Honourable senators, a copy of the motion which I have received says that it is seconded by Senator Roblin. If I heard correctly, Senator Asselin said that his motion was seconded by Senator Flynn.

Senator Flynn: Senator Roblin was not here.

Senator Guay: I know that, but my copy says that it is seconded by Senator Roblin. The second point that I would like to bring to the attention of honourable senators is that the French part says—and I do not have any degree in French:

Que cette motion soit ajournée.

I would submit that it does not have the same meaning in French.

Senator Flynn: Yes, it does.

Senator McIlraith: Honourable senators, perhaps we could follow the suggestion made by His Honour the Speaker. He indicated that he wanted time to make his ruling. If he does require time to make his ruling, presumably at 8 p.m., perhaps it would be convenient if we continued the debate until 6 p.m. and return at 8 p.m. and at that point the ruling could be given. In that way, we would not lose any time and we would be able to grant His Honour the courtesy which he seeks in order to consider the reasons for his ruling. It seems to me that that is the practice that has been followed in the past.

Senator Flynn: That depends very much on His Honour the Speaker. If His Honour would rather suspend the sitting at this time, I have no objection. If he wishes to continue and to reserve his decision for later, that is up to him.

Senator McIlraith: My point is that I would not wish to see time lost for a debate on this subject. I believe all honourable senators would agree that there is some desire to dispose of this matter in a reasonable time. Surely we could use the next hour to continue our debate while His Honour the Speaker is considering the reasons for his ruling.

Senator Hicks: Honourable senators, I take it that even the Leader of the Opposition agrees that if this were a motion to adjourn the debate, it would be put immediately and voted upon.

Senator Flynn: Purely and simply.

Senator Hicks: Rule 36(2), on page 10 of our rule book, says:

A motion to adjourn a debate shall be deemed to be a motion to postpone that debate to the day specified—

And it is specified:

—in the motion, or, if no day is so specified, to the next sitting day.

Surely that is evidence that a motion to adjourn is a motion to postpone, and the Leader of the Opposition—as much as I honour his views and his parliamentary expertise—is trying to make a distinction where none exists.

Senator Flynn: If it were merely the postponement to a given day, I would say that) would wish to adjourn the debate until tomorrow or until next week, without any argument attached to it, and it would be supported.

Senator Asselin: It is not debatable.

Senator Frith: Honourable senators, there are two observations that I would like to make. First, with regard to the suggestion of Senator McIlraith, the difficulty in continuing the debate is that there is, to a dangerous degree, in my opinion, an implication that this is not a motion to adjourn.

If it is a motion to adjourn, you don’t go on with the debate; you put the motion, and I urge the Speaker to make a ruling now on a very clear question. If there is any doubt, after what Senator Hicks has said, as to what this motion’s intent is, and what has to be decided, look at the French version. As Senator I Guay has said, it is: “Que cette motion soit ajournée.” That is the word. If there is any dispute as to what the words mean, that’s the word. It says, “ajournée.”

[Page 1061]

Senator Guay: You give me the translation of the word “postponement.”

Senator Frith: If we continue with the debate we are implying that for some reason this is not a motion to adjourn. I think it is clearly a motion to adjourn and should be put now, and I ask His Honour the Speaker to so rule.

Senator McIlraith: May I make a correction here? The Speaker made his ruling. He requested an opportunity to give reasons for his ruling.

Senator Frith: I understand that, but I am suggesting that there are good reasons for him to rule right now.

Senator McIlraith: He did.

Senator Frith: No, he did not. He asked for time to make the ruling. I am suggesting that there is perfectly clear evidence for him to give his ruling now, and I ask him to do so.

Senator Muir: Honourable senators—

Senator Flynn: Are you giving orders to the Speaker now?

Senator Frith: What is asked is not an order.

The Hon. the Speaker: Order.

Senator McIlraith: —in view of the fact that the Chair was kind enough to recognize me, I wish the other senators would extend the same courtesy. I would draw the Speaker’s attention to rule 36( I) which states:

—a motion shall not be received unless it is a motion to amend the question—

And certainly, honourable senators, the amendment meets those specifications. It amends the question before the chamber and, therefore, I submit with the greatest of respect that it is in order under rule 36(1).

Senator Smith: Honourable senators, may I make a very brief comment on this matter? It seems to me that this is not the equivalent of a motion to adjourn at all. Its nearest relative in parliamentary procedures is a motion to hoist consideration to a future date. That is a debatable motion, and has been debated on many occasions at great length. This is certainly not a motion to adjourn, I submit, but a motion to take into consideration at a future date, just as a six months’ hoist motion.

The Hon. the Speaker: I am not the one who drafted this resolution but the words have to mean something in French and even in English; “Je propose, seconde par …., que le debat de cette motion soit ajourné”—that the debate on this motion be postponed, adjourned.

[Translation]

Is the debate adjourned to a specific date? It is adjourned to some hypothetical events which the opposition feels might happen in the future. Now, a motion for adjournment should either specify a date or imply that the debate is adjourned to the next sitting. Provided it is a motion for adjournment. Naturally, if it is not, then we are confronted with another type of problem.

Senator Flynn: If the Deputy Leader of the Government cannot discuss what is in the motion, then, of course, I understand. But clearly, if Your Honour puts the question, then the Senate must decide whether it agrees with the reasons given. I suggest, Your Honour, that the question be taken under advisement until 8 o’clock. In the meantime, the debate can continue. And perhaps the motion can be changed to meet the objections formulated by the Deputy Leader of the Government.

[English]

Senator Frith: Does that mean that you are withdrawing this motion?

Senator Flynn: No.

Senator Frith: Well, then let us have a ruling as to whether it is to adjourn and vote on it, and you can bring some other motions at 8 o’clock if you wish.

Senator Flynn: I suggest that His Honour the Speaker can take it under advisement. Do you not agree that he can do that?

Senator Frith: Yes, he can as long as we all understand clearly that that is entirely without prejudice to his possible decision that it is a motion to adjourn and, therefore, must be put immediately. The difficulty with this procedural question is that, according to the rules, if it is a motion to adjourn it ought to be put immediately. If we continue with the debate, I want to be sure there is no question that that does not mean it is in any way with prejudice to his final decision on it.

Senator Roblin: Honourable senators, how can my honourable friend say that, if His Honour takes the matter under advisement, it is without prejudice to whatever decision he makes? That is either a self-evident fact or an insult to the Chair. I don’t know which, but I prefer to think it is a self-evident fact.

His Honour the Speaker has the right to take it under advisement and naturally when he does so he is free to make any decision he likes, and the question of prejudice does not arise. I would suggest, with all humility, that, if His Honour so decides, he can very well take it under advisement, and when that happens we usually proceed to the next item of business on the order paper. That would save any embarrassment or any problem arising from his decision later on. It has been the custom in every legislative assembly I have been in for the Speaker to take the question under advisement, and when he does we proceed to the next item of business.

Senator Theriault: Honourable senators, I contend that Senator Roblin is completely out of joint with parliamentary procedure.

I suggest, Your Honour, that you have two choices. Either you make a ruling and we vote on it, or, if you decide that you need time, then the sitting has to be postponed until you make your ruling because we cannot go on debating the main motion—the motion that is before the Senate now—as long as a decision has not been made on the amendment. I suggest, Your Honour, that you have two choices—either you put the

[Page 1062]

amendment to a vote now, or you suspend the sitting until you are prepared to make a ruling.

Some Hon. Senators: Agreed.

[Translation]

Senator Tremblay: Honourable senators, I address the Chair for the following reason: the way you expressed yourself earlier, Mr. Speaker, you seemed to attach some significance to the expression used in the French translation. Indeed, I believe there is an error in the translation. Just in case this discrepancy might have some influence when you take the matter under advisement, may I point out that were we to be overly strict when we find in our texts differences or discrepancIes between the English and the French versions we could not even discuss the proposed resolution before us because I noted several discrepancies, not only bad translations but bad translations which alter the substance of things.

So, if I may, I would say simply that the word “reporté” should have been used in French as the equivalent of the English word “postponed”. I would also suggest that we refrain from dwelling over this slight difference in the first version of the two versions of the resolution, that we adopt the same understanding attitude which we are wont to take when we spot similar discrepancies between the French and English versions, even in the bills that come before us.

Senator Asselin: Mr. Speaker, if I may, I am the sponsor of the amendment which is now before the house and it is quite possible that I made an error in translation when I used the word “ajourné”. So, if honourable senators agree, I will amend it by saying that the debate on this motion is “reporté” instead of “ajourné”. That is if I have the consent of the house.

The Hon. the Speaker: That would require unanimous consent of the House.

Senator Asselin: Yes, I am seeking consent.

The Hon. the Speaker: Is there unanimous consent to amend the resolution?

Some Hon. Senators: No.

The Hon. the Speaker: So it cannot be amended.

Honourable senators, if this were a routine debate I would make an immediate ruling. But, given the importance of this debate, I would prefer that in future this incident not be recalled as having been an excuse or a way to shift the debate or again to steer it in a direction which normally no one would want it to have.

So I will call it six o’clock and render a full ruling this evening at eight o’clock at the opening of the sitting.

Some Hon. Senators: Agreed.

The Senate adjourned during pleasure.

[English]

At 8 p.m. the sitting was resumed.

THE CONSTITUTION

MOTION IN AMENDMENT—SPEAKER’S RULING ON POINT OF ORDER

The Hon. the Speaker: I thank the honourable senators who have given me a chance to look into the problem which was posed to me.

When the sitting was suspended at 6 o’clock I endeavoured to deliberate on the motion in amendment moved by Senator Asselin and on the point of order raised thereon. The arguments that were put forward had to do with whether the motion is a motion to adjourn the debate, which is not a debatable motion, or whether it is a reasoned amendment. I thank honourable senators for the views that they expressed. The motion in amendment by Senator Asselin reads as follows:

I move, seconded by Senator Flynn, that further debate on this motion be postponed until the Prime Minister of Canada has met with his provincial counterparts to find out if they would agree to a joint resolution providing only for the patriation of the Constitution and an amending formula, similar in principle to those known as the Vancouver or Victoria formulae.

The proposition contained in the amendment is that the Prime Minister of Canada meet with his provincial counterparts to find out if they would agree to a joint resolution providing only for the patriation of the Constitution and an amending formula. After giving considerable study to the matter I have come to the conclusion that the proposed amendment is out of order for the following reason: It is not an amendment but a brand new proposal which is a substantive motion that requires one day’s notice pursuant to rule 45(1)(h). In fact it is foreign to the proposition contained in the main motion. Beauchesne’s Parliamentary Rules and Forms, Fifth Edition, citation 437, at page 155, reads as follows:

437. (1) An amendment setting forth a proposition dealing with a matter which is foreign to the proposition involved in the main motion is not relevant and cannot be moved.

(2) An amendment may not raise a new question which can only be considered as a distinct motion after proper notice.

The Honourable Senator Flynn argued that the proposed amendment is a reasoned amendment. The proposed amendment is not a reasoned amendment because a reasoned amendment is used to postpone the putting of the question on the second or third reading of a bill exclusively. When a reasoned amendment is moved to postpone the putting of a question on the second reading of a bill it must be to oppose the principle of a bill. This proposed amendment cannot be used to oppose the principle of the bill because no bill is concerned in the debate. Beauchesne, Fifth Edition, citation 434(2) page 154, reads as follows:

434. (2) reasoned amendments may only be applied against readings of bills.

[Page 1063]

Therefore, honourable senators, I declare the motion out of order, and now the debate can be resumed on the main motion.

Senator Flynn: Your Honour, I do not intend to discuss your decision but I think that normally your conclusion should have been that it is a simple motion to adjourn the debate and if that were the case the motion would be put without debate. However, if this is not the case I would respectfully appeal your ruling.

The Hon. the Speaker: The honourable senator is appealing the ruling?

Senator Flynn: Yes.

The Hon. the Speaker: Call in the senators.

Honourable senators, the question now is: Shall the Speaker’s ruling be sustained?

The ruling of His Honour the Speaker was sustained on the following division:

THE HONOURABLE SENATORS

Adams
Anderson
Barrow
Bell
Bird
Bosa
Connolly
Cottreau
Frith
Giguère
Godfrey
Graham
Guay
Haidasz
Hastings
Hicks
Lafond
Lamontagne
Lapointe
Leblanc
McElman
McGrand
McIlraith
Molgat
Olson
Perrault
Petten
Riley
Rowe
Steuart
Thériault
van Roggen
Wood—33.

NAYS

THE HONOURABLE SENATORS

Asselin
Beaubien
Choquette
Cook
Donahoe
Doody
Flynn
Fournier
Macdonald
Marshall
Muir
Murray
Nurgitz
Phillips
Roblin
Sherwood
Smith
Tremblay
Walker
Yuzyk—20.

The Hon. the Speaker: I declare the Speaker’s ruling sustained.

Senator Asselin: Honourable senators—

Senator Frith: On a point of order, I think the honourable senator has already spoken on the motion.

Senator Asselin: I have not. Are you raising a point of order?

Senator Frith: Yes. You made a motion, which was either for an amendment or for an adjournment. According to my reading of the rules you cannot speak again.

Senator Flynn: But he has not finished his speech.

Senator Frith: He made a motion and sat down. He clearly finished his speech.

The Hon. the Speaker: If his motion had been accepted he could not have spoken to it, but it has been defeated.

Senator Frith: When do we determine that he has finished his speech?

[Transaction]

The Hon. the Speaker: There is no motion.

[English]

Senator Frith: I will accept that ruling.

[Transaction]

Senator Asselin: Honourable senators, when the Speaker adjourned the debate, I was explaining to the Senate what role we should play to avoid the disintegration of Canadian unity if we accepted the resolution before us as drafted. I added that I joined in the remarks that my honourable friend Senator van Roggen made before me that if through this proposed resolution we want to prevent the government from acting alone to change the present structures of the country—

[English]

Senator van Roggen: On a point of order, we are not getting any translation.

Senator Flynn: Well, we could adjourn until tomorrow.

Senator Asselin: We are getting a translation now.

[Translation]

I was saying that I share the concern of Senator van Roggen about the possibility that some clauses of the proposed resolution could endanger Canadian unity. Senator van Roggen said that this could not be. However, Senator van Roggen referred to section 42 of the proposed resolution, which will allow the federal government, under certain circumstances and certain conditions, to go directly to the people to get a mandate on a constitutional issue by going over the head of the provinces, and I say that Senator van Roggen should realize that, by acting in this way, the federal government will change the existing political structure of our country.

I fully agree with Senator van Roggen that at the committee stage, the Senate representatives will have to be able to

[Page 1064]

propose amendments to rectify this situation, which I believe would be extremely dangerous as this provision now stands.

I also have the impression that all the senators recognize that the Senate has played in the past, and still plays in my opinion, an important role in the Canadian political structure. If I follow the reasoning of Senator van Roggen, I must say that he is quite right to wonder about the wording of section 44.

Some might say that there is no danger because this section will never be used. The Canadian government cannot possibly use it to change the structures of the Senate or to abolish the Senate. However, I believe that if we accept that the wording of section 44 be included in our statutes, in my opinion, and many others interpret it in this way, the Canadian government would be able, under the provisions of section 44, to propose amendments to the Canadian Constitution with the unanimous consent of the House of Commons if the suspensive veto of the Senate has expired, which would mean that the House of Commons could accept constitutional changes, and if the Senate, after 90 days, has not kept its suspensive veto and does not support the consensus expressed by the House of Commons, the House of Commons would then be able to pass this amendment or this bill, and it would have the force of law in the country and the proposals made by the Senate would be rejected.

The Senate has played an important role in the history of our country. I had the opportunity recently to talk with secondary school students of my area. I was telling them that the Senate has had committees on poverty, the age of retirement, sciences and child at risk. I was showing to these young people that the Senate had a role to play concerning the minorities. These studies on poverty, the age of retirement or the child at risk were aimed at these minority groups. The Senate has examined the lot of these groups to find solutions to their problems.

I take this opportunity to congratulate Senator McGrand on the excellent work accomplished by the committee entitled “Child at risk”. I have read the report of Senator McGrand. I must say that the young people and the mothers of Canada are extremely grateful for this in-depth study.

Honourable senators, what role should we play in this debate? I have the impression that we must agree to put aside any spirit of political partisanry. I believe that we. must try together to find the means that will allow all the parties involved to meet and talk to each other.

I have the impression that in spite of the efforts made by certain provincial premiers—and I am not laying the blame only on the Prime Minister of Canada—I think that the provincial premiers must also share part of the blame for a number of decisions which affect federal-provincial relations. But, in my opinion, the Senate as such can be expected to play a leading role in the current discussions.

We represent regions. We represent minorities. Recently I had an opportunity to read the speeches made by the Fathers of Confederation when they decided to create this institution.

Even if it has been said that the Senate was not created to look after the interests of the provinces, the Fathers of Confederation had divided the country into senatorial divisions and, of course, these divisions included the provinces. I would suggest that we had thus received from the Fathers of Confederation the mandate to speak for provincial interests. Now then, just what are those provincial interests? What are the interests of the country? With a view to avoiding everything that has been said about Canadian unity I think we should make every effort to urge the Prime Minister of Canada and the provincial premiers, before we adopt the proposed resolution we have under consideration, to meet again to find a modus vivendi.

During the past month and to this day the parties have said everything they had to say about federal-provincial relations. At times the Prime Minister was very hard. For their part the provincial premiers answered right back and we know what they said in the circumstances. My impression is that we should have a moratorium and that is what I suggest to you this evening. I think that is the objective we must seek during the few hours we have remaining to debate this resolution. For that reason, not wanting to annoy the government but wanting to ask you to help us define the role and the work of the Senate during the few hours we have left to discuss this project, I therefore move the following amendment:

I move, seconded by Senator Roblin, that the motion be amended as follows:

Strike all the words after Senate in the first line up to the last paragraph exclusively and replace them by the following:

“will unite with the House of Commons in the appointment of a Special Joint Committee to consider and report upon the document entitled: “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980 after the Prime Minister of Canada has met with his provincial counterparts to find out if they would agree to a Joint Address providing only the patriation of the Constitution and an amending formula similar in principle to those known as the Vancouver or Victoria formulae.”

[English]

In English, I move, seconded by Senator Roblin, that the motion be amended as follows:

Strike all the words after Senate in the first line up to the last paragraph exclusively and replace them by the following:

“will unite with the House of Commons in the appointment of a Special Joint Committee to consider and report upon the document entitled: “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980 after the Prime

[Page 1065]

Minister of Canada has met with his provincial counterparts to find out if they would agree to a joint Address providing only the patriation of the Constitution and an amending formula similar in principle to those known as the Vancouver or Victoria formulae.”

[Translation]

Honourable senators, it is not to embarrass the government that I introduce this motion. It is simply to ask you whether you might have a better solution to bring back the parties to the conference table. I feel that it is our duty to do so. It is in a non-partisan spirit that I move this motion.

Senator Molgat: Would the honourable senator allow a question?

Senator Asselin: Yes.

Senator Molgat: In his very eloquent speech, the honourable senator alluded to the responsibility of the Senate towards the provinces. However is it the opinion of the honourable senator that this responsibility should be towards the governments of those provinces or rather towards the people of those provinces?

Senator Flynn: Towards the Constitution of those provinces.

Senator Asselin: There is no mention of people in the constitution. It is the provincial governments which have been appointed to represent the people of the provinces. Of course, if I want to get in touch with the people of Quebec I will go to their duly elected government because it is this government which represents the people of Quebec. The same goes for the province of Ontario.

There are several groups among the people of course, such as the minorities, which should be helped. I said earlier that it is the responsibility of the Senate to help the minorities which are found in the provinces. But if I wanted to get in touch with a province, I would first go to its duly elected government.

Senator Molgat: I have another question. Therefore, my honourable colleague feels that he is the representative of the Quebec provincial government and not of the Quebec people. This is your position, isn’t it?

Senator Asselin: I have never said that. I said that every senator who sits here, represents the Canadian Parliament since the Senate is a branch of that Parliament. But that does not stop us from trying to achieve the objectives set for us by the Fathers of Confederation in making us the Upper House, which were to protect and preserve the rights of the minorities in the provinces and in the regions.

Senator Molgat: Yes, but once more I want to ask you if you consider yourself as a representative of the Quebec government or the Quebec people?

Senator Flynn: Of the Quebec legislature, unanimously.

Senator Molgat: Very well, you are a representative of the Quebec legislature. That is very good. We understand your position because this is your position.

Senator Asselin: We never said that. That is not the answer I gave.

Senator Molgat: You said so.

Senator Flynn: If I said so, you understood nothing.

[English]

Senator van Roggen: Honourable senators, I have a question to address to the last speaker, if he will accept one other question. I will not comment on the subject of my feeling about representing British Columbia. That does not mean I take my instructions from the Government of British Columbia. I do not.

During your remarks, senator, in the early part of your address as J wrote them down, you said, “How can the government justify its decision to patriate the Constitution unilaterally’?” As I understand the position of your party, its objection to this resolution is that it has gone too far; that it should not have included the Charter of Rights and the referendum provision. But you do support the unilateral patriation of the Constitution with an amending formula.

Some Hon. Senators: No, no.

Senator Murray: No. Read the amendment he just moved.

Senator van Roggen: I am not talking about his amendment. I am wondering if he is supporting his own party’s position or not. That is my question.

Senator Flynn: That is your interpretation, and you can keep it, if you want.

Senator van Roggen: Well, it was what Senator Balfour only two days ago in this chamber, said your position was.

An Hon. Senator: We didn’t say that.

Senator Flynn: We did not say we should go against the wishes of the province.

Senator van Roggen: Well, the word “unilateral” is the word I am addressing myself to, and my understanding of your party’s position is that you would agree to the unilateral patriation of the Constitution with an amending formula.

Some Hon. Senators: No.

Senator Flynn: No.

Senator van Roggen: Is that not correct?

Senator Flynn: No.

Senator van Roggen: Well, I am glad to hear that, because, certainly, the newspapers must have been misquoting your leader.

[Translation]

Senator Asselin: I would say this to my honourable friend, Senator van Roggen, when I started my speech this afternoon, I explained to him that legally, as its authors decided, which no one contradicts, the Canadian federation is a contract between the federal government and the provinces, and a contract entails obligations. I was discussing the matter from a legal point of view this afternoon. I said that because obligations are involved, obligations on the part of the federal government as well as that of the provinces, the federal

[Page 1066]

government must assume its obligations towards the provinces and vice versa.

I said that the federal government, in acting unilaterally, without the consent of the provinces, would commit a breach of the contract between the two parties. The federal government would not be respecting its obligations. That is why, from a legal point of view, I was opposing a unilateral patriation.

[English]

Senator Frith: Honourable senators, on a point of order. In my respectful submission, the amendment we are looking at is clearly not a motion to adjourn, as the previous one was, or as I thought it was, but—

Senator Murray: His Honour the Speaker perceived that.

Senator Frith: —the motion is precisely an amendment of the type that was ruled on by His Honour as being out of order under citation 437, at page 155 of Beauchesne’s Parliamentary Rules and Forms, Fifth Edition. I suppose this could be called a reasoned amendment, but, in any event, it is exactly what His Honour ruled was out of order, when we reassembled at eight o’clock, namely:

An amendment setting forth a proposition dealing with a matter which is foreign to the proposition involved in the main motion is not relevant and cannot be moved. That is citation 437.( 1), and if that were not enough, citation 437.(2) says:

An amendment may not raise a new question which can only be considered as a distinct motion after proper notice.

In my respectful submission, therefore, this motion has, in effect, already been ruled out of order, and my authority for that is the ruling His Honour the Speaker gave when we reassembled at eight o’clock.

Senator Flynn: I don’t know if the reason given by Senator Frith is valid, but it is quite obvious that he. does not understand what His Honour’s ruling was, because what His Honour said had nothing to do with that. It was a motion to adjourn and His Honour said we should have given one day’s notice. At any rate, I do not agree with that ruling.

In this case the proposal is to join now with the House of Commons, and we say we will join with them later on when a certain event will have taken place, and that a message be sent to that house to that effect. I cannot see that there is anything irregular there. It is obvious that the Deputy Leader of the Government, stubborn as a mule, has decided—

Senator McIlraith: Order. Order.

Senator Flynn: I said “stubborn as a mule. ” You do not think so? What expression would you suggest?

Senator McIlraith: I do not like language attacking an honourable senator personally when arguing a proposition of law and procedure in the Senate.

Some Hon. Senators: Hear, hear.

Senator Flynn: I grant you I may have allowed myself to get a little carried away. There goes the clapping machine on the other side. When we see continuous objections on questions of procedure to avoid having a proper debate of the motion before the house, it’s no surprise one gets a little over-excited. However, I will withdraw my remark.

Some Hon. Senators: Hear, hear.

Senator Guay: I compliment the honourable senator—

Senator Flynn: I would invite Senator Guay not to get into the fray.

Senator Guay: I was complimenting you for withdrawing your remark.

Senator Flynn: With all due respect, I must say that I am always afraid when Senator Guay compliments me.

There is no common measure between this amendment and the previous one. This amendment is to the motion which is before us. The other house invites us to join with them, and we say, “We will join with you when a certain event has taken place.” That is all there is to it.

Senator Frith: Honourable senators, I have nothing to add. Those are the two points of view. We should have a ruling.

Senator Roblin: Honourable senators, perhaps I may be allowed to offer a comment on the point of order raised before His Honour the Speaker takes the matter under consideration. I should like to deal with the substance of the objection raised by the Deputy Leader of the Government. He read the section on which he relies, which is section 437.(1):

An amendment setting forth a proposition dealing with a matter which is foreign to the proposition involved in the main motion is not relevant and cannot be moved.

So I suppose the issue is whether the words that have been used in the amendment are “foreign to the main motion.”

I suggest, Mr. Speaker, that they are not. They are clearly consonant with the main motion, but they involve a condition; and surely if amendments cannot be moved which offer to support a main motion under conditions, then I do not know what amendments can be used for.

It seems to me a very elementary question of parliamentary procedure that the amendment that has been moved is indeed correct. It does not contradict the main motion; it does not negative the main motion; it is not a new question in that it subsumes the main motion in any way. It is relevant to the main motion; it is a condition attached to the main motion; and it satisfies every rule I know of with respect to the propriety of an amendment to a motion such as the one we are considering here.

So I hope, sir, that you might take those observations under consideration when you rule on the matter.

Senator Rosa: Honourable senators, may I volunteer a brief opinion. Senator Roblin addressed himself to an entirely different matter. There is a rule of the Senate, namely, rule 28, which deals directly with the matter under discussion. That rule reads as follows:

[Page 1067]

A senator shall not speak more than once to any question or other matter before the Senate except in explanation of a material part of his speech in which he may have been misunderstood, and then he shall not introduce new matter.

I suggest, honourable senators, that Senator Asselin has introduced new matter in this particular instance.

Senator Asselin: No, no.

[Translation]

With your leave, Your Honour.

Senator Lamontagne: Two amendments in the same speech.

Senator Asselin: I will ask you my honourable colleague, Senator Bosa, to notice that I spoke only once and that it was the continuation of my speech; perhaps he was not here this afternoon.

Senator Guay: I was.

Senator Asselin: You were not here when His Honour the Speaker adjourned the debate. But when he adjourned the debate I still had the floor.

Senator Lamontagne: Do you have a third amendment to present for the third part of your speech?

[English]

The Hon. the Speaker: Honourable senators, in my view, this issue has been decided before.

The motion in amendment made before 6 o’clock was declared out of order and as a result Senator Asselin had the right to complete his speech on the main motion, and this is what he did. On your point that Senator· Asselin had introduced new matter, this has to be decided in the light of his new motion in amendment.

Insofar as the second motion in amendment is concerned, I reject it for the same reason given when the first motion in amendment was declared unacceptable. In the present motion in amendment the proposition is that the main motion be restricted to patriation and the amending formula. That means that you are trying to achieve what you were attempting to accomplish in the first motion in amendment.

My first ruling applies exactly in the same way to the present motion in amendment. Therefore, I declare this motion in amendment out of order.

If any honourable senator wishes to appeal, he is free to do so.

Senator Flynn: We certainly will appeal, with all due respect, Your Honour, because there is a distinct difference between the two motions. I mean, if you don’t see the difference—

The Hon. the Speaker: Yes, I see the difference very well.

Senator Flynn: Yet you say it was the same?

The Hon. the Speaker: I see now you are adding the House of Commons to the procedure.

Senator Flynn: Not at all.

The Hon. the Speaker: Yes, and the Prime Minister will meet with the provinces, but I tell you that it is a motion of the same nature as the first one even if it is different. It is of the same nature and I have to say that it is not in order.

Senator Flynn: With great respect, we will have to appeal because your ruling means that we cannot make any amendments to the motion.

Senator Frith: Question.

Senator Flynn: Appeal.

The Hon. the Speaker: Are you appealing?

Senator Flynn: Yes.

The Hon. the Speaker: Call in the senators.

Senator Frith: We don’t need to call in the senators.

The Hon. the Speaker: Call in the senators.

Senator Frith: Let’s have the question. What do we need to call the senators in for?

Honourable senators, just so it is clear, because, of course, the only record we have is what is said, we can have a vote on this now if we wish. We saw how long it took—

Senator Flynn: It will take longer this time.

Senator Frith: —for the senators on the other side to come and, as the leader said, he proposes to see that it takes longer this time. I just want to be sure that it is on the record that we are ready to have a vote on the appeal now and that he is not, and we can let the record show—

Senator Flynn: Order.

Senator Frith: —how long it took him—

Senator Flynn: Order.

Senator Frith: —to get his side back.

Senator Flynn: Order.

The Hon. the Speaker: A point of order is raised.

Senator Frith: Honourable senators—

Senator Flynn: You stubborn mule.

Senator Frith: Who is talking about being stubborn?

The Hon. the Speaker: It is my decision that is appealed, and because my decision is appealed I call in the senators.

Honourable senators, the question now is: Shall the Speaker’s last ruling be sustained?

The ruling of His Honour the Speaker was sustained on the following division:

THE HONOURABLE SENATORS

Adams
Anderson
Barrow
Bird
Bosa
Connolly

[Page 1068]

NAYS

THE HONOURABLE SENATORS

Asselin
Bélisle
Bell
Choquette
Donahoe
Doody
Flynn
Fournier
Macdonald
Macquarrie
Marshall
Muir
Murray
Nurgitz
Phillips
Roblin
Sherwood
Smith
Tremblay
Walker
Yuzyk—21.

[Translation]

The Hon. the Speaker: The Speaker’s decision having been sustained, the debate will proceed.

[English]

The Senate resumed the debate on the motion of the Honourable Senator Perrault:

That the Senate do unite with the House of Commons in the appointment of a Special Joint Committee to consider and report upon the document entitled: “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980, and to recommend in their report whether or not such an Address, with such amendments as the Committee considers necessary, should be presented by both Houses of Parliament to Her Majesty the Queen;

That ten Members of the Senate, to be designated at a later date, act on behalf of the Senate as members of the Special Joint Committee;

That the Committee have power to appoint from among its members such subcommittees as may be deemed advisable and necessary and to delegate to such subcommittees all or any of their powers except the power to report directly to the Senate;

That the Committee have power to sit during sittings and adjournments of the Senate;

That the Committee have power to send for persons, papers and records, and to examine witnesses and to print such papers and evidence from day to day as may be ordered by the Committee;

That the Committee submit their report not later than December 9, 1980;

That the quorum of the Committee be twelve members, whenever a vote, resolution or other decision is taken, so long as both Houses are represented and that the Joint Chairmen be authorized to hold meetings, to receive evidence and authorize the printing thereof, when six members are present so long as both Houses are represented; and that a Message be sent to the House of Commons to inform that House accordingly. — (Honourable Senator van Roggen).

Hon. Dalia Wood: Honourable senators, there is not one of us who is not affected emotionally by these impending decisions now before us. Each of us wants to see them settled; hopefully, procedures are the only points remaining to ease this ominous apprehension.

Honourable senators, this morning I received this letter from Christina Pringi, my 10-year-old granddaughter. It is dated October 24 and in part it says:

—I heard on the radio today that in the House of Commons there was such an uproar that it almost ended in a fist fight. I really don’t think that all this should happen just because of the Constitution. Quebec, and four other provinces want to go to court, too. I think that the only province really in for the Constitution is Ontario. Actually, I really don’t even know what a Constitution is.

Do I have some obligation other than as a soothing grandmother, who is talking to the grandchildren of today, assuring them that there will be peace in the valley and that they will inherit the land? Are we the greatest communicators or the worst? I would like to be able to promise all the youth of Canada that its Senate will work to enshrine their acquired rights, as we represent the people from every part of our great nation.

May self-serving interest be negotiated and not imposed. May political partisanship have its opportunities for expression. May regional interest be expressed and, hopefully, in the context that the whole must be larger than its parts—otherwise, these regions will ultimately become countries where self-serving interest will most certainly prevail, as it sometimes does now in this crucial debate.

His Honour and I are both native Quebecers. We both attended school there, and there the similarity ends insofar as our respective versions of history were learnt. The political leaders of our country have never come to grips with the self-serving interest of our institutions which, for one reason or

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another, have and still are working diligently to keep us on a collision course.

The great “example” is the 500-year disparity in the settlement dates by the Europeans as was taught in our day. This difference is of little consequence to Newfoundlanders, as either version favours their province as the first site explored. Let us never forget that living Father of Confederation, Joey Smallwood, and all his workers, who swung the referendum in favour of being a constituent part of Canada, be it either 500 or 1,000 years after they were recorded in modern history.

In any event, and history notwithstanding, we all saw the first human set foot on the moon, but it will be many years before geography books show the moon as part of the United States.

I submit that Canada and its history belong to present-day Canadians, as our forefathers are not now the least bit interested. Is it not then someone’s responsibility to adjust the packaging, since that need has been so effectively enunciated in the mid-twentieth century, as it was in the mid-nineteenth and mid-eighteenth?

The Treaty of Paris was signed by France, England, Spain and Portugal. Canadians were not consulted and should therefore not dwell on events of the Plains of Abraham. In spite of its ending the Seven Years” War in Europe, the acquisition of Canada by Britain would have been meaningless, since the American colonists had plans of their own, as proven some ten years later when Ben Franklin occupied Montreal. The reaction and attitude of the Canadian colonists of that time, I feel, can best be summarized by a quotation of Alfred DeCelles when he described the remarkable feat of Joseph Papineau the elder, who would carry dispatches to Governor Carleton, from Montreal to Quebec, when the country on both sides of the St. Lawrence was swarming with bands of Americans, his dispatches hidden in the hollow of his walking stick, travelling by night, the trip occupying ten days.

In 1775, the people of Canada made a choice. They opted to defend their rights obtained under the Quebec Act of 1774 (the Magna Charta of French Canadian people). As a consequence, Canada became a separate entity in British North America. This entity continues to grow, adding statutes and rights, giving more, but removing nothing, and this, honourable senators, is the spirit of entrenchment. It was won for all of us in the mid-eighteenth century on behalf of a people and not a region. Incidentally, the vote in Westminster in 1774 was 105 to 26.

Again, in the War of 1812, Canadians of Lower Canada expressed their gratitude, loyalty and courage.

By the mid-nineteenth century” Canada was being populated by peoples of many lands, the vast majority of whom came to build a new life just as present day arrivals do and certainly included in these are my own parents. It was then possible to speak in terms of English-speaking and French-speaking Canadians, who united in a common cause which was against the Family Compact and its abuses of colonial rule. History indeed has shown many joint ventures, but teachers and manipulators of history use such events to divide what should never be set asunder, namely, our common history.

We read in a letter dated December 7, 1829, by Alexander Mackenzie to John Nelson, a member of the Lower Canada Assembly, of his proposals for a union, warning that disunity among ourselves will end up only in making us conquered states. That was 150 years ago. In this same letter he refers to “Cabotia” as the name of this proposed federation. So, to my Roman senators, Bosa and Rizzuto, I say there is still hope for us .

It took about ten years of debate between Reformists and Tories before all hell broke loose in 1837. There, elements of Upper and Lower Canada decided to fight the “Coercion Bill”, and we had our Boston Tea Party, subsequently whitewashed in history as a riot by a bunch of drunks from Montgomery’s Tavern on Yonge Street, and Les Patriotes were just traitors from Lower Canada led by Louis Joseph Papineau.

This war of independence was vicious and short lived. Mackenzie and Papineau were the fathers of a new constitutional Canada. The reformists had obtained the Act of Union of 1841 and Responsible Government in 1847. Lord Elgin was stoned for enacting it.

The cost of this freedom in terms of lives, deprivation and human sufferings. when you relate it to the total population of that time, around one million, were staggering-32 dead on the scaffold” hundreds in battle, more hundreds exiled, and 1,700 charged with treason.

We never hear of a mother of Confederation, but I will submit the name of Elizabeth Lount, the widow of Samuel Lount, who was hanged with Peter Matthews on April 2, 1838. She is quoted as saying, “Canada will do justice to his memory. Canadians cannot remain long in bondage. They will be free.”

It is recorded in that period that 325 bills passed in the lower house were rejected by the upper house. Yet elections continued to be held as a façade of self-rule. The debate continued in the Imperial Parliament and I quote Glenelg, a colonial minister:

In the administration of Canadian affairs. a sufficient practical responsibility already existed without the introduction of any hazardous schemes.

That was Mackenzie’s declaration of independence. Our history, in its attempts to downplay our struggles for independence, taught French-speaking Quebecers that it was a struggle against the English people, while English-speaking Quebecers were reminded of seditious acts and general law breaking. What a dreadful pity—while both premises arc self-serving, they are nevertheless deliberately false. French and English Canadian reformers were fighting together, sometimes from the same outposts. Both wanted responsible government, and they succeeded in obtaining it for us. This is also entrenchment. Papineau campaigned vigorously in Upper

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Canada as did Mackenzie in Lower Canada. We can still do it together.

Our new Constitution has to be people-not government-oriented, and certainly not railway-oriented as our territorial sovereignty is now internationally established. While we may change our political jurisdictions and boundaries by the means established, no one part of our great country can be peddled or bartered under the guise of autonomy in self-serving attempts to make anyone part stronger than the whole.

The two cornerstones of our constitutional history, in my view, are the Quebec Act of 1774 and the Responsible Government Act of 1847. All other proclamations, great as they were, had to be built on these two. Confederation was an update adding some legislatures and their territories, while making provisions for others. It was also an update progressing with statutes of the day.

Insofar as tomorrow was concerned, provisions were made to meet our petition in Westminster. Confederation also served to institute and legalize expanding roles of government. Greater symbolism was later added by the Statutes of Westminster in 1931—another progressive compromise, or was it? As I understand it, a topic of the post-World War I Conference of 1921 was to reorganize the Empire. A plan was drafted in 1926; became a British statute in 1930; and received dominion ratification within seven years. It is an empire Constitution. It served to repudiate the Colonial Validity Act of 1865, which the B.N.A. Act must have overlooked. This little known act, when adopted, extended colonial freedom by making any colonial law a valid one, unless British legislation overruled it. An unfortunate oversight in the statute is that in disclaiming sovereignty over Canada, it failed to supply a means of our own for amending our Constitution as was enjoyed by Australia at that time. We can only amend our Constitution by reverting to the Colonial Laws Validity Act of 1865.

Honourable senators, a lot of air, water and verbiage has passed us since that time, but let us admit for a moment that we are on square one. In the meantime, we must recognize with respect and gratitude the people of Westminster, both yesterday’s and today’s. I could think of a lot worse places for Canadians to constantly delay their adolescence. We have profited in many ways from our associations and linkages. The traditions will remain. They gave us either a walking ticket or sovereignty in 1931, and we cannot seem to get used to belonging to ourselves.

There is a wrangle among provincial legislatures and, in some cases, between some legislatures and Parliament itself. The urgency is due to the potential for calamity as some of the ever-growing provincial bureaucracies speak with ominous overtones. We must urge Canadians to compromise on their polarized feelings on language rights in the Constitution. Organizations which will oppose and obstruct this entrenchment are usually a self-serving, chauvinistic minority interest. Let us again remind ourselves of our common history which is our, already entrenched, common heritage.

All federal political parties adopted the Official Languages Act, and while it may be illegal by Quebec Statutes, that will change. While only one province at this time has language legislation mitigating against the use of English, other provinces could enact similar legislation mitigating against the use of French. Only entrenchment can avert this, because I need not remind you, honourable senators, that it would be game over.

On the other hand, we may find encouragement by reading the resolution of the 220,000-strong Canadian Teachers Federation, who urge and advocate entrenching guarantees for official language rights. Also, and close to my heart, they endorse the concept of parental right to choose the language of education. This document is dated October 14, 1980. It reminded me of my more radical and energetic days when I placarded and picketed for the teaching of French in early school years. In this respect, I feel that we should opt for freedom of choice in the language of education.

Restrictive legislation among provinces does, and will continue to, create hardships for Canadians, and only the Parliament of this country should intervene and mediate. Mobility of labour and capital must be reinstituted and entrenched.

Honourable senators, in the mid-19th century, the Canadian initiative was in the British Parliament. While they received representations from Alexander Mackenzie and Bonaventure Viger, and favourably reacted accordingly, they were also thwarted by the Upper House and the Family Compact in the Canadas. The people, nevertheless, paid the price. Let us now, in this Upper House, make the people a non-partisan approach to laying and cementing our third cornerstone. We all come from provinces, and most grew up under some municipal form of government—let us get them into the act, because, as so often is the case, towns and industries with their peoples are the sidelined victims of procrastination, which is the thief of time.

By a technicality of 1931, we became a sovereign state. We were not seeking independence as such; we were just told to get lost. Perhaps we should also concern ourselves with a sense of dignity.

It is even ludicrous, after 200 years of progressive statutes written in eloquence, blood, misunderstanding and present day turmoil, that we remain today, as ever, the only sovereign nation which has to ask another nation for permission to amend its laws and raison d’etre. This is not dignity, either at home or abroad.

The irony of our situation is that several provinces wish to maintain this state of indignity, not because they are loyal to Westminster, but because they do not wish to compromise their pseudo-sovereignty with Canada.

We cannot remain a nation with split citizenship. While it is quite normal to be Montrealers, Torontonians, Trifluvians, Vancouverites, Gaspesians or even Bluenosers and Islanders, there need not be any other qualifier to our citizenship. Citizenship has to mean more than a permit to travel abroad;

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more than a perforation in a passport. Internally, the concept of citizenship is becoming more and more meaningless: mobility is restricted; property rights hampered; preferential employment practices restrict more Canadians daily; concept of a single citizenship is now meaningless.

We must, therefore, together support entrenchment of laws that would assure that all Canadians be guaranteed the right to buy a home, a farm or form a business anywhere in Canada and raise and educate their families in the language of their choice. These elements, which we took for granted, must now be enshrined so that the rights of people of Canada may never be used as pawns in bargaining for provincial powers.

We now have every human right available in the world, that is until we need them. Let us entrench them and carve them in our pre-Cambrian shield.

Senator Donahoe: Honourable senators, I move the adjournment of the debate.

Senator Frith: No.

Senator Perrault: No.

The Hon. the Speaker: It is moved by Senator Donahoe, seconded by Senator Sherwood, that the debate on the motion be adjourned until the next sitting of the Senate. Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: No.

The Hon. the Speaker: Will those honourable senators in favour of the motion please say “yea”?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators who are against the motion please say “nay”?

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion the “nays” have it.

And two honourable senators having risen.

The Hon. the Speaker: Please call in the senators.

The Hon. the Speaker: Honourable senators, it was moved and seconded that the debate on the motion be adjourned until the next sitting of the Senate.

Senator Flynn: I regret, Your Honour. The motion was to adjourn the debate.

The Hon. the Speaker: Yes. To adjourn the debate until the next sitting of the Senate. I thought I read it correctly.

Senator Flynn: I am sorry. I thought you said that the motion was that the Senate do now adjourn.

The Hon. the Speaker: Will those in favour of the motion please rise?

THE HONOURABLE SENATORS

Asselin
Choquette
Donahoe
Doody
Flynn
Fournier
Macdonald
Macquarrie
Marshall
Muir
Murray
Nurgitz
Phillips
Roblin
Sherwood
Smith
Tremblay
Walker—18.

NAYS

THE HONOURABLE SENATORS

Adams
Anderson
Barrow
Bird
Bosa
Connolly
Cottreau
Frith
Giguere
Godfrey
Graham
Guay
Hastings
Lafond
Lamontagne
Lapointe
Leblanc
McElman
McGrand
McIlraith
Molgat
Olson
Perrault
Petten
Riley
Rowe
Steuart
Theriault
van Roggen
Wood—30.

The Hon. the Speaker: I declare the motion defeated. The debate is resumed.

Senator Frith: Honourable senators, unless I misunderstand, I think that with the defeat of the adjournment motion the honourable senator loses his turn. However, since it is Senator Donahoe, and because we are all anxious to hear the distinguished former Attorney General of Nova Scotia, I withdraw that.

Senator Olson: Out of generosity.

Senator Perrault: We are a little more generous on this side.

Senator Roblin: Mr. Speaker, I am a stickler for propriety. Is it suggested that the honourable senator needs leave to speak?

Senator Perrault: Yes he does.

Senator Roblin: Section 304(2), which may be the section my friend is thinking of, does not seem to me to involve the question of order that my honourable friend opposite raised. If, having moved the amendment, one had been precluded from speaking—whether it carried or fell—what would happen to debate in this house? I myself moved the adjournment of this debate the other day and that didn’t prevent me from speaking on it when it came before us. The question of losing the vote has nothing to do with it, in my opinion. There is no statement in this section about losing or winning a vote. In any case, the

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question referred to is obviously the adjournment question; not the question of the debate.

I do not think leave is required. I should like my honourable friend to go ahead.

Senator Asselin: Do you want to use closure?

Senator Flynn: There is no decision yet, I hope. If he withdraws his objection, I would not want the Speaker to say, “With leave.” We do not want leave. We want simply to do what we have a right to do.

Senator Olson: In this situation you require leave.

Senator Flynn: No, we don’t.

Senator Perrault: Yes, you do.

Senator Flynn: No.

Senator Donahoe: Honourable senators, when I returned to my apartment yesterday I turned on the radio—

An Hon. Senator: You may never get back again.

Senator Donahoe: —and I heard that the Prime Minister of this country was out addressing western Canadians.

Some Hon. Senators: Hear, hear.

Senator Donahoe: He was saying to them, “Don’t you dare bring emotion to bear on your consideration of the Constitution of this country. The Constitution of this country must be considered in cold, relentless logic. You may not bring sentiment to it”. I thought to myself, what kind of a cold fish could get up to discuss the Constitution of this country in the circumstances that exist before us here this evening and not be moved, not feel emotion, not express himself in emotional terms. Because a man expresses himself in emotional terms, it does not in any way follow that he cannot bring to the consideration of the subject at hand—

Senator Theriault: Honourable senators, I rise on a point of order. Is the honourable senator quoting verbatim what the Prime Minister said in Saskatchewan?

Senator Flynn: That is not a point of order.

Senator Theriault: It is if he is quoting something.

Senator Asselin: No, it is not. Go ahead, Senator Donahoe.

Senator Donahoe: I thought it was perfectly clear that what I was saying was what I heard—

Senator Olson: Senator Theriault has a perfect right to ask the source of what the honourable senator is saying. He has the right to ask if it is a direct quotation, or if it is the senator’s opinion.

Senator Flynn: He should have listened. Senator Donahoe said that he heard him on television last night.

An Hon. Senator: On radio.

Senator Theriault: Honourable senators, I need no lesson from the Leader of the Opposition in the Senate. I rose on a point of order and I stated my point of order. I am concerned

when an honourable senator presumably quotes wrongly what the Prime Minister of this country has said.

Senator Asselin: That is your opinion.

Senator Donahoe: Honourable senators, if the honourable senator is concerned about knowing my source, I can tell him that my source was a radio broadcast.

Senator Olson: He wanted to know if it was a quote.

Senator Donahoe: I did not say I was quoting verbatim the words used by the Prime Minister.

Some Hon. Senators: Oh, oh.

Senator Donahoe: I do say that I was quoting with great exactitude the thought being expressed by the Prime Minister. There is no question about what he meant. He said that sentiment had no place in the consideration of the Constitution, but that it should be guided by pure logic.

Senator Theriault: That is not right.

Senator Olson: That is your interpretation of what he said.

Senator Roblin: He is entitled to it.

Senator Asselin: Yes, he is.

Senator Olson: He should not state it as a fact.

Senator Donahoe: Well, it may be my interpretation, but that is exactly what the words used by the Prime Minister conveyed to my mind.

Senator Flynn: I heard them myself.

Senator Theriault: He said—

Senator Walker: Quiet, sonny boy.

Senator Donahoe: I say, as I said before, that it occurred to me that it would have to be a pretty cold fish that would approach the matter in that way.

I said further—and I repeat—that being emotional and bringing emotion to the consideration of these great problems does not in any way detract from the fact that you may also bring logic, reason and intelligence to your consideration in arriving at your decisions as to what is right and what is wrong.

We listened this evening to some addresses in respect of the motion before us. I have always thought that the people of Upper Canada, if I may use that phrase, considered that Nova Scotia and New Brunswick were mere appendages to them; that in some way or another—

An Hon. Senator: No way.

Senator Flynn: You are waking up.

Senator Donahoe: I thought that tonight I had some confirmation of that. I listened to Senator Wood as she addressed us here a little earlier, and we had a great lesson in the constitutional history of Upper Canada, of Quebec and Ontario. She pointed out certain of the constitutional statutes which she said marked the highlights of that constitutional history. Having

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named them, she then came to the statute of 1867, the British.. North America Act.

I made a note at the time of what she said. It was that Confederation was an “updating of the constitutional rights of the Upper Canadians, and all it did,” she said, “was to add a couple of provinces, with the promise of more to come.”

Senator Olson: That is a very bad interpretation of what she said.

Senator Asselin: You may make your own speech later on.

Senator Olson: When I made a speech, you guys were interjecting every two minutes.

Senator Flynn: Why don’t you go to bed.

Senator Steuart: If you would let us adjourn, we would.

Senator Olson: Yes, I would like to go to bed.

Senator Donahoe: I do not mind the honourable senator questioning my interpretation. In fact, it wasn’t an interpretation at all. It was merely a repeating of the statement made by the Honourable Senator Wood. She said it. I did not say it, and I did not interpret it at all. All she said was that Confederation was an updating of the constitutional situation in Upper Canada and all it did was add a couple of provinces, with the promise of more.

Senator Olson: She said a lot more than that.

Senator Donahoe: Oh, I didn’t say that she didn’t say other things; but she certainly did say what I have said she said.

Senator McElman: How can you expect a proper interpretation from a party that cannot count?

Senator Donahoe: I am not interpreting it; you are interpreting it. You seem to think that it means something other than what she said.

Senator McElman: If a party cannot count to 120, how can you expect it to interpret?

Senator Donahoe: We in Nova Scotia always believed that Canada came into being because Upper and Lower Canada—or, if you prefer, Ontario and Quebec—were unable to govern themselves without arriving at a perpetual state of deadlock—

Senator Flynn: That is right.

Senator Donahoe: —and because Sir John A. Macdonald had a vision of a nation from sea to sea in which his province and the Province of Lower Canada would be predominant partners. That could only be made possible if some of the other colonies could be persuaded to join with Upper and Lower Canada. The nation which Sir John A. Macdonald envisaged was to be governed under the parliamentary system—the system that was developed over centuries in Great Britain. That was a deliberate choice by Sir John A. Macdonald and by the Fathers of Confederation, because they had before them the vision of the republican system adopted in the United States and they saw that it was in imminent danger of breaking apart by reason of the issue of slavery and the Civil War.

Representatives of the maritime provinces were, at the time, meeting in Charlottetown. They were meeting there to consider a Maritime union and the men from the Canadas joined them in Charlottetown, came in and said, “Why don’t you look farther afield? Why be content with a small local union when we offer you the opportunity to become part of a great union which can form a nation?” And so the negotiations began. They were long and they were earnest.

At a certain point the delegates met in Quebec. They sat there and they considered what form this nation which we are discussing should take, and in the course of time they passed what are now known as the Quebec resolutions. And there wasn’t anybody in on the formation and passing of those resolutions except representatives of the four colonies or four provinces, Upper Canada, Lower Canada, Nova Scotia and New Brunswick. There were no representatives of the British Crown involved; there was nobody except Canadians, as they were to become, involved in the passing of those resolutions.

Then in due course they took themselves to London. There they met and they sat and considered those Quebec resolutions and they refined them and polished them and put them into final shape.

Senator Flynn: Order.

Senator Muir: Honourable senators, if we are going to have some order in this chamber, could not Senator Hicks and Senator Olson have their meeting or their Liberal caucus outside this chamber? He has done enough heckling already of Senator Donahoe. Could they not remove themselves from the chamber to have their meeting?

Senator Donahoe: Honourable senators, at the request of those delegates the proposed British North America Act was put before the British Parliament, and as a result of its passing in 1867 Canada came into being as a Confederation. The powers of government under that act were divided between the nation and the provinces and Canada was born.

Canada clearly was the result of the agreement of the governments of four provinces to yield part of their sovereignty to a central government, and to create a confederation nation.

I would just like to say, in view of the fact that in these proposals now before us there is the suggestion that a referendum is an appropriate machinery to use in the framing and forming of a Constitution, that if there had been the use of a referendum in 1867, there never would have been a Canada because the people of Nova Scotia, at the earliest opportunity, repudiated the leaders who took them into Confederation and the new leaders made strenuous efforts to persuade the government in London to let Nova Scotia withdraw, but without success.

Senator Hicks: And New Brunswickers felt the same way.

Senator Donahoe: I suspect that is probably true. In glancing over the British North America Act the other evening, I saw mention of section 89, and in its place it said that section

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89 was repealed. Section 89, when you look for it, was a section which said, in effect, that in Ontario, Quebec and Nova Scotia writs of election were to be issued for the first election of members of the Legislative Assembly, in such form and by such persons as the Lieutenant Governors of those provinces thought fit, and addressed to the returning officer, and so on, and that the election should be held at the same time and at the same places as the election for a member to serve in the House of Commons of Canada for that electoral district.

So that is what happened. That is why the section is no longer there. It was done. The section was functus. It had performed its purpose and, being redundant, was repealed. And I don’t think they consulted all the provinces to repeal it. It was clearly a case where consultation with the provinces was unnecessary, if you were going to amend the British North America Act by repealing a section of that nature.

So they had those elections. I would like to tell the members of this chamber that in my wife’s family there has been cherished ever since that time an actual election banner which was used and displayed in the election of 1867. It was used in the constituency of Halifax. In those days there were two federal members to be elected for the constituency and three local members to be elected to the legislature. Those five men advertised together, because the elections were being held on the same day. That banner invites the people to vote for the Liberal anti-confederate candidates.

Why that banner has been in my wife’s family, and why it has been treasured, is that on it is the name of one of the two men who were candidates, and who was the first member for the constituency, Patrick Power; and Patrick Power was my wife’s great-grandfather. And among the three names of the three men who were running for the legislature was the name of Henry Balcom, and Henry Balcom was my great-grandfather.

Now, these were reasonable men. They were men who judged that, from their personal point of view, confederation would not be to their advantage and so they were against confederation. But they were, and continued to be, when their efforts to withdraw failed, good Canadians. They believed, or came to believe, that what had taken place was the formation of a nation with great potentialities and great capabilities.

They brought sentiment to bear in their attitude towards that confederation and they brought logic to bear on it, too. So Canada, the product of negotiation and agreement between Canadians, embarked on more than a century of growth and development under the form of government selected for it by the Fathers of Confederation.

I shall not try to review the entire constitutional history of this country. Step by step the strings of colonial control were loosened, until, with the passing of the Statute of Westminster, Canada became an independent autonomous nation. The sole legislative tie that was retained was retained at the request of the provinces of Canada—which was that amendment to the British North America Act was still to be made in the Parliament at Westminster.

It is true that Britain abdicated its power to initiate such changes, and it was clear that such changes would only be made at Canada’s request. The question now is: How was that request to be made? It is pretty well understood that the B.N.A. Act will be amended only by a Joint Address of the House of Commons and the Senate, and it remains to be decided whether the consent of the provinces is a requisite.

We are now told that the consent of the provinces is not required. We are told that the Parliament of Canada can move on a unilateral basis to address the Queen or the Parliament at Westminster with a request that the British North America Act be amended.

We are also told that the British North America Act is the Constitution of Canada. We talk about repatriating the Constitution. What we mean is: bringing the British North America Act under the jurisdiction of the Canadian Parliament.

I have in my hand a book that I value. It is entitled The Amendment of the Constitution of Canada, and in gold letters on the front at the bottom I read “Honourable Guy Favreau, Minister of Justice, February, 1965.” If honourable senators open the book and look on the flyleaf they will find that it is autographed by the person who gave it to me—not by the author. It reads: “With best wishes, L. B. Pearson.” That book was given to me by the late Lester Pearson. It dealt with the Constitution of Canada and the proposals that were put forward in that year to amend it. It contains what has come to be known as the Fulton-Favreau Formula.

In my view, there is much of merit in this book, that applies to the consideration that we are now giving to the amendment of the Constitution. With the permission of honourable senators, I propose to read some sections from it.

The first quotation is from the very first chapter. It comprises approximately one page, and it begins by saying:

A constitution may be defined as the body of fundamental principles, laws and conventions by which a country is governed. These may be formally expressed, as in the case of the United States where the word Constitution refers to a specific document; or they may include both written and unwritten laws as well as conventions, as in the case in United Kingdom. The Canadian Constitution is neither one type nor the other. It is a combination of both. There is a written document, the British North America Act of 1867 which resembles the American Constitution in that it united separate British North American colonies and established for the new country a federal system of government. This document, however, did not set out in detail all the constitutional rules and conventions applicable to the new federal and provincial governments. It established executive and legislative institutions with the understanding, as stated in the preamble, that the Constitution of Canada was to be “similar in principle to that of the United Kingdom”. The reasons for this course—

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And I am still reading.

—appear to have been that the system of responsible government as practised in the United Kingdom had been well established and accepted in the British North American colonies by 1867, and included many conventions and practices that were difficult to define in a statute.

Thus, in Canada the Constitution consists in part of written material and in part of conventions or customs. The written material includes both United Kingdom and Canadian statutes, the latter including such enactments as the Succession to the Throne Act, the Senate and the House of Commons Act, the Canada Elections Act and the House of Commons Act. The more important of the applicable United Kingdom statutes form a series, known as the British North America Acts. In addition to these formal laws, there is a wide range of constitutional usages and conventions that are inherent in the system of parliamentary government this country inherited from the United Kingdom.

The principal document in the Constitution of Canada, however, is the British North America Act in 1867. This act and its amendments are collectively known as the British North America Acts, 1867 to 1964.

Now, that is a most interesting exposition of the nature of the Constitution of Canada. As I propose to go on and demonstrate from further quotations from this book, some of those conventions that form part of our Constitution related to the necessity of having conference, consultation and consent from the provinces in order to proceed with the joint resolution of the House of Commons and of the Senate to ask that the British North America Act be amended.

If one listens today to the Prime Minister of this country, one would believe that no such convention ever existed, or if it existed, it may have been binding on L. B. Pearson, it may have been binding on previous prime ministers, but it is not binding on Pierre Elliott Trudeau. The very man who is saying that that convention does not exist or has no binding force is himself a living example of the fact that he is a convention—the position which he occupies is a convention. If you look at the British North America Act, you won’t find any reference to a prime minister. You won’t find any reference to the parliamentary system of cabinet government and cabinet responsibility, but these things are all part of the way in which we are governed. They are all part of our system. They are conventions which have come down to us, and they have a binding and a real force as part of the Constitution of this country.

On page 4 of this book—and I am not going to read all of this—there is a history of the amendments to the British North America Act. I do not want to take up your time with them, but there have been in fact no fewer than 22 such amendments, or, at least, that was the number that had been effected at the time of the writing of this book.

On page 10 there follows a review of the circumstances that surrounded the passing of those 22 amendments, and I am going to read a little bit from that part of the book. It says:

The procedures for amending a constitution are normally a fundamental part of the laws and conventions by which a country is governed. This is particularly true if the Constitution is embodied in a formal document, as is the case in such federal states as Australia, the United States and Switzerland. In these countries, the amending process forms an important part of their constitutional law.

In this respect, Canada has been in a unique constitutional position. Not only did the British North America Act not provide for its amendment by Canadian legislative authority, except to the extent outlined at the beginning of this chapter, but it also left Canada without any clearly defined procedure for securing constitutional amendments from the British Parliament. As a result procedures have varied from time to time, with recurring controversies and doubts over the conditions under which various provisions of the Constitution should be amended.

Certain rules and principles relating to amending procedures have nevertheless developed over the years. They have emerged from the practices and procedures employed in securing various amendments to the British North America Act since 1867. Though not constitutionally binding in any strict sense, they have come to be recognized and accepted in practice as part of the amendment process in Canada.

In order to trace and describe the manner in which these rules and principles have developed,—

There here follows a description of those various acts which the authors say have made a contribution to the development of constitutional practice. I am not going to read all of these. I will jump to the conclusions that are made after each of them has been examined. The book says, at page 15:

The first general principle that emerges in the foregoing resume is that although an enactment by the United Kingdom is necessary to amend the British North America Act, such action is taken only upon formal request from Canada. No Act of the United Kingdom Parliament affecting Canada is therefore passed unless it is requested and consented to by Canada. Conversely, every amendment requested by Canada in the past has been enacted.

The second general principle is that the sanction of Parliament is required for a request to the British Parliament for an amendment to the British North America Act. This principle was established early in the history of Canada’s constitutional amendments, and has not been violated since 1895. The procedure invariably is to seek amendments by a joint Address of the Canadian House of Commons and Senate to the Crown.

[Page 1076]

The third general principle is that no amendment to Canada’s Constitution will be made by the British Parliament merely upon the request of a Canadian province.

This goes on to say that a number of such attempts were made but none was ever successful. I would hope that strict attention would be paid to the fourth general principle because it is a most important one. It says:

The fourth general principle is that the Canadian Parliament will not request an amendment directly affecting federal-provincial relationships without prior consultation and agreement with the provinces. This principle did not emerge as early as others but, since 1907, and particularly since 1930, has gained increasing recognition and acceptance. The nature and the degree of provincial participation in the amending process, however, have not lent themselves to easy definition.

There have been five instances—in 1907, 1940, 1951, 1960, and 1964—of federal consultation with all provinces on matters of direct concern to all of them. There has been only one instance up to the present time in which an amendment was sought after consultation with only those provinces directly affected by it. This was the amendment of 1930, which transferred to the western provinces natural resources that had been under the control of the federal government since their admission to Confederation.

I do not want to be led astray, but those are the same natural resources which belonged to the federal government and of which Nova Scotia as a partner in Confederation had a share but for which it never received any compensation when those resources were transferred to the western provinces. However, that is an aside and I didn’t really mean to make that point at the moment, but I could not resist drawing it to your attention on the way past.

Senator Hicks: Lucky for the western provinces in 1930.

Senator Donahoe: The text goes on to say:

There have been ten instances [in 1871, 1875, 1886, 1895, 1915, 1916, 1943, 1946, 1949 and 1949(2)] of amendments to the Constitution without prior consultation with the provinces—

Listen carefully, honourable senators, to this:

—on matters that the federal government considered were of exclusive federal concern.

We now know, of course, that by a later amendment those matters have been brought back to Canada. Those are matters on which the Parliament of Westminster can no longer legislate. They can be legislated directly by the Parliament of Canada because they relate only to matters of direct and exclusive federal concern and there is no valid reason for requiring the consent of the provinces in that context.

The text goes on to say:

In the last four of these, one or two provinces protested that federal-provincial consultations should have taken place prior to action by Parliament.

But, having protested, that was the end of it.

Under the 1964 amending formula, the requirements for provincial consultation and consent are for the first time clearly defined.

Under the 1980 Trudeau proposition, the requirements for provincial consultation and consent are not only not clearly defined, they are totally eliminated and disregarded.

Honourable senators, I say to you that such a procedure is unconstitutional and improper. I have no doubt whatsoever that if the legality of such a unilateral procedure were put before the courts, the courts would say such a procedure is beyond the proper competence of the federal Parliament, that the requirement for consultation and consent has become embedded in our Constitution, that it is a convention of our Constitution, that it is a part of our Constitution and that it must be followed and cannot be ignored.

What I wrote here I have not said quite the same way. What I wrote here is this: I am compelled to say that under the 1980 Trudeau procedure this entire body of accepted constitutional practice is kicked aside and rejected.

Senator Perrault: Who wrote that?

Senator Donahoe: I wrote that.

Senator Perrault: You are quoting yourself.

Senator Donahoe: If my honourable friend had been paying attention and had not been busying himself with writing something, he would have heard that I said I had written this. Those are the words I applied to it, but I used other words. I shall repeat it in case my honourable friend does not understand.

Senator Asselin: Repeat it.

Senator Donahoe: I am compelled to say that under the 1980 Trudeau procedure this entire body of accepted constitutional practice is kicked aside and rejected and, still worse, not only is the procedure going forward unilaterally, but the active dissent of provinces comprising whole regions of Canada is being mocked at and ignored.

Honourable senators, to my mind, no one yet, including Mr. Trudeau, has produced any persuasive or convincing reason for this constitutional package and why it is required, or why it is required on a timetable so restricted that it requires the use of closure in the House of Commons, although the Prime Minister began by saying that he hoped every member would have his say on the proposals. Having brought the matter forward and invited everyone to have his say, he then invoked the guillotine and saw to it that the opportunity for discussion was taken away from the floor of the House of Commons, taken away at a time when more supporters of the government had spoken to it, more time had been consumed by supporters of the government than had been consumed by the opposition, and when a very high percentage of the members of the opposition were, by use of the guillotine, deprived of the opportunity of expressing their points of view.

[Page 1077]

When the Deputy Leader of the Government rose in the Senate tonight and said that I might not have had the right to have the floor on a technicality, I was mightily relieved that he said he would not adopt the attitude which was adopted in the House of Commons, that he would not invoke what would have been, in effect, a personal closure. I do not know whether he had that right, but I do not, in any way, concede the point the deputy leader was making. However, I appreciate the generosity of spirit which led him to say that I should be permitted to have my say. I only wish that the generosity of spirit shown by the deputy leader in this chamber had been shown by the Leader of the Government in the House of Commons to those who sit on the other side of that house.

Senator Frith: Honourable senators, I rise on a point of order. First, I thank the honourable senator for what he has said. However, I suppose if I am to accept this compliment of being generous, I should tell him what the basis was for my point of order—

Senator Flynn: No; no; no.

Senator Frith: I will just put it on the record. At page 346 of Bourinot—

Senator Flynn: Order! Order!

Senator Frith: Honourable senators, I am standing on a point of order—

Senator Flynn: You cannot interrupt at this point.

Senator Frith: I am standing on a point of order, and I am entitled to make that point of order.

Senator Flynn: No, it is not a point of order.

Senator Frith: Well, let me make it before we decide that.

Senator Donahoe: We are in no hurry.

Senator Flynn: Well, if you want to discuss that, we will have a discussion.

Senator Frith: At page 346, Bourinot states as follows: If a member should move the adjournment of debate—

Senator Flynn: All right, if you are going to listen to him, listen; you will listen to me afterwards.

Senator Asselin: His Honour the Speaker is on his feet.

The Hon. the Speaker: Honourable senator, you agreed at the beginning that Senator Donahoe should speak. I know the point you want to raise, but I do not think it is proper at this stage, in that you agreed to continue the debate.

Senator Donahoe: I thank His Honour the Speaker for his ruling, because it would have been very embarrassing for me to oppose the right of the honourable senator to speak when I was just fresh from congratulating him on having given that right to me.

To my mind, no one has produced any persuasive reason why the package was required and why it was required on a timetable so restricted that it required closure in the other place. The Prime Minister first held himself out to be prepared to give the greatest opportunity for discussion and then, in a relatively brief time, invoked closure, thereby cutting off the rights of those who sought to discharge their duty.

Senator Olson: After 13 days. That must be in the record, too.

Senator Murray: Thus speaks a great parliamentarian. Thirteen days of debate!

Senator Asselin: On so important a matter. Shame!

Senator Olson: Only to refer it to committee.

Senator Donahoe: When I hear the term of 13 days being raised as though it were a consequential period of time, I am reminded of the latin maxim that I learned in law school, de minimis non curat lex, meaning the law takes no regard of trifles. In the light of the importance of the material that was under discussion, 13 days was a trifle. I cannot, by any stretch of the imagination, nor could any fair-minded person, concede that an adequate opportunity for discussion was made available in the other chamber.

Some Hon. Senators: Shame!

Senator Olson: Would 53 years be adequate time?

Senator Donahoe: Why, may I ask, does the package require the device of reference to a committee in a manner that bids fair to circumvent the right of members of the House of Commons and of the Senate to debate and vote upon amendments to the proposal? Why must it be handled in a way that bids fair to secure a Joint Address of both houses without those houses ever having been permitted to ‘address themselves directly to the question as to whether they wish such an Address with that content? I do not know why, and no one has yet given me any valid reason why that course should be followed.

I can see Senator Olson shaking his head. I know that we are assured that we will have full opportunity for debate. But we can get no assurance that the Address to Her Majesty the Queen will ever be the subject of a direct vote.

When Nova Scotia got representative government in 1758, the first of the British dominions to secure that right, the legislature was formed, and the legislature met and it debated the problems of the province, and it debated them ad nauseam. But the decisions were made by the Executive Council. Then in 1848 we got responsible government, and the legislature made the decision. But it appears to me that what is going on here is an effort to reduce Parliament to the status of a debating society, while the effective decisions are made elsewhere.

Well, the honourable senator can shake his head all he likes, but that is the way it appears to me, and I am not at all sure that it does not appear like that to any reasonable, fair-minded person who addresses himself to the question.

Honourable senators, the Canadian public is being sold a gold brick. It is in danger of being the victim of a con job, sold

[Page 1078]

to it with all the finesse of a master con artist. Why do I speak of a con job? Let us look at the reasons for proceeding as we are proceeding.

First, we are told that efforts to bring Canada’s Constitution totally under Canadian control have been going on for 53 years.

Senator Perrault: That is right.

Senator Donahoe: I am glad to hear the Leader of the Government say that that is right, because he said yesterday that it was 57 years.

Senator Perrault: Well, it feels like 57.

Senator Donahoe: Well, that is nit-picking, I suppose, but the fact remains that 53 years is the accepted term. That is what we are told. But, of course, that is a statement entirely without foundation. In fact the Constitution that we are being asked to bring under Canadian control is not the Constitution we have lived under and developed for 113 years. It is a new and different Constitution devised by Mr. Trudeau, presented for the first time only a few short weeks ago and it is a Constitution which undermines the constitutional philosophy upon which this country, our Canada, was founded and which has served it so well.

We are told that we must entrench a bill of rights. It is presented to us as though by entrenching a bill of rights we would somehow have more and better rights than we now enjoy, and the fact that in the process we are transferring legislative power to an appointed court from an elected Parliament, and an elected Parliament moreover which has an appointed regional representative upper house, that point is ignored or played down or treated as if of no importance. Finally the whole procedure is the essence of hypocrisy. It is put forward by Mr. Trudeau who has proclaimed from the house tops that it is demeaning, that it is inconsistent with our dignity as a nation, that it derogates from our sovereignty, that it is a remnant of colonialism, that Westminster should be called upon to legislate in respect of the Canadian Constitution. Don’t tell me he does not say these things, because I have heard them repeated in this very chamber in this very debate by some of those who support him here.

Having established the need for patriation and attempting to justify it with such an argument, what does he then do? You know what he does. He seeks to use the instrumentality of Westminster to place this country in the humiliating position of a colony, the position that we had thought was so far behind us in the past. And he wants to do that, not to bring back our Constitution to be dealt with in Canada by Canadians, but to destroy the basis on which the country was founded, to point it in the direction of a unitary state, to inject into our Constitution the type of codified law in which Mr. Trudeau received his legal training, and then to return this new Constitution to us full of new powers, which, in some instances, the Supreme Court has said are beyond the powers of the Canadian Parliament in the present state of the Constitution, but authority for which he will seek and hopes to secure in this enlightened, emancipated age—from, of all places, th legislature of another power.

Do you wonder that I say it is the height of hypocrisy? I say, “Shame!” There is only one proper course, and that is one that I am sure has not been attempted because Mr. Trudeau knows that it can succeed, and, if it succeeds, it will stand in the way of his achieving his ends. That way is to transfer the B.N .A. Act to Canada with an amending formula that will permit, without delay, the embarkation upon a process of reform of the Constitution under the new formula, a formula which will relieve us from what Mr. Trudeau has called “the chains of unanimity,” and give us an amended Constitution made in Canada by Canadians.

Senator Perrault: Hear, hear.

Senator Donahoe: Giving due respect—”Hear, hear!”? It is unbelievable that a sentiment of that kind could be greeted by a “Hear, hear!” from the gentleman who said those words. Unbelievable! When he is going to insist that these things that I have said ought not to be permitted will take place. He will insist not that Canadians make our new Constitution but that legislators in the Parliament at Westminster do so, and only then, when they have changed the philosophy under which our nation was formed and under which it is governed, only then will Canadians be considered fit to deal with their own affairs.

Senator Flynn: Hear, hear.

Senator Donahoe: What we need—

Senator Perrault: Do you have a problem? Do you need a doctor?

Senator Flynn: I have a problem with you.

Senator Perrault: Do you need a doctor?

Senator Flynn: You certainly need one yourself.

Senator Donahoe: What we need is an amended Constitution, one that will—

Senator Perrault: It sounds like a cattle auction.

Senator Donahoe: One that will give due respect to the needs and aspirations of all Canadians, and one that is arrived at in a truly democratic and Canadian way.

I will not go into the details of the referendum proposals or the details of the entrenched Bill of Rights or the details of the various things that are provided. Those have been thoroughly dealt with already and will be dealt with, I am sure, in even greater detail as time goes on.

But I do want to say that I had occasion to look at the Minutes of the Proceedings of the Senate, No. 50, dated the 27th of October, 1980. When I look in there, I find that on that day:

A Message was brought from the House of Commons by their Clerk in the following words: —

The message concerned a resolution that had been passed in the House of Commons to establish a special joint committee:

[Page 1079]

— to consider and report upon the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada”—

It goes on to say:

That 15 Members of the House of Commons to be designated no later than three sitting days after the adoption of this motion be members on the part of this House of the Special Joint Committee—

After that resolution was received, the resolution that we are now debating was put before this chamber. As does the other, it proposes that there be a special joint committee and that the Senate unite with the House of Commons to set up such a committee. It goes on to say:

That ten Members of the Senate, to be designated at a later date, act on behalf of the Senate as members of the Special Joint Committee—

Why 10? Why not 15?

Some Hon. Senators: Hear, hear.

Senator Donahoe: Are we not a chamber equal in legislative authority with the House of Commons? Oh, I know that we are an appointed body. I am well aware of that fact. I also know that we are part of the Constitution of this country, and I know that as part of the Constitution of this country we have certain legal and legislative rights. As of now, those rights are equal to and concurrent with the rights of the House of Commons.

There are some limitations upon us. We cannot initiate money bills. But apart from that we have as much authority over legislation as does the House of Commons.

Here we are being asked to consider the most momentous, the most important, the most decisive piece of legislation that has come before the Parliament of Canada in my lifetime. We are being asked to consider it in a committee which is to be representative of this house and of the other place; yet we are being asked to accept a secondary position in the formation of that committee and to have only 10 representatives on it where the other place shall have 15.

Oh, I know that there are more members of Parliament than there are senators. But we are a constitutional body as they are. We have equal and concurrent power, and we should have equal representation on that committee.

Some Hon. Senators: Hear, hear.

Senator Donahoe: Therefore, honourable senators, I move, seconded by Senator Murray, that the motion be amended by deleting the second paragraph thereof, and substituting the following therefor:

That 15 Members of the Senate, to be designated at a later date, act on behalf of the Senate as members of the Special Joint Committee;

The Hon. the Speaker: Honourable senators, it is moved by the Honourable Senator Donahoe, seconded by the Honourable Senator Murray, that the motion be amended by deleting the second paragraph thereof, and substituting the following therefor:

That 15 members of the Senate, to be designated at a later date, act on behalf of the Senate as members of the Special Joint Committee.

Is it your pleasure honourable senators, to adopt that motion?

Some Hon. Senators: Nay.

Some Hon. Senators: Yea.

The Hon. the Speaker: Those who say—

Senator Flynn: I assume that Your Honour is not saying that this motion is not debatable?

The Hon. the Speaker: I haven’t said anything about that.

Senator Fournier: Your Honour, I move the adjournment of this debate.

The Hon. the Speaker: Honourable senators, it is moved by the Honourable Senator Fournier, seconded by the Honourable Senator Murray, that the debate on the motion in amendment be adjourned until the next sitting of the Senate.

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Nay.

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators In favour of the motion please say “yea”.

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators who are against the motion please say “nay”.

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the “nays” have it.

And two honourable senators having risen.

The Hon. the Speaker: Please call in the senators. Motion of Senator Fournier negatived on the following division:

THE HONOURABLE SENATORS

Asselin
Choquette
Donahoe
Doody
Flynn
Fournier
Macdonald
Macquarrie
Marshall
Muir
Murray
Nurgitz
Phillips
Roblin
Sherwood
Smith
Tremblay—17.

[Page 1080]

THE HONOURABLE SENATORS

Adams
Anderson
Barrow
Bird
Bosa
Connolly
Cottreau
Frith
Giguere
Godfrey
Graham
Guay
Hastings
Hicks
Lafond
Lamontagne
Lapointe
Leblanc
McElman
McIlraith
Molgat
Olson
Perrault
Petten
Riley
Rowe
Steuart
Theriault
van Roggen
Wood—30.

The Hon. the Speaker: I declare the motion defeated.