Canada, Senate Debates, “Motion to Appoint Special Joint Committee—Debate Continued”, 32nd Parl, 1st Sess (28 October 1980)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1980 at 984-1000.
Other formats: Click here to view the original document (PDF).
SENATE DEBATES — October 28, 1980
MOTION TO APPOINT SPECIAL JOINT COMMITTEE—DEBATE CONTINUED
The Senate resumed from yesterday 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 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. Hazen Argue (Minister of State for the Canadian Wheat Board): Honourable senators, I am pleased to speak at this time in support of the motion that is before the house. This, of course, is a particularly important time in Canada’s history. Our nation has been going through some very severe strains as far as national unity is concerned. In fact, the very existence of this nation has been threatened. This year we as a country faced the referendum vote in the Province of Quebec. While that vote was the prerogative of the Canadians who live in that province, all of us, I am sure, took a very great interest in its outcome. As a Canadian who lives in another part of Canada, I was delighted to see such a large majority on the “No” side.
I am not an expert, certainly, nor do I purport to be, on constitutional questions; but that does not mean that I should not take part in this debate. I suppose there are not many really great experts on the Constitution in this chamber. I perceive some things that are needed for the survival of this country, and on that basis I am certainly prepared to participate in this debate.
I think we were fortunate to have as the Prime Minister of this country during that Quebec referendum the Right Honourable Pierre Elliott Trudeau. His intervention in that campaign, in that plebiscite, had a very major effect on its outcome—and it was a positive outcome as far as the rest of the country is concerned.
Following that referendum, everybody said that Quebec was looking to the rest of Canada for some action on the Constitution, and I suppose that is correct. One of the proposals in this particular package that commends itself most favourably to me is that of placing language rights in the Constitution. That is important, not only for the English who live in the Province of Quebec, but for the French-speaking minorities who live in provinces other than Quebec. To my mind, that is a major provision in this proposal.
I believe that one should be able to support the whole question of placing certain rights in the Constitution. I was a member of the other place for many years, and certainly there were campaigns, session after session after session, for a Bill of Rights in the Constitution—something which received support from many leading Canadians and which had some success. It appeals to me that such things as fundamental freedoms and democratic rights, including language rights, mobility rights, legal rights and, yes, non-discrimination rights, should be placed in the Constitution.
I know there are those who take the opposite view. They feel that our trust should be placed in the legislators, in Parliament. But what they are really saying is that they are trusting the majority at any given point in time; that you can be sure that language rights are safe in the hands of whatever political party may occupy the position of a majority in Parliament or a legislature.
I think it is quite possible to have in a legislature of this country, and perhaps even in the Parliament of this country, a government with a very large majority that, at a given time, might not take kindly to protecting the rights of certain minorities. That has been part of the history of Canada. It is not a very proud chapter. I cite, for example, the denial of the rights of Japanese Canadians during World War II and the question in Saskatchewan at times of the rights of Hutterites.
Fundamental rights are fragile things, and it is possible, I think, in a legislature or in a House of Commons not to give the necessary attention to basic human rights and fundamental freedoms. For that reason, I am personally happy to see the provision for language rights in the measure that we are discussing.
The Premier of Saskatchewan, the Honourable Allan Blakeney, has taken an interesting position. He is basically opposed to that section in the resolution which provides against discrimination on the basis of race, language, sex, and so on. I believe he repeated that opposition yesterday. But he has been opposed to the inclusion of rights in the Constitution in opposition to his own party in the House of Commons, and certainly that party is greatly divided. I think that we are in good company when we travel along the road with such defenders over the years of rights of Canadians as the late J. S. Woodsworth, M. J. Coldwell, T. C. Douglas, who succeeded in
getting a Statute of Rights into the Saskatchewan statute books, and the late Right Honourable John G. Diefenbaker, who proposed and had implemented in statute form Canada’s first Bill of Rights. As I say, I know there are arguments on both sides, but I think to entrench these rights in the Constitution is a commendable thing; it carries strong arguments in its favour.
The Premier of Saskatchewan says he would like to have equalization, or the provisions for equalization strengthened. Well, I hope and I imagine that the committee will be considering that very thing, and I think it is a good provision. One should say in a Constitution that Canadians in every province should be guaranteed a certain basic minimum standard of government services, and there should be payments from the federal government to provincial treasuries to make certain that the moneys are available to provide that kind of support for those services.
I think we have done pretty well so far in this country in providing equalization of opportunity in many ways to those provinces that have a lower per capita income. Saskatchewan has been a have-not province for many years, but it is coming into its own now. People on the prairies complain that Ottawa has forgotten them, that they are discriminated against, that Ontario and Quebec are running off with the revenues. And, one can make an argument, I suppose, on both sides of that question, but I think that a great deal has already been done to provide equalization and equality of opportunity in many respects for people in western Canada.
I had the opportunity the other day to help officiate at the opening of a seed cleaning plant at Cutknife, Saskatchewan. I had no intention of relating this story when I started to speak, but it was a great experience. Anyway, I was on the platform with the Honourable Gordon MacMurchy, the Minister of Agriculture for Saskatchewan. This is a very modern seed cleaning plant that was about ready to go into operation. Mr. MacMurchy’s speech went something like this: “Saskatchewan, you know, is a unique province. In Saskatchewan we co-operate and we have co-operatives and we have a Department of Co-operatives and our agriculture representatives have helped put this plan into effect. This is a perfect example of why Saskatchewan is unique and how we all co-operate together.” Then he added, “The government has provided $220,000 for this plant.”
Well, I was following him. At most of these openings there are no representatives of the federal government. We have no members of the House of Commons, and that is not news.
An Hon. Senator: Oh, yes, we have.
Senator Argue: I meant on the government side. I apologize. Of course, we have members of the House of Commons, and very able ones, from two different parties. But there was nobody representing the government to tell what the people of Canada have invested in that plant. So I said, “Well, Saskatchewan believes in co-operation but, you know, that is really an attribute of all Canadians. We like to co-operate, the federal government with the provincial governments and municipal governments, and so on.”
I pointed out that medicare is a shared program; that the farmers out there have many federal programs that are of assistance to them. I reminded them of the cash advances program. I told them that the federal government had provided 10,000 hopper cars, and the Canadian Wheat Board had provided 2,000. There were 1,000 coming in from Saskatchewan this year and 1,000 from Alberta, but of a total of 14,000 hopper cars, 10,000 were from the Government of Canada. I pointed out that there was sharing, assistance, leadership and help from the federal government.
I mentioned crop insurance—50 per cent comes from the federal government and 50 per cent from the farmers, as far as benefits and premiums are concerned. The provincial government administers crop insurance and gets 98 per cent of the credit for having instituted it because so many people do not know that there is a federal contribution.
I was out in Winnipeg the other day meeting with the Western Grain Stabilization group—
Senator Walker: Honourable senators, my learned friend whom I have listened to with interest in both houses over many years is, I think, at the moment confused as between the speech he made the other night and the motion that is before the house today.
Senator Argue: Perhaps I am going a little far afield, but I really don’t think I am going too far afield. We are discussing placing equalization in the Constitution, and I am saying that there is a great deal of equalization in place already. I am saying it is there to assist the people of western Canada, and that we are not forgotten. We are part of this country and we obtain benefits by being part of this country. We receive benefits but we pay for the benefits that go to other parts of Canada—and what is wrong with that? So let us put it in the Constitution and make certain that it stays there. There is branch line rehabilitation costing $700 million—and I could go on and on.
I thought I would tell the story some day of a farmer who starts out to seed in the spring just to illustrate which government follows him along in his various operations, and to see where the equalization payments come from.
I concluded with my little speech up there in Neepawa by pointing out to Mr. MacMurchy and everybody there that $220,000 went into the plant, of which $110,000 came from the Government of Saskatchewan and $110,000 from the government at Ottawa. I say that if any provincial minister wants to assist national unity, let him state the facts as to where these payments come from. He should not try to take credit as though the money came from the provincial purse, when half of it comes from the federal purse.
Senator Roblin: I should like the honourable senator to get his facts straight. Neepawa is not in the province of Saskatchewan; it is in the province of Manitoba.
Senator Argue: I was speaking of the variety of wheat. The farmer seeds Neepawa in the spring. It is a variety of wheat
bred and originated on the experimental farms of the Canada Department of Agriculture. I should have gone on to say that. I do not know where the name came from but I imagine it came from the town of Neepawa. But it is a great wheat and it is gaining in popularity all the time. This is an instance of the federal government helping the farmers in western Canada. When we pay our income tax we help everybody in Canada, and what is wrong with it going either way?
Then, honourable senators, coming along to some of the other learned things that have been put forward, you know there is a whole lot of humbug in this entire discussion. We should not get it all from one side of the house. Perhaps my friends opposite think that all the humbug comes from their side, that is why they are making all the noise.
Senator Frith: It comes from Humbug, Manitoba.
Senator Argue: Anyway, when the federal government embarked on a program to advertise Canada and some of the basic tenets of our country, it was interpreted as being propaganda from Ottawa. It might be important to keep the country together, but be sure not to send the facts out to anybody!
An Hon. Senator: A wild goose chase.
Senator Argue: Well, my honourable friend may know more about wild goose chases than anybody else. Anyway, out in Saskatchewan we get lots of flak. We are told the federal government should not advertise. But do you know why people say that? They say it because the federal government basically never has really advertised, and so it is a foreign element when they see a federal advertisement. They are used to provincial advertisements because they are in the newspapers every day, and they are in the weekly press. If you are a farmer in Saskatchewan you might not get a newspaper, but you do get all kinds of mail and miniature newspapers from the provincial government week after week after week, and so you have lots of advertising to read.
There is one thing about the Government of Saskatchewan—it doesn’t put out its stuff on cheap newsprint. They use the best paper in the world. It is expensively done and it is well done; they do it with class. There are a lot of things they do out there with class, you know—I guess because it appeals to the little people when they are running elections. If they want a building after they are elected they don’t build a ten-storey building; they build the tallest building in the city and they make it the most lavish. They feel that that is impressive.
Let me refer to some things that appeared in a paper the day the Prime Minister was out in Saskatchewan to help celebrate the 75th anniversary of the province. What I am referring to is a photostatic copy of what was put out as “their” answer to the Constitution. They refer to the “danger of a new national policy.” They say that the proposed amendments threaten key policies in Saskatchewan and elsewhere. For example, this is what Ottawa is supposedly threatening: that the Saskatchewan law against non-resident ownership of farmland would not be allowed; that the dedication of Saskatchewan natural gas to Saskatchewan’s needs might not be allowed; that—and this is a gem—the low-cost compulsory car insurance provided as a monopoly by Saskatchewan government insurance could be in jeopardy. Those are scare tactics used to inflame the public and make them afraid of something that is coming.
Of course, these are the people who spend large sums of money on advertising. I don’t know how much they spend, but they spend large sums. But just let the federal government put out a single ad, and that is different. We ran into some of that on the Herd Maintenance Program. You are supposed to have a program, but you are not supposed to tell anybody you have it, because that is advertising. You are supposed to hide it away somewhere. Well, we did not hide it away. But that is out of order so I had better not continue on that line. At any rate, they have a lot of advertising out there and yet they say, if the federal government advertises, it is wrong.
I hope that this federal government, and any future federal government no matter of what political stripe, will spend sufficient money on advertising and information to enable the citizens of Canada to become aware of the basic programs provided by the federal government and the basic provisions of those programs. How will Canadians be able to decide in an intelligent way just what the government is spending money on, and in what proportions the expenditures are made, if they are not informed?
Therefore, I do not apologize for any information the federal government has put out. I hope that when the constitutional debate is concluded they will not be fainthearted or afraid to explain their position. I am not suggesting they should go overboard or be extravagant, but they should explain such basic facts as that crop insurance is really paid for by the federal government and the farmers, not by the provincial government, and that many homes for the aged are provided, basically, by a 75 per cent grant from the federal government, with 15 per cent coming from the provinces and 10 per cent from the municipalities.
In my opinion there is nothing wrong with putting out sufficient information so that citizens will know where the money has come from. Therefore, I think that is something that should go forward.
As I have said, there have been a lot of scare tactics. The matter of resources has been raised. It is an important question and I can understand the provinces being concerned that a federal government—this one or some other—might move in to take away their right to their resources, or, in a certain way, challenge the very title to those resources. But I do not think the government ever had that in mind. I don’t think it has it in mind today.
Well, the west has certain resources and they say, “We should have full title to those resources,” and I say “great” to that. They say, “We should not have an export tax on natural gas.
Senator Murray: What do you say to that?
Senator Argue: I will come to that, don’t worry. I am just building up so I can get to it.
Then down in Newfoundland the government says, “Well, those territorial waters—we’ve got to get title to them. It is not enough that they belong to all of Canada. It is not enough that in the Constitution the authority over waters and fisheries rests in the federal government.”
I say that a share of all of the resources of this country, the same as a share of all of the wealth generated in this country, in all parts of it, should flow—surely some of it, a portion of it—into the coffers of the federal government; otherwise there is no country. I say that as a westerner.
Senator Cook: Everybody agrees with that.
Senator Argue: All right. That’s fine. Sometimes you would not think that Mr. Lougheed agrees with it. He does not want the federal government to gain any revenue from his oil and gas that I can see. Now, maybe he does, but I can’t see it.
Senator Cook: I come from Newfoundland.
Senator Argue: Well, I am trying to look after everybody in the whole country. I think Saskatchewan has some points to make. It is pretty easy for the provinces to gang up today and say they want title to all the resources and all the income from the resources, and do not want any federal tax on the resources, but I really believe that the federal government went a reasonable distance in dealing with Newfoundland, for example. As I understand it, the federal government said that the revenue from oil discovered offshore would go entirely to the provincial government—entirely—until such time as the average income in Newfoundland began to exceed the average income of all Canadians in all parts of Canada, at which time a share, a minor share, would go to the federal government.
I do not think that is particularly bad. I think it is good that we should have a federal government with sufficient economic strength that this country can survive. The provinces have their rights. The provinces need to maintain their rights. But the federal government, on behalf of Canada, needs to maintain its rights as well.
Senator Tremblay: May I be permitted to ask the senator a question? I will try to ask my question in English. If he does not understand, I will try again in French.
Senator Argue: Please go ahead.
Senator Tremblay: Would the honourable senator tell me the kind of average he is speaking of in what he has just said? Is it the average which is now used in the equalization grant formula, which does not include a large part of the revenues of some provinces in terms of natural resources, particularly oil, or will it include all revenues of the provinces? I ask that because there is quite a difference.
Senator Argue: I am not really qualified to answer that question, but the inference I draw from the honourable senator’s question is important, namely, that that kind of proposition, that there should be a sharing but that the province should have the right until its revenue exceeds a certain average is all right. It is a question of negotiating a reasonable and fair average. I would certainly like to agree with the honourable senator on that point.
When you go to western Canada, come to my province. Alberta complains and will continue to do its own complaining, obviously; but Saskatchewan for many years now has been paying a large export tax on heavy crude going out of the province into the United States. They may well have some legitimate complaint, I believe. But at least until now—and perhaps I shouldn’t say this—there has been no threat to leave the country, or mention that separatism is just around the corner, or talk about a war or an attack. However, I think Saskatchewan has a case for asking that the whole question be looked at.
I made a speech in Regina on Friday last to the Chamber of Commerce, in which I pointed out that in 1980 the export tax on heavy crude going out of Canada is estimated to be some $620 million. Seventy per cent of that revenue comes from the tax on crude going from Saskatchewan. Saskatchewan’s share of that tax is $435 million; Alberta’s share is $185 million.
I believe the way for the federal government to go in dealing with all these questions is to be fair and reasonable, to endeavour to provide equitable treatment, to listen and accept amendments and change, and to come forward, in so far as possible, with something that has the general support of the Canadian people.
When the country is worried about an impending export tax, I went on to say, in this statement, that I felt that whatever was done in the economic field would be done from the standpoint of providing legislation that was reasonable and fair to all parts of Canada.
I do not want to see the federal government take the same position as the oil producing provinces—namely, that the price of oil should rapidly increase to the world price, because, as a producer and farmer, I do not think I would gain very much if I have to pay $3 for my gallon of diesel fuel instead of the $1, or the little more than $1, that I pay today.
I cannot see that it will help producers, farmers or the agriculture industry in general, to see those prices double and triple. I should think it would be good for the Canadian economy, and for our competitive position in the world, if energy costs, to be borne by our industries, were borne at less than the OPEC price. That would be good for the country and it is something that should be supported.
I should now like to take a few moments to speak about some of the perceptions of western Canada. In many parts of Canada, and in the press, the word is around that there is a growing separatist movement on the prairies, in western Canada; that it is going to break the country in half; that there are separatists out there just ready to go. Well, I have not found them; I have not seen them; I do not know who they are. Perhaps I should not say that. There are a couple in the Saskatchewan Legislature.
Senator Asselin: Wait until the end of the debate. You might see some soon.
Senator Argue: I do not think that tomorrow will be any different from today. There are a pair of so-called separatists
in Saskatchewan. They are not full-fledged separatists. They want to separate one minute, and the next minute they want to join the United States. They call the name of their party “Unionest”. If it were “Unionist” it might look like a labour union, so they put an “e” in it.
There are three by-elections coming up in Saskatchewan, and I say to my honourable friends in the Senate that I doubt if they could field a candidate in those by-elections, where they could be tested. There are three by-elections coming up in Saskatchewan in the next few weeks. I would suggest that they get into those by-elections, that they run their campaign, and see how many votes they get. If anything, it will kill separatism. It will be a fling at the electorate in Saskatchewan, who are Canadians. I am sure they will lose their deposits, their shirts and their money, and everything else that goes along with an election campaign.
Then we have some other well-known people in western Canada who seem to be great at making the news and they are given a lot of support. I refer to the Canada West Foundation and its leader, chairman or president—I am not sure which—Stanley Roberts. I have seen him on television. I do not have the quote, but he said that separatism is rampant in Alberta and in western Canada, that all it needs is a leader to light the spark. As they used to say in the old Methodist Church, of which I was a member, Stanley Roberts is preaching for a call, but I don’t think anyone is calling him. If he decided to say, “I am the separatist leader” he would not have any following.
I am surprised that the Governments of Alberta, Saskatchewan and British Columbia, and also some important business organizations in this country, are providing money to that organization, for which Stanley Roberts is the spokesman. I would say that he is taking a line that is anything but constructive. I do not believe for one moment that he speaks for those member organizations, or those governments, as he may claim to do. I don’t know whether he does or not, but he should not be speaking if he doesn’t.
He said that separatism is really rampant; that they are all set to go. He said it’s in the board rooms of the oil companies in Calgary. Well, let them come out and name themselves. We would like to have a look at them, because I can state that I have not met a single person in Saskatchewan, Alberta or Manitoba—or British Columbia, for that matter, but I have not been out there very much—who has not said, “When I look at Canada and the provinces, I am a Canadian first and a Manitoban second,” or “I am a Canadian first and an Albertan second.” I believe that is the way most people in this country think and that is the way the country is going.
We should not pay too much attention to those self-styled separatists, or near-separatists. Let us smoke them out. Let them come out and stand as separatists, and not do what they are doing—that is, offering insinuation and innuendo, and causing trouble—because they really do not have much substance behind them or much of a following, and I would hope that good Canadians, who pay good money into the Canada West Foundation, would look at where the money is going to see if it is serving the purpose for which the foundation was established.
I thought I had the quote here, but perhaps I can paraphrase the purpose of the Canada West Foundation. It is to do everything possible, by research and publications, to promote a stronger western Canada within a stronger Canada. Senator Roblin would know whether or not that is a reasonable paraphrase. It is a laudable objective and the west needs spokesmen. We are not as large in population as other parts of Canada. However, if we deal with the situation with reason and forbearance, and keep to the facts, we will accomplish a great deal more than if we start from the premise that, “We are good guys and everyone else outside our province are bad guys who are trying to do us in.”
There is talk about separation—not separatism, but separation. Every party goes through it every once in a while. I guess I should know. But who has been having trouble, in this great debate, by way of maintaining loyalty? Perhaps everyone. I read that there are one or two members of the House of Commons who might not follow the line taken by the Prime Minister and the Liberal Party. From what I have observed of the Liberal Party over the course of some years, it does not make the mistake of expelling a good Liberal because at a given moment he has different views. He might be the most loyal member a year from now, or even two years from now.
Senator Asselin: Wait, wait.
Senator Argue: Out in Alberta, 80 per cent or 90 per cent of the provincial legislators represent one party. But Mr. Sindlinger, the member for Calgary Buffalo, said that he would rather accept the federal position than the provincial position. Because of that he was expelled from his party’s caucus.
Senator Asselin: Wait; you will see what they are going to do with Duclos.
Senator Argue: That’s okay. I’ll just wait; I will do what my honourable friend suggests.
In the Province of Saskatchewan, the premier takes a position and makes it firm. Since he has been making it firm, however, and since we have been getting into this important discussion, and as the discussion has heated up, I have noticed that one cabinet minister, the Honourable Eiling Kramer, a minister for 28 years, from the city of North Battleford, resigned as minister and resigned his seat. Just a couple of days ago—perhaps it was yesterday—the Honourable Jack Messer, a member of the legislature for 13 years and a member of the government for nine years as Minister of Mineral Resources, also resigned as a cabinet minister and resigned his seat. It is fair and correct to say that the statements they made as to why they resigned were not to the effect that they disagreed with the premier, but to me it is a strange time for the premier of any province to see his cabinet resigning when he is in this kind of a battle.
Senator Asselin: Give the reason, if you know it.
Senator Argue: What I believe is that in the Province of Saskatchewan there are a great many supporters of that government, and that party, who agree with the national leader of the party, and who have taken a federal position. I think that as time goes on it will be evident that more and more people are supporting that position.
The Prime Minister, on October 23, was reported as having made a statement at a news conference in Ottawa to the effect that the chances of western separatism are absolutely nil, and that he is not worried about western separatism. I agree with that statement. That statement was pooh-poohed by many people. There were editorials against it. I say, however, that the chances of western separatism are absolutely nil, and I conclude by saying that I have great confidence in this country—my country. I have great confidence that the government of today, and governments in the future, will deal with these many and difficult issues in a fair and reasonable manner. We will work our way through these difficulties and emerge a more united country than we have ever been in the past.
Hon. David Walker: Very, very entertaining! It is just like being back in the old House of Commons, where my friend’s favourite song always was, “When Will the—”, well, I will not name it. I think it would be out of order to do that. It has been very enjoyable, however, to hear him again, just as I used to enjoy hearing him out on the hustings too.
Honourable senators, now may I come back to today’s subject. I have almost forgotten what it was, but I will try and get back to it. In the first place, I would say that if this proposed Joint Address gets as great a reception in the courts as the last one, it will be a pretty hopeless situation. The reception of Bill C-60 in the Supreme Court of Canada was awful. Bill C-60 was the means by which the Prime Minister, above everything else, suggested that the Senate be abolished, and that a House of the Federation take its place.
I do not know why the Supreme Court of Canada went to such trouble, but the words they used are words that can and may be again used in connection with the proposed legislation presently before the house.
I quote first from page 18 of the judgment of the Supreme Court, dated January 21, 1979. You will remember that they were going to eliminate the Senate and substitute a House of the Federation. The quotation is as follows:
The continued existence of the Senate as a part of the federal legislative process is implied in the exceptions provided in s. 91.1. One exception to the power conferred by s. 91.1 to amend the Constitution of Canada is “as regards the requirement that there shall be a session of the Parliament of Canada at least once each year.” “Parliament” under s. 17 is to consist of the Queen, the Senate and the House of Commons. This exception contemplates that there shall continue to be sessions of the Senate and the House of Commons at least once each year.
I now turn to page 19 of the judgment where we find the following:
Section 91 confers the authority to legislate in respect of matters within that section upon the Queen, with the advice and consent of the Senate and the House of Commons.
Farther down the same page the judgment states: Section 91.1 confers a power of amendment subject to specified exceptions which, as we have already pointed out, contemplate the continued existence of both the Senate and the House of Commons.
Through all these 25 pages—and I can give you one instance after the other—I can find no way, no way whatever, under the British North America Act by which the Senate can be abolished. There is none. I will read the final reference at page 20.
A provision of the kind contemplated—
That is, to abolish the Senate and substitute a House of the Federation.
Senator Frith: In a bill; not in a Joint Address.
Senator Walker: I appreciate that. I am coming to that.
—would seriously impair the position of the Senate in the legislative process because it would permit legislation to be enacted under s. 91 without the consent of the Senate. For the reasons already given in respect of Question 1, it is our view that Parliament cannot under s. 91.1 impair the role of the Senate in that process.
I refer honourable senators to the marvellous speech made by the former leader of this house, Senator Connolly, on this subject, though I will not take the time to read it, or any part of it, at this moment. It is a magnificent dissection of the judgment of the Supreme Court of Canada to which I have been referring, and is to be found in Debates of the Senate, April 17, 1980, at page 60.
I am going to be brief, honourable senators, because I know that my friend took up quite a bit of time, and you do not want to have to listen to me take up a lot more time.
Senator Marshall: Take all the time you want.
Senator Walker: Over and over again attempts have been made, in different forays, to do the Senate harm. For some reason or other it seems to be fixed in the mind of the Prime Minister that he must get rid of the Senate. It may be, as he admitted, after he told how he was going to retire the first time, that he has in mind a presidential system of government, such as they have in France. That is what he compared it to, and in that case, of course, it would be very handy for him not to have a Senate. He can control the House of Commons—he does control—but he cannot always control the Senate.
Senator Frith: Is there not a Senate in France?
Senator Walker: What is it that my friend has to say? This will be interesting, I am sure.
Senator Frith: I was pointing out that there is a Senate in France.
Senator Walker: There is no Senate that is in any way related to the Senate that we have here. Here we have exactly
the same rights as they have in the House of Commons, except with respect to the introduction of money bills. We can veto the money bills, but we cannot introduce them. That is a very good idea, and that, for my friend’s information, is a very distinct difference between this Senate and that of France.
The proposed resolution now before us respecting the Constitution Act, 1980, tries again to knock out the Senate in a sort of a smart way, as a matter of fact. Whoever did this, at the instance of the Prime Minister, probably did a lot of thinking before coming up with the answer. It does not appear on the face of it, but that is what it is for. I shall read part of section 44 of the Constitution Act, 1980.
An amendment to the Constitution of Canada may be made by proclamation under subsection 41(1) or section 43 without a resolution of the Senate authorizing the issue of the proclamation—
That is very simple and very plain—it can be done. I continue:
—if, within ninety days after the passage by the House of Commons of a resolution authorizing its issue, the Senate has not passed such a resolution and if, at any time after the expiration of those ninety days, the House of Commons again passes the resolution-
If it is not passed in 90 days by the Senate, the House of Commons passes it again, then it becomes law. If section 44 becomes law, the Prime Minister or any government in power can wipe out the Senate.
Would my good friend, Senator Denis, be good enough to keep his voice down while I am in the course of speaking in this debate? I enjoyed hearing him when he was Postmaster General, but I wish that at the moment he would pay attention.
Senator Denis: My apologies.
Senator Walker: Under section 44 a resolution can be introduced which would knock out the Senate, which does not require that the Senate join in that resolution, and after 90 days the Senate is gone. This is what is suggested to me by this resolution. Nobody on the other side seems to be particularly worried, and I can only gather that perhaps in the final analysis they are going to have that part of the resolution struck out—I do not know. It is very important that we notice these things at the present time and that we do not get taken in by all the smart talk and the soft soap that we hear around here when, in fact, we may be destroying ourselves by giving any credence to section 44 of this resolution.
Senator Frith: May I ask the honourable senator a question?
Senator Walker: Of course.
Senator Frith: The honourable senator is not suggesting that under a combination of sections 44 and 41 the House of Commons alone can abolish the Senate?
Senator Walker: Section 44, as I pointed out to my friend is always, of course, subject to section 41 which states:
(1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and House of Commons;
(b)resolutions of the legislative assemblies of at least a majority of the provinces—
That includes the provinces as set out under the Victoria Charter.
Senator Frith: It takes both.
Senator Walker: That is true, but when the House of Commons and the Senate go that far, cannot one expect that the Senate will go the final step and do it? It is only another move. They are doing it in the first place, and they are being asked to do it in the second place.
Senator Frith: Who is doing it in the first place?
Senator Walker: In going as far as it has gone, it seems to me that the Senate would almost be obliged to support sections 41 and 44.
This new direction to the British Parliament contains many things such as enshrining the Bill of Rights. I do not know what the word “enshrining” means. I do know that we have a wonderful Bill of Rights in this country; it has become law, and it is respected all over Canada. If you attempt to include the Bill of Rights in this resolution to be sent over to England, with all the objections that are being made to this complicated charter, I would respectfully suggest that you would not be nearly as well off as you would be if you just left the Bill of Rights as it is. So far we have found no faults with it, and it has been accepted by the Supreme Court of Canada and many other bodies.
Finally, I should like to refer to section 50 which deals with the office of the Queen. Section 50 states: An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with a procedure prescribed by section 41 or 42:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province—
An amendment to the Constitution concerning the office of the Queen can, under section 41, be made by an amendment to the Constitution of Canada. At any time after the Constitution is patriated that question could arise. By proclamation of the Governor General, with resolutions supported by the Senate and the House of Commons, you could depose Her Majesty the Queen or limit the powers of Her Majesty the Queen—almost anything. Do you want to go that far? What is the necessity for going that far? Strike out this part.
I should like to be brief since there are so many people who wish to speak on this subject.
In the name of Heaven, if you want to get this thing through—and we are all anxious that our Constitution should be patriated—why do we not have it patriated just as a simple amendment calling for the patriation of the Constitution adding, of course, an amending formula such as the Victoria
Charter? Then the British Parliament would have no problem with it. They are anxious that we should have our own Constitution patriated. We are anxious not to get it back without an amending formula of some kind, and it need only start out by being a simple one as is set out in subsection 41(2).
Why are we concerned about the business of enshrining a charter of rights and everything else that is so annoying to so many people? Why do we have to bring in, at this time, the question of referenda. I am reminded of the tremendous division that occurred in Canada in the conscription election of 1917. We have hardly gotten over that. That referendum cut the people down the middle. It is something that we never got over, and we, after all, are elected to govern. We have an extremely able House of Commons and an even better Senate. We can handle all the problems. We don’t need to escape those problems by bringing in a provision that provides for a referendum.
Those are only some of the things. There are half a dozen others I could take up your time with, but if we want to get this thing through—and we are all anxious to get it through—let us go to the foot of the Throne and to the British Parliament with a simple patriation of the Constitution and with a simple amending formula and then we will get what we want.
I really do feel, since we have been on such good terms with the British for so long—they are such wonderful people and they dealt fairly with us all the way through—that it would be a pity to break up that friendship and good relationship that exists between us by sending them a proclamation included in which would be resolutions which are contentious, and in respect of which they would have to say, “We are sorry; there is too much objection to this. The provinces don’t agree; people want to litigate this, that and the other thing.” You can readily see how politely they would do it. They can say, “You Canadians are so able and you know what you want so well yourselves. We would feel we were imposing ourselves on you to do anything but what is necessary for patriating your Constitution with an amending formula.”
Honourable senators, that is my respectful, sincere suggestion to you, that we should get what we want, which is patriation of our own Constitution without any fancy business that is going to create furore, and which is likely to bring about a refusal or result in litigation. Let’s simplify the matter and bring the Constitution home.
Hon. Sidney L. Buckwold: Honourable senators, I am very pleased to participate in this debate not as a supporter of the government—although I am a loyal supporter of the government in the Senate—not as an individual with any axe to grind, but as a representative of my region, the province of Saskatchewan, and as a voice to express in this chamber the positions and attitudes taken by the Government of Saskatchewan, and perhaps in due course to express some of my own personal opinions.
Saskatchewan, as we have heard from a previous speaker today, is a very interesting province. It was just a few months ago that we celebrated the seventy-fifth anniversary of our incorporation as a province instead of a territory. I am sure all of you, along with us, are delighted with the progress we have made.
Saskatchewan has been a province that has seen good times and bad times. I do not have to talk to you, I am sure, about the sufferings endured in the Dirty Thirties. I do not suppose there is any region in Canada that has ever had more than 50 per cent of its population on welfare—in those days they called it relief—and yet survived with a smile and the courage to keep going. Today the fates are much kinder to us. We have developed into a province rich in resources, which is beginning to have a good industrial base, which has a slightly growing population, and which feels that the future is very bright indeed. I also believe that Saskatchewan is a province that is proud to be part of Canada. I believe, along with Senator Argue, that Saskatchewan people put Canada first.
For this reason, I am pleased at this time to speak to you briefly about some of the concerns that have been expressed by the Government of Saskatchewan through its premier and through Mr. Romanow, the Deputy Premier, who has been acting as a co-chairman of the constitutional committee that has been considering constitutional change in Canada.
First of all, I must pay some tribute to these gentlemen, neither of whom I support politically, nor would I ever vote for, but nevertheless I believe they have fairly placed before the Government of Canada legitimate considerations of the proposals contained in the resolution before us. Of all the provinces of Canada, I believe Saskatchewan has acted the most responsibly and responsively to the needs of Canada, keeping in mind the particular aspirations and objectives of the region.
I did hear some criticism by Senator Argue of the stands taken by Saskatchewan politicians, and some of it may be justified, but on the other hand I believe that Premier Blakeney has gone out of his way to be as accommodating as possible within the self-interest that, obviously, he has to protect the province which he represents.
Let me tell you some of the concerns of the Province of Saskatchewan, which, by the way, has indicated basically that it agrees with most of the provisions that are contained in the resolution. I hasten to add that I personally agree with most of them. The province has indicated some of the following concerns: First of all, the federal proposal relating to the amending formula is the most odious aspect, they say, of the resolution because, first, it is a unilateral federal imposition, which hardly meets the objectives of co-operation between the federal and provincial governments and, second, it seems to put the federal government in a most advantageous position, in respect of both Part IV and Part V.
I suggest then, in answer to that particular criticism, that if and when the committee is set up it must be prepared to carefully look at the amending proposals contained in these
sections to ensure equity and fairness in the relationships between both levels of government.
Honourable senators, section 42, as it now stands, would allow the federal government to call a referendum on a constitutional change without even consulting provincial governments, let alone trying to secure their agreement. As one provincial spokesman put it—and again I am presenting a Saskatchewan point of view, and I am quoting—”This loads the dice against the provinces, and is fundamentally incompatible with the federal system.”
Resources again are a special concern of the west. Saskatchewan’s mineral shipments have increased from $390 million in 1970 to $1,835 million in 1979—that is $1,835,000,000. For a province like Saskatchewan that is a lot of mineral production—a gain by almost five times in that period—with much, much more to come, so that resources do become a very real interest and concern to people in Saskatchewan. The west is contributing a great percentage of those funds to subsidize eastern energy costs. Senator Argue has very ably pointed out the significant contribution that is being made as a result of the present export tax on oil to help subsidize the equalization of oil costs across the country. I repeat the figure that he used. It may astound you to know that the present export tax on Saskatchewan oil alone contributes nearly $500 million a year to the federal government, and that is approximately $500 from every citizen of Saskatchewan that is going into the federal treasury. Indeed, the federal government takes more out of oil revenues in Saskatchewan than the province and the industry combined.
These are some of the concerns. You have not heard any complaints from the Province of Saskatchewan about that export tax. It has been there a long time; it has been growing steadily because of the formula, and it has a built-in structure. I am not trying in any way to negate the importance of an export tax. We may even hear more of it tonight. I am simply saying that Saskatchewan has learned a great deal, and as a result it is cognizant of the fact that energy revenue and energy resources are very important indeed to the economy and well-being of that province.
For that reason, all of Saskatchewan was delighted to learn of the agreement reached between Mr. Trudeau and Mr. Broadbent for the inclusion of a resource section in the resolution on the Constitution. Although that is not in our document, presumably it will be presented to the committee. Let me read a statement by the Honourable Allan Blakeney, which was issued on October 22, just a few days ago. He said:
I want to comment on the agreement announced last night, between Mr. Broadbent and Mr. Trudeau, for the inclusion of a resources section in the federal resolution on the Constitution.
The amendment has not yet been introduced and accordingly I have not had an opportunity to study the final text.
I don’t think any of us have had that opportunity. He went on to say:
I understand, however, that the Trudeau-Broadbent agreement would: (1) confirm provincial powers to manage resources; (2) permit provinces to levy both direct and indirect taxes on resource production, as long as the taxes were non-discriminatory in their impact; and (3) admit provinces to the field of inter-provincial trade in resources, with unqualified federal paramountcy in the event of conflicting legislation.
Detailed comments will have to await careful scrutiny of the specific wording.
The terms of the provision, if introduced in the form proposed, will go some way towards achieving the objectives we have sought in constitutional negotiations over the past few years.
They do not, however, go all the way. Saskatchewan will attempt to obtain additional assurances with respect to resources, particularly in relation to international trade.
I will not go into the details of why Saskatchewan is particularly interested in international trade. That province has had some unfortunate experiences as a result of appeals to the Supreme Court on legislation that had been passed. As a result, it is very concerned about how international trade will be dominated by the federal government, and what the role and responsibility of the province will be.
Having said all that, I am delighted that Mr. Trudeau has seen fit to accommodate the needs of my province so that in this proposed Constitution, as outlined in the resolution, most of the needs of Saskatchewan have been acceded to, have been met. I think that this speaks very well indeed of the attitude of the Prime Minister in trying to accommodate the needs of the provinces, and I suggest this is a very good example of federal concern.
Insofar as the Charter of Rights and Freedoms is concerned, Saskatchewan is concerned about possible unintended effects of the provisions regarding non-discrimination. Premier Blakeney, for example, has raised some of the possible conflicts, such as mandatory retirement ages, a subject in which Senator Croll is very interested; age limits for the consumption of alcoholic beverages, or age limits for obtaining a driver’s licence. The broad provisions require a great deal of study, albeit that in my personal opinion the objectives are commendable indeed.
With respect to language rights, Saskatchewan supports the provision and finds them generally acceptable.
On the equalization formula, our premier has suggested that:
—direct reference be made to “equalization payments” as opposed to the vague reference to—
To quote the words of the resolution:
—”taking such measures as are appropriate.”
This word change, the premier says, would more clearly reflect the principle which the resolution seeks to enshrine.
Premier Blakeney also points out important items not in the proposal, and has said:
In addition to what is contained in the proposed resolution, what is not in the document also requires a comment.
The proposed resolution contains provisions by which Mr. Trudeau’s own descriptions are designed to respond to concerns in Quebec.
And rightly so:
It contains provisions of particular interest to Atlantic Canada and urged in part by their governments—the equalization principle.
It contains mobility provisions, strongly urged by the Government of Ontario.
Other than patriation itself, it contains nothing urged by the governments of the western provinces.
My suggestion is that the resolution be amended so that some of the particular concerns of Canadians living in western Canada be acknowledged.
So, honourable senators, I feel that we have in the attitude expressed by Mr. Blakeney a very conciliatory response to this proposal. I believe that basically the citizens of Saskatchewan, whatever their political beliefs, would endorse the stands generally taken by the Premier of Saskatchewan. I only wish that premiers across the country would be as amenable to trying to put Canada first, and yet keep in mind the regional needs of their particular areas. That is the balance that we have to find.
We have to be concerned about the west. I am sorry that I do not quite agree with my friend and colleague Senator Argue, who pooh-poohed the concerns of some of us about western separatism. Certainly it is not at the moment a movement of any great consequence. People aren’t going to go around waving the flag, marching on city hall and saying that they want to separate. But I want to say to the honourable members of this chamber that there is an embryo there, an embryo that, nurtured in the wrong way, could develop into a monster that we would soon regret in this country. There is a western disenchantment. It is a very real thing. When we look at the problems of energy, of the Constitution, of transportation and tariffs, there is a real dichotomy, there is a division between the west and the east. Somehow we have got to try to solve that. We have to try to solve it with goodwill.
I think we are finding the west flexing its muscles. I suppose I am speaking as a proud westerner when I say that if the twentieth century belongs to Canada, then I think certainly the twenty-first century will belong to western Canada. I think people recognize that, and somewhere that adjustment has to be made.
There is a struggle going on right now with the power of the east—I shouldn’t say the cast, but central Canada. Out west, Senator Walker, we always think of the east as being Toronto or Montreal. There is a struggle going on, and it is an historic struggle by an area that has been well established against the aspirations of a fledgling rival with new wealth which could possibly be a threat to its domination of the economy. This is something that goes on, I presume, around the world. I think one has to recognize that the west is very concerned about this.
I heard reference to the Canada West Foundation. I have to I tell you—and I am proud of it—that I have been a member of that foundation since its inception many years ago, and until a few months ago I was a vice-chairman. I am sure that the Honourable Duff Roblin will not be critical of me for indicating that he, too, is a councillor of that particular foundation. Nor, I am sure, would Senator Manning be critical of me for indicating that he is a very active councillor of that foundation, along with other leading Canadians from that area.
This foundation is financed basically by the provinces of Manitoba, Saskatchewan, Alberta and British Columbia. It comprises a group of citizens who are non-political and dedicated to improving the status of western Canada within the ambit of a strengthened Confederation.
I am the first to agree that I do not share the perhaps radical opinions expressed very often by Mr. Stan Roberts, the president of the foundation. I have written to the chairman of the foundation, Mr. Arthur Child, a great Canadian and also the President of Burns Foods of Calgary, with regard to some of my concerns. I think one has to accept, even if one does not agree, that there is more than a particle of truth in what he is saying.
In 1962 or 1963, when westerners were told of a separatist movement in Quebec, they said it was impossible. They asked how could Quebecers be that foolish and why would they want to leave this wonderful country. We could not believe that. I can say to you that right now this same type of feeling is developing in the west. People such as Senator Argue and others say there is nothing to it, and it is true that at the moment it certainly is not serious, but a spark could fan it. The makings are there. I believe that we have a responsibility as senators to make sure that we work to strive to eliminate the possibility of that, and that can be done by looking with favour at some minor changes to the resolution.
I do not think the resolution should be engraved in stone. There are things that can be improved. I hasten to add that, as far as the basic principles of the resolution are concerned, I support them. However, there are two things I am concerned about, one being the matter raised by Senator Walker, section 44. That worries me. I feel that the committee will have to look at that. I am not sure whether Senator Walker is reading into that something that was not in the minds of those who drafted it—perhaps it was.
Senator Flynn: Well, I am.
Senator Buckwold: In any case, in my personal opinion, it is a section that should be watched carefully and discussed by the committee in depth, with all its implications.
Secondly, I am concerned about the time limit outlined in the resolution. At one time I was ready to move an amendment
that we change the time limit, but I realized that this is not the time nor the place to do that. I would ask the Leader of the Government to consider the implications of the committee having to report by December 9.
Honourable senators, this concerns me, because I would like, in the spirit of keeping this country together, to give Canadians an opportunity to feel that they were given a chance to make their presentations to the committee. I know it will be impossible for the committee to hear everyone. I can think of hundreds of organizations which would want to appear before the committee. The Leader of the Government has outlined some of them, and I could give you a list of another 50 organizations. I do not know how the committee could hear from all of them, read their briefs, or even give them time to prepare their briefs.
By the time the committee gets going, I suppose another week will have gone by. That puts us well into November, and leaves them just a little over a month to try to develop a consensus that would accept the changes that will affect the future of this country for possibly hundreds of years. I do not know if that can be done in 30-odd days. I know that the good Lord made the earth in six days and rested on the seventh, but he had some supernatural powers. I am not sure whether this committee will have the same kind of powers to enable it to come in with a report in about 30 days. Even for cosmetic reasons, it is important that that date be reviewed.
I hope that, just as the Prime Minister has indicated to the Premier of Saskatchewan he is prepared to make some changes in the resource situation, the government will give careful thought to increasing the time span. I am not suggesting the committee be left without a reporting date, because I agree it could go on endlessly, but I do suggest that another month or two should be added to the time limit to allow the committee to properly perform its functions and review the presentations.
I am also a little concerned about the business of subcommittees of the main committee. That means that a committee of 25 members might be divided into five subcommittees, with each hearing presentations. That might be the only practical way for it to do its work, but it seems to me that if I were presenting a brief which I felt was important I should like to present it to the main committee and not a subcommittee. I would feel that my presentation would not receive the kind of impact that I considered proper. I think that has to be considered with respect to the operation of the committee. I am not in any way saying that there should not be subcommittees. Probably there will have to be, but I think the main committee should be there to hear the presentations of major organizations from across the country.
Finally, I wish to put in a word for our native people of Canada who are also concerned about this. I am not sure how we are going to satisfy them, but as a senator from a province with a large percentage of its population of Indian and native descent—and I suppose I could also speak for the Inuit who are not part of our region—I wish to plead that the committee, when it is established, consider carefully the entrenchment of their rights within the law. This is going to take a fair amount of consideration. I hope the committee will hear from as many native organizations as possible, so that they will feel that they are being fairly dealt with, because just as western separatism is something people say is not a reality, so, in the eyes of many, Indian unrest is something one reads about in the paper. It is there too, and the goodwill of citizens has to be nurtured in order to accommodate to our Canadian scene the very real problems facing the native people and their descendants.
Honourable senators, I appreciate very much the opportunity I have had to express the views of Saskatchewan on this very important document. In closing, may I say that I think we are going to be able to meet the problems. Canada always has. We have gone through two major wars; we have had other significant pressures on federalism. I am satisfied that the goodwill of Canadians on this side of the house, on the other side of the house and in the provinces must, in the end, lead to a stronger and more united Canada.
Senator Smith: I wonder if Senator Buckwold would mind my asking him a question for purposes of clarification on only one point in what I think to be an excellent speech.
He partially answered my question, I think, by a comment he made himself. On more than one occasion he referred to a contest or conflict between the west and the east, and I just want to make absolutely sure that when he talks about the “east” in that context, he does not include the Atlantic provinces.
Senator Buckwold: I can assure the honourable senator that when we in the west speak of the west versus the east, it has nothing to do with the maritimes. The maritimers are our friends. They are the people who have shared the problems we have had with the domination of central Canada, which basically is Quebec and Ontario.
When we in the west talk about our conflicts with the east, I can assure you that it has nothing to do with any concern we have about, or any lack of appreciation, love or admiration for, our friends in the Atlantic provinces.
Hon. R. James Balfour: Honourable senators, it is with feelings of some anxiety that I enter this important constitutional debate today. Unlike at least one of my colleagues from Saskatchewan, who has preceded me today, it is my conviction that the Government of Canada has set itself upon a course of constitutional change which could, if carried to a conclusion in the manner the Prime Minister proposes, destroy this country of Canada as we know it.
At the outset, I wish to make my own position crystal clear. I do not consider myself to be primarily a western Canadian; I consider myself to be primarily a Canadian, with every right and freedom that that term implies. That is not to say that I would not vigorously oppose Prime Minister Trudeau on the question of constitutional reform, or Mr. MacEachen on his budget proposals, or Mr. Lalonde on his energy proposals, on the ground that they discriminate against the west. But I shall
do so from within the system and according to the rules of the system.
However, in conversations which I have had over the past several months with individuals and groups in the west, who are anything but zealots and radicals, it has become clearly and painfully obvious to me that an undercurrent of anger and resentment is developing out there which could, if left unchecked, threaten the very existence of our country and its institutions. There is a growing perception that central Canada, specifically the provinces of Ontario and Quebec, are determined to dominate the west and are prepared to take whatever legislative steps are necessary, fiscal or otherwise, to achieve that end.
I do not say that that is necessarily the fact, but I do say that that is the perception. I implore honourable senators opposite to heed these words of warning. They are not uttered lightly; they are uttered sadly.
One need only examine the history of western Canada to appreciate that it has the capacity to undertake political protest movements that in the past have had profound impact upon this country of ours, and we would do well to heed and be responsive to the sense of outrage which is now growing out there day by day.
Turning now to the resolution before us, and to the proposed resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada, I doubt that there is an honourable senator in this chamber who does not agree with the proposition that it is past time when the patriation of the Canadian Constitution should take place, and who would not accept the amending formula devised at the so-called Vancouver Conference of First Ministers held earlier this year.
Surely that is common ground. And if this debate were limited to that question alone, it would be quickly terminated and we would then be in a position to turn our attention to other matters of urgent and pressing necessity, such as the management of the Canadian economy, with all that that implies in this period of massive deficits and double-digit inflation.
Unfortunately, honourable senators, as the opposition leader in the Senate so eloquently pointed out yesterday, so straightforward a proposition is not what is before us. What the Government of Canada proposes in the proposed Address to Her Majesty, which is before us, is fatally flawed in at least two fundamental respects. The resolution, in short, contains a power which could destroy the federal system in Canada. I refer, of course, to section 42 of the proposed Constitution Act, 1980, which gives the Government of Canada the power to amend the Constitution by referendum over the heads of the governments of the provinces—a power which is totally at odds with the constitutional conventions and traditions of this country extending back over 1 13 years of its history.
There are men with political experience and background in this chamber far exceeding that of my own, and I suggest that they will not disagree when I identify the dangers inherent in constitutional change by referendum. We all recognize that public sentiment for this or for that is subject to swift and radical change over short periods of time. Surely a process of referendum is a totally inappropriate method by which to undertake change to so fundamental a document as the Constitution of a nation like ours.
My concern in this connection is exacerbated by the process which we have all witnessed over the past few weeks of massive amounts of public funds being deployed by this government in a slick media advertising campaign intended to sell the government’s position like a box of soap flakes, while at the same time failing totally to enlighten the citizenry with respect to the basic implications of what they are really about with this resolution.
Section 42 contains potential for abuse which would alarm civilized legislatures in any democratic state; but it contains a special threat to our own democratic institutions in this country. Section 42 would permit the federal government, with a manipulative majority in a referendum, to end the federal system.
The question it poses, honourable senators, is simply this: Should there be two parties to a constitutional decision, or just one—the federal Government of Canada?
In May 1980 the Prime Minister of Canada, Mr. Trudeau, the Leader of Her Majesty’s Official Opposition, Mr. Clark, and Mr. Claude Ryan, the Leader of the Liberal Party in Quebec, campaigned across that province, promising the people of Quebec a renewed federalism, and Quebecers responded to that message. Neither Mr. Ryan nor Mr. Clark have changed positions. They both still believe in the principle of federalism, adapted where necessary to the reality of today’s Canada.
Mr. Trudeau, on the other hand, proposes to put in place a mechanism whereby our federal state can be converted unilaterally to a unitarian state. Rather than renewing our Canadian federalism, the central government may destroy it.
I turn now to the method by which the government proposes to achieve these far-reaching and fundamental changes to our Constitution. Are they to be debated in the Parliament of Canada, where members of Parliament and senators representative of all of our regions would have the opportunity to express their concerns and to propose amendments where necessary and to place on record the views of those constituencies and regions for which they have legislative responsibility? The answer, of course, is “No”.
What the Government of Canada proposes to do by this document is to achieve fundamental constitutional change to this country through the agency of a foreign Parliament thousands of miles away by obtaining a law which they believe will not be subject to scrutiny by the Supreme Court of Canada. The Prime Minister of this country says in one breath that the time has come to end our colonial status, and then he proposes, in effect, to enhance our colonial status by going hat-in-hand to a foreign parliament seeking basic changes to our Constitution, and at the same time circumventing the parliamentary process of his own country.
Honourable senators, that is an outrageous and sad state of affairs. What the Prime Minister proposes to do in this respect may very well, in the technical sense, be legal, but in all other respects it is wrong, and I foresee a growing possibility that our parliamentary colleagues in London will also conclude that it is wrong.
The Leader of the Opposition in the Senate yesterday reminded honourable senators of the historic and traditional responsibility of the Parliament of Great Britain to ensure that constitutional amendments are not implemented by that institution where the result would be to ride roughshod over or encroach upon the existing constitutional prerogatives of our provincial governments; to function, in effect, as trustees for provincial rights in the face of unilateral constitutional initiatives taken by the central government.
We came into being as a federal state and we continue to exist as a federal state, with all that that implies. Our country is the product of a contractual relationship established 113 years ago, and it is fully implicit that one party to such a contract has no right unilaterally to alter its terms. Fundamental changes to be made to the Constitution of Canada should be made in Canada by Canadians, and not by the Parliament at Westminster in the course of patriation. These changes should be made when the Constitution has been returned to this country with an amending formula agreed to by both levels of government. We should discern among ourselves what the Constitution should contain, and we should implement those changes by due Canadian parliamentary process.
Honourable senators, the resolution before us is a bad law, unsound in respect to the proposed amending formula by referendum contained therein, and morally wrong with respect to the method proposed to implement those changes. One can only speculate at this stage as to why the Prime Minister is intent upon circumventing the Canadian Parliament in the course of obtaining his constitutional objectives, but there is a profound suspicion developing that his methods are dictated by a fear that what he seeks to achieve overseas would be, if passed by the Parliament of Canada, ultra vires legislation.
That suspicion, amounting in some quarters to a conviction, could very easily be refuted by the Prime Minister if he has the courage to do so. He could at this time, honourable senators, direct a reference to the Supreme Court of Canada on a very simple and straightforward question, namely: Would the proposed resolution to Her Majesty the Queen respecting the Constitution of Canada, if implemented by the Parliament of Canada, be intra vires of that Parliament? That procedure could be initiated, argued and decided in a matter of days or, at most, weeks. I invite honourable senators opposite to give the suggestion serious consideration.
To repeat, honourable senators, we on our part are fully in favour of expeditiously patriating our Constitution, with an amending formula, and the formula we propose is the Vancouver formula which was raised at the last First Ministers’ Conference and on which a consensus was obviously possible. But we vigorously oppose substantive changes to that Constitution being implemented outside the ambit of the Parliament of Canada by a parliamentary institution foreign to our country.
Hon. Royce Frith (Deputy Leader of the Government): Honourable senators, I wonder if I might ask the honourable senator a question. He used the pronoun “we”, but do I understand that the position of the official opposition is that they would accept the Victoria formula, and would accept patriation with an amending formula if it were the Victoria formula?
Senator Balfour: The Vancouver formula, yes.
Senator Frith: Oh, yes, the Vancouver formula.
Hon. Peter Bosa: Honourable senators, I am pleased to take part in this important and historic debate on the patriation of the Constitution. I am in general agreement with the principles of the resolution, although I intend to criticize the government for not going far enough in some areas—the Charter of Rights, the absence of any reference to multiculturalism, a more concise definition of our native people and the inclusion of consumer protection.
There should be other provisions in this package as well, but I realize that this is only an initial step which will provide us with a framework for future amendments and additions, such as the preamble to the Constitution which I hope will contain a definition of the ethnic structure of Canadian society.
As a senator from Ontario I express the views of my province as I perceive them, and I am pleased to say that the constitutional package is also supported by the premier of that province, the Honourable William Davis, a man who heads a government whose political persuasion is different from that of the Prime Minister of Canada, which lends credibility to the amendments.
I also express the concerns of people voiced to me by representatives of ethno-cultural communities, not all of whom are from the province of Ontario, but also from outside the province, as well as the National Indian Brotherhood.
There can be little doubt as to the tremendous symbolic value to Canadians of patriating the Constitution, thus severing the final psychological colonial link. The existing situation has been a continual source of embarrassment to Canadians, and confusion to others. No other country is in this most ambiguous state, and it should not be surprising to learn that even many of our American neighbours, including those who play political or academic roles, have no clear understanding of the nature and functioning of the Canadian government. As recently as the weekend of October 18, when a number of distinguished Canadian and American politicians, bureaucrats and academics gathered for a two-day conference to compare the roles of the Canadian Prime Minister and the American President, a number of comments made by participants were captured and recorded by reporters as indicating an impression of Canada as a vaguely monarchical and semi-autonomous state.
The significance of these comments is obvious. For Canada to be perceived by outside observers and, more importantly, by all its citizens as a unique and independent entity, it is
therefore imperative that the last vestiges of colonial rule be eliminated. But in addition to the general benefit of promoting a sense of national identity and patriotism, patriation may also have a positive effect on relations between the various ethnic groups which comprise our population. From a practical perspective, patriation will also allow Canadian governments to deal internally with constitutional issues rather than obliging them to follow the complicated and lengthy procedures necessary to receive approval for changes in Britain. Moreover patriation will, of course, remove an onerous and embarrassing task from the jurisdiction of the British Parliament, an event which they have long awaited.
If I may digress for a moment, I recall attending a dinner in the Confederation Room some four years ago on the occasion of the visit of the then Prime Minister of Great Britain, Mr. Callaghan, who in the course of his remarks said, “You will not get an argument from us when you decide to patriate the Constitution. I only hope that we will be able to find it, when you send for it.”
On the whole, the legislation which the federal government has prepared in order to accomplish the patriation of our Constitution is admirable and deserving of praise. The Constitution Act, 1980, as it is proposed, is a clear and concise piece of legislation which will also incorporate two critical elements into the new Canadian Constitution—a Charter of Rights and an amending formula. The narrow, judicial interpretation of the 1960 Bill of Rights, which moreover applies only at the federal level, and the constitutional deadlock of the past 20 years over an amending formula, indicate the practical necessity of including those provisions in the statute.
It is not a foreign government that is amending our Constitution. We are amending it here. These are Canadian amendments. We are asking the Parliament of Great Britain to include in the package only the provisions approved by the Parliament of Canada.
In addition, it can be argued that the entrenchment of a Charter of Rights in the Canadian Constitution is a necessary moral affirmation of certain democratic and humane principles with which we wish to imbue our society.
While it has often been pointed out that the American Constitution contains such a charter, and that in the Napoleonic Code everything is codified, it should also be noted that the British Parliament, to which our system has often been compared by opponents of the charter, is presently in the process of discussing a proposal for a Bill of Rights. Obviously, such a charter is considered neither unnecessary nor incompatible with the parliamentary system by our British counterparts. Moreover, this charter, applying as it does to both the federal and the provincial levels of government, in addition to formally guaranteeing basic civil rights and fundamental freedoms, will go some way towards eliminating a number of inequalities in the protection of these and other rights which many Canadians currently experience.
For example, the specific inclusion of mobility rights will, I hope, work towards the elimination of many current situations in which Canadians in the various sections of the country receive different levels of legislative protection on a range of issues. Currently, the B.N.A. Act does not specifically guarantee the freedom of movement of persons in Canada; only the movement of goods between provinces is protected. Section 121 precludes the imposition of custom duties in the interprovincial circulation of goods.
Although the free movement of persons is presently hindered in certain fields, legislation which expressly requires or favours residential qualifications for employment within the province is a relatively new phenomenon. The Petroleum Resources Act of Nova Scotia and the Petroleum and Natural Gas Act of Newfoundland, both require that preference be given to residents of those respective provinces in hiring practices in the fields of exploration and exploitation of petroleum resources. Nova Scotia has also enacted a provincial residency requirement in its Civil Service Act. Quebec, too, for awarding government construction contracts and, generally, in the hiring of construction labour, has stipulated by way of regulation that preference be given to local manpower. Qualification and certification requirements for professionals and tradespeople vary between provinces to further hinder mobility.
Furthermore, in the field of consumer protection, and more specifically relating to the services of travel agents in Canada, we find that only three provinces, namely, Quebec, Ontario and British Columbia, have enacted statutes that protect travellers against financial loss in the event of bankruptcy by licensed travel agents. But what is more serious, if not unacceptable, is that the British Columbia legislation, contrary to the other two statutes, restricts the protection offered to residents of British Columbia. In other words, while the Quebec and Ontario consumer protection acts, as they relate to travel agents, are designed to protect all Canadians, the British Columbia act is parochial in its scope in that it limits its protection to residents of that province only, or, in the case of non-residents, to those who have contracted travel services that are wholly located in that province.
I have written to Mr. Bennett, the Premier of British Columbia about a specific case involving the Famee Furlane, a member of the Federation of Fogolars Furlans of Canada, a travel agency in Vancouver, and the Travel Assurance Board. Because of the restrictions of the British Columbia statute there are hundreds of Canadians who have suffered substantial financial losses recently.
Let me read a letter I received in connection with this case. It is addressed to the Honourable Peter Bosa, the Senate of Canada, Parliament Buildings, Ottawa, Ontario, and reads:
Dear Senator Bosa:
The Premier, the Honourable W. R. Bennett, has forwarded to me his recent correspondence with you concerning the Famee Furlane and the Travel Assurance Board.
In my earlier letter of April 9th to you, I explained the terms of the Travel Agents Act that limited the eligibility of non-residents of British Columbia to claim on the Travel Assurance Fund. It would be inappropriate to consider ex gratia payments to people who were not eligible to benefit from this legislation, as such an action would circumvent the intent of the legislation and could be seen as a precedent for all future claims which may be dismissed by the Board.
I have noted your views on British Columbia’s legislation in comparison to similar travel legislation in Ontario and Quebec.
And it is signed by James A. Nielsen, Minister of Consumer and Corporate Affairs.
The examples that I have mentioned are limited to matters expressly provided for by legislation. That says nothing of current practices or even existing administrative directives, which are, as well, guided by narrow protectionism. While some people see such measures as legitimate means of favouring the local interests of the provinces and their residents, those measures inevitably promote the balkanization of our country and directly offend the essential rights inherent in citizenship. Such provincialism is most unfortunate at a time in Canada’s history, when national unity and a transcending spirit of co-operation and generosity are of the utmost importance. If such provincialism is not halted, there will soon exist in Canada, to borrow Mr. Chrétien’s words, not one Canadian citizenship but ten provincial ones.
Not all of the inequalities in the enjoyment of rights that have just been pointed out will be eliminated under the constitutional charter, when it comes into force. It is, however, reassuring to note that the new charter will ensure that all Canadians will be able to enjoy, irrespective of province of residence, fundamental rights and freedoms, mobility rights regarding residence and the earning of a livelihood, and, finally, minority language educational rights. With respect to other fields, especially those which affect Canadians directly as individuals, such as consumer protection, it is hoped that the beneficial effect of the new charter will spur on all provinces to abandon their provincialism and to embrace a much wider view that will, it is submitted, constitute a major step in closing, in a real way, the gaps that are growing among the regions of Canada.
Finally, I come to an omission in the proposed legislation which is particularly distressing. I refer to the lack of any reference whatsoever to the multicultural nature of Canada. In 1978, a number of government spokesmen, notably Mr. Lalonde and Mr. Cafik, made promises regarding the inclusion of the concept of multiculturalism in any future revision of the Canadian Constitution. In A Time for Action, the chapter headed “The Principles of Renewal” contains the following statement on government policy regarding the enhancement of the cultural mosaic:
The renewal of the Federation must lead to respect for cultural diversity and for the right of every citizen regardless of ethnic origin, to equal opportunity. Every cultural community should be able to rely on the goodwill of governments in preserving its own cultural heritage and in discovering and appreciating those of other communities.
For more than a century, people of other ethnic origins have come to Canada and settled beside those of British and French ancestry. A large number of them have joined the English-speaking majority and others the French-speaking majority, without in the process losing their individuality.
With the sheer weight of their numbers, it is natural that the French and British cultures occupy a major place in Canada. But there is no question of having only one or two official cultures. Canadian society must promote cultural diversity, clearly and explicitly.
This diversity will only be protected if we ensure that Canadians of all ethnic origins have equal opportunities and full protection against discrimination.
There is no question that a number of basic rights and freedoms are guaranteed to persons of all ethnic groups in their own right as individuals under the proposed charter. However, something more was, and still is, envisaged by Canada’s various ethnic groups and immigrants, many of whom no doubt feel particularly disappointed by the omission of any positive reference to the promotion of a multicultural society.
A Time for Action also states:
The renewed Constitution should contain a Statement of Aims which would reflect the understanding of what Canada means to all of us—native peoples, members of our two great linguistic communities, and people of many lands and cultures who have chosen to make Canada their home. The government will be putting forward a Statement in the hope that it may assist the search, by the people and by governments, for those ideal words which will best express what is in our hearts.
The constitutional legislation which followed Bill C-60 did not, in effect, do this, and the legislation currently before Parliament, while not complete, does even less in this regard.
In 1963 the federal government established the Royal Commission on Bilingualism and Biculturalism with the mandate of conducting a broad and comprehensive inquiry into bilingualism and biculturalism. Book IV of the royal commission’s report stated:
Many of the non-British, non-French groups accept bilingualism but categorically reject biculturalism. They concede Canada to be a country with two official languages, but argue that it is fundamentally multicultural.
In October 1971, the Prime Minister tabled in the House of Commons the Policy of Multiculturalism which was a direct response to the recommendations of the Royal Commission on Bilingualism and Biculturalism. This policy reflects the plural-
istic composition of our society within a bilingual framework. The unanimous support given by the opposition parties was an endorsement of a national reality.
Undoubtedly, the preamble to the Constitution will contain a clear definition of Canadian society as it is, and as it should be, recognized for its pluralistic nature. But a reference to the preamble is not sufficient to guarantee the rights to all Canadians to maintain and foster their respective cultures.
I firmly believe that cultural diversity is the very essence of Canadian identity. Each individual in this country has the right to preserve and develop his own culture and values within the Canadian context. The fact that we have two official languages does not make a particular culture more official than another. It is precisely for this reason that I recommend to the joint committee that the wording in section 22 of the proposed Canadian Charter of Rights and Freedoms be amended by inserting the words “and culture” after the word “language.” It would then read as follows:
Nothing in section 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language and culture that is not English or French.
I would urge the committee to consider amending section 24 by making it refer specifically to Indian people and by adding another sentence at the end, which would read as follows:
Nor should it be construed as denying the positive actions which the federal government has already taken and will continue to take with regard to its policy of promoting multiculturalism, in order to ensure a vigorous environment for the many origins, creeds and cultures which comprise the Canadian society.
Senator Frith: How would the whole section read?
Senator Bosa: At the end of section 24 we add another sentence. Perhaps I should repeat it.
Senator Frith: Read the whole section.
Senator Bosa: Section 24 reads:
The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada, including any rights or freedoms that pertain to the native peoples of Canada.
The National Indian Brotherhood has objected to the description “native peoples”, because it believes it may be confused with the Métis people. It wants specific reference to Indian people. I would recommend that we add to this section the following sentence:
Nor should it be construed as denying the positive actions which the federal government has already taken and will continue to take with regard to its policy of promoting multiculturalism, in order to ensure a vigorous environment for the many origins, creeds and cultures which comprise the Canadian society.
If those amendments could be incorporated in this constitutional package, it will go a long way toward reassuring the ethno-cultural communities that this government is not just paying lip service to them. I hope that those honourable senators who will be members of the joint committee to consider the constitutional package in detail will take note of these proposed amendments, and make vigorous representations for their adoption.
On motion of Senator Roblin, debate adjourned.