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Resolution Respecting Constitution Act, 1981 - Commons Debates

Mr. Serge Joyal (Parliamentary Secretary to President of the Treasury Board): Mr. Speaker, I rise before you today to take part in this debate somewhat like those enthusiastic and fervent pilgrims in the Middle Ages who were returning from Mount Saint-Michel, from the Ganges or from Mecca. During the sittings of the Joint Committee on the Constitution which lasted three months and a half, I had the opportunity to listen, to consider and to ponder on each and every point and objection; I did reconsider freely whether or not I should belong to this country. The witnesses who appeared before the committee did us an invaluable service by allowing its members to get out of their cities and of their villages to learn during all those sitting hours about our historical difficulties and advances, about the many facets of the people of different cultures who inhabit this huge land of ours. How could we thank the 314 individuals who, on behalf of their group, came to openly state their grievances, their expectations, their vision of this country which they would like to see fairer, more generous and more tolerant? The members of the committee had a common characteristic: they were hard working people with a keen sense of responsibility. During the 300 sitting hours the public could appreciate to what extent the members of the committee discharged to the best of their ability and in all honesty, their responsibility to assist the House in making an historic decision. I am grateful to each of them for having shown us the frustrations of Western Canadians as well as the expectation of our founding people that this country will again become a land of brotherhood and sharing. I am deeply grateful to my colleagues in Parliament and to the honourable senators for having entrusted me with those privileged duties which was essentially to help them to the best of my ability discharge their responsibilities.

I should like to thank especially the hon. member for St. John's East (Mr. McGrath) who is in the House today and, of course, the hon. member for Lincoln (Mr. Mackasey), both of whom, on behalf of their parties, have maintained that confidence and that trust in the chairmen. I think if we are in a position today to debate such a proposed resolution, it is due in most part to their respect, their trust and their ability to express their opinions in a way which helps the Canadian people.

  Mr. Joyal: I should now like to share with the House what lessons I have learned. This country, Canada, Mr. Speaker, was not built in ease and euphoria. The French settlers who came in the seventeenth century had to fight against a hostile environment at the cost of hardships difficult to imagine today before taking root in this land. In the eighteenth century, confrontation with a new occupant was a constant source of political tensions.
  The rebellion of 1837 and the struggles for a responsible government took up the nineteenth century until confederation. Since 1867, Canada has witnessed a slow and lengthy process of political evolution. Step by step, it has won its autonomy, its independence, its sovereignty. Today, we have come to the last stage of the old era and the start of the new. We now face a choice, a fundamental one. We must decide what kind of country we want to build. That choice cannot be easy or devoid of growing pains. No country in the world has ever won its official independence without difficulty, without debate, without emotion, without passion. Those who would imagine that the Fathers of Confederation conceived the federal union of this country in easy discussions, in social gatherings at Charlottetown or at Quebec should read again those pages of our history. Those who would believe that the people took an active part in the efforts that led to the birth of Canada are totally mistaken. In fact, the public was almost completely excluded.
  On November 7, 1864, Antoine Aime Dorion, the hon. member for Hochelaga, my predecessor in this House, denounced before his electors the secret nature of the confederation debates saying, and I quote:

  You already know that a conference was held in Quebec City. ..The highest interests of the country were discussed at meetings held in camera. , .The lack of any official statement on the proceedings of the conference, the complete silence of the ministers of Lower Canada about the details of the coming conference seem to indicate that this measure is to be rushed through without consulting the people, without even giving them time to study its provisions and evaluating its bearing, its effects.
  Today, as we debate this resolution, after 300 hours of proceedings under the light of television cameras, after inviting Canadians from every part of Canada to share their views and opinions with us, we certainly cannot make serious comparisons with the procedures followed by our predecessors.

  I might add that during the 106 committee sessions the opposition spoke for two thirds of the time as follows: the official opposition used 43 per cent of the time; the New Democratic Party 22 per cent; the Liberal Party 34 per cent.

The mandate of the committee was twice extended at the request of the opposition; first until February 6 and then until February 13. Second, the opposition agreed that this was sufficient time for the committee to complete its work. Lastly, at least three million citizens were able to watch the debates, live or taped, on television.

The decision we are about to make for the future of our country after more than five months of sustained political debates will appear very clear to all Canadians. What does it involve? Its first objective is to correct historical anomaly, the last remnant of an obsolete colonial status. Canada is one of the seven most important countries in the western world. Next June, it will host the annual conference of the big seven and will sit with the United States, Japan, France, Great Britain, Western Germany and Italy. However, it has less control over its constitution than Vanuatu, the Seychelles or Santo Domingo.

Those who do not believe what I have just said or who think it is far-fetched only have to read the conclusions in the report of the foreign affairs committee of the British parliament to realize that all imperial pretensions are not dead.
   I am referring, of course, to the view of a few hon. members and not to the view of the British government. Yet the fact remains there are a few who believe that Canada remains at the mercy of the Parliament which is not responsible, directly or indirectly, to the citizens of this country.

Several people, when the present move was initiated, concluded that it was meaningless and would not significantly alter the status of Canada. If the purpose were only to rid once and for all the minds of some parliamentarians of our colonial past, it would still be worthwhile. But we cannot reject all the responsibility for our present state on our mother country. It is because of our failure to agree on the means to control the fundamental changes in our Constitution that Westminster retained its colonial trusteeship. As a matter of fact, in 1931 , when the Parliament of London, through the Statute of West- minster, wanted 10 grant its former colonies their constitutional independence, Canada, and Canada only, asked for that power to remain in London, since it could riot agree on an amending procedure for the Act of 1867, This is what Mr. Ernest Lapointe, the then minister of justice, confirmed in the House on May 11,1931, and I quote:

    In that matter the imperial parliament is not really a dominating power; it acts as a trustee and as a guarantor and merely gives effect to the will of the Canadian people.

    And let us not think that the 1867 Constitution has never been amended. Quite the contrary. Since 1867, Westminster has brought in 21 amendments. How were these amendments made? In three cases, 1893, 1927 and 1931, Westminster amended the Constitution on its own to allow for a technical reform. In all other instances dealing with major changes, a request was presented either by the Canadian government, as in 1871 and 1875, or, since then, by the Canadian Parliament. Never has the British parliament refused an amendment on the basis that provincial consent had not been obtained. On the other hand, never has the British parliament accepted an amendment requested by a province. Thus in 1868, when Nova Scotia wanted out of confederation in accordance with a unanimous resolution by its assembly and a petition by 36 of the 38 assembly members, Britain replied that the Government of Canada was the only representative of the interests of the confederation before the imperial parliament. Only in one instance, in 1907, did the British parliament modify the terms of a resolution passed by the Canadian Parliament. The Canadian amendment was to increase federal subsidies to the provinces as a final and unchangeable rule, but London removed that condition because in the opinion of Sir Winston Churchill, then parliamentary under-secretary for the colonies, it seemed totally inappropriate in the legislation since Parliament could not relinquish its sovereignty and its power to amend acts.
   Since 1931, spokesmen for the British government have always considered that Westminster was duty bound to agree to the requests of the Canadian Parliament. Thus, in 1940, when the unemployment insurance amendment was debated in London, the British Solicitor General stated, and I quote:

  We square the legal with the constitutional position by passing these acts only in the form that the Canadian Parliament require and at the request of the Canadian Parliament.
   My justification to the House for this bill-and it is important to observe this-is not on the merits of the proposal. which is a matter for the Canadian Parliament; if we were to embark upon that. we might trespass on what I conceive to be their constitutional position. The sole justification for this enactment is that we are doing in this way what the Parliament of Canada desires to do.

       Mr. Joyal: He continues: I do not know what the view of the provincial parliaments is - It is sufficient  justification for the bill that we are morally bound to act on the ground that we have here the request of the Dominion Parliament and lhat we must operate the old machinery which has been left over at their request in accordance with their wishes.
    In 1943 when Quebec objected to the adoption of the amendment aimed at redistributing the seats in the House of Commons, the Secretary of State for Dominion Affairs, Mr. Atlee, declared, and I quote:
 I have no information as to any province objecting. but. in any case. the matter is brought before us by an address voted by both Houses of Parliament and it is difficult for us to look behind that fact.

    Again in 1946, when Quebec objected to an amendment to change the principles of representation in the House of commons, former Canadian prime minister Viscount Bennett stated before the House of Lords, and I quote:

Canada is the only one of the Dominions in which a party majority can amend the Constitution. They cannot amend it directly but they do it indirectly, because we have agreed that we will consent to pass any legislation that they may petition to have passed by this Parliament.

    Similarly, in 1949, when an amendment enabling our federal Parliament to amend its own constitution was moved, no mention was made to the British Parliament that certain provinces were fiercely opposed to that amendment. The Secretary of State for Commonwealth Relations said, and I quote:

The bill is cast in the terms of the address adopted by the federal Parliament of Canada and, of course, we are all ready to do what they desire.

When in 1960 we had before us the amendment providing for compulsory retirement of Superior Court judges at age 15, the Secretary of State for Commonwealth Relations declared, again I quote:

-legislation by the United Kingdom Parliament is still necessary where the subject of the amendment is one which affects the interests both of the federal Parliament and the provinces.
    We are therefore to all intents and purposes acting in what is a formal capacity for the Canadian Parliament in a matter which is solely its concern. In accordance with long-established precedent, we refrain from discussing the merits of a Bill submitted to us amending the British North America Acts when this Bill has been introduced in consequence of Addresses to Her Majesty adopted by both Houses of the Canadian Parliament.

Clearly, Mr. Speaker, the position expressed on many occasions by spokesmen of the British government cannot be misunderstood. Indeed, it is crystal clear. On 21 occasions, or each time it was asked to do so, the British Parliament agreed to a request of the Canadian Parliament without concerning itself with knowing whether the provinces had been consulted, whether they had expressed their agreement or whether they had disagreed.
     Indeed, the Canadian Parliament is not required to consult the provinces and get their agreement before submitting a request to the British Parliament. The Chief Justice of the Manitoba Court of Appeal explained this quite well and substantiated it in an elaborate judgment given on February 3 last.ln any case, long before this judgment was given, Canadian experts had already recognized this fact. For instance, in 1935, Professor Kennedy appeared before the Special House
Committee on the Constitution of Canada and said the following on this subject:

I do not believe that the Parliament of Canada has the least legal obligation to consult the provinces in the process. This might be very good policy, but policy is not law. I believe that the Canadian Parliament can submit any request to the British Parliament.

  This view was shared at this time by Professor Norman Rogers. It was also repeated before committee members by Professor Gil Remillard, who had been invited at the suggestion of the official opposition, and by Professor Gerard Laforest, invited at the suggestion of the government party. This same view was expressed in the House by the Hon. Ernest Lapointe in 1940, by the New Brunswick premier, the Hon. Mr. McNair, in 1950 at a federal-provincial conference, and more recently, in 1978, by the Hon. Ron Basford and the Hon. Marc Lalonde. There is therefore no obligation for the government or the Canadian Parliament to consult the provinces or to obtain their consent before making a request to the British Parliament. The Manitoba Court of Appeal confirmed this once again on February 3 last. In the present context, to amend the Canadian Constitution, the Canadian Parliament can therefore submit a request to the British Parliament which, on 21 occasions since 1867, has always agreed to such requests without taking a position on their contents. Mr. Speaker, some people have thought, quite wrongly, that until now, the rule of unanimity applied. Again this week, hon. Senator Tremblay, whose integrity and commitment I respect, stated on the state-owned network that unanimity is the rule for amendments to the Constitution. According to the general impression, the provinces are better protected by the status quo which would be guaranteed by the so-called unanimity rule. According to this rule, all provinces must agree to any constitutional change. Unfortunately, as we have seen, this belief is not substantiated by our political history or the constitutional precedents.
   In fact, we now have a constitutional amendment procedure which does not require the unanimous consent of the provinces, but a simple majority vote of the members of both Houses of the Canadian Parliament. Such are the teachings of history and jurisprudence. But, in my opinion, this cannot last if we want to truly really and thoroughly reorganize our federal institutions and adapt our Constitution to our present needs and future aspirations.
   The Canadian Parliament must not retain this unlimited power to amend the Constitution of Canada by itself.
   The rule of unanimity is an illusion behind which the provinces have taken refuge, Quebec in particular. It was not realized that this protection was a myth. Through its rejection of the amending formula in Victoria in 1971, Quebec has laid itself bare and is now shouting "rape!" That is what we must correct. The present resolution is doing just that by writing into the new Constitution the provinces' formal right to express their views on all future amendments. What this resolution sets out to do is take away from the federal government the power to amend the Constitution on its own by going to Westminster and giving the provinces the right to propose and approve any change that might affect their power. Far from taking anything from the provinces our action will confirm the partnership status of the provincial governments. The level of government that is actually losing the most power in this process is the federal Parliament.
   The resolution under consideration also contains a provision that is quite fair and reasonable. In the present circumstances, as we have seen, when the federal government and the provinces disagree, the federal government alone may decide to act. From now on it will no longer have that power; it will have to come before the Canadian people which will settle the question following a national referendum.
   Many people have raved about the newness and originality of that proposal. Here again, our history shows that this idea was put forward, at least since 1864, by none other than one of my predecessors in Hochelaga, the Member of Parliament, Antoine Aime Dorion. He wrote the following in 1864, and I quote:

  When it is a matter of doing nothing less than rebuilding the Constitution, laying down a new foundation for the political structure, the people, whose interests and prosperity are affected by such changes, must be consulted.

   Dorion was already calling for a referendum. Later, in 1927 , the Canadian League suggested the same solution before the Special Committee on the Canadian Constitution, and I quote:

That no repeal or alteration of any of the provisions of Sections 91 and 92 or of the basis of representation in the House of Commons or of the Senate shall be valid unless approved by the legislatures of a majority of the provinces or by a referendum supported by a majority of the total vote and by a majority of the voters in a majority of the provinces.

Two years later, in 1929, Brooke Claxton, who was to become a minister in the cabinets of Mackenzie King and St. Laurent, took up the same idea anew, and I quote:
Keeping in mind these considerations, it is suggested that power be given to the
federal government to amend the BNA Act by Federal Act with the consent of the legislatures of five provinces or alternatively at the option of the federal government, a favourable vote on a referendum of the majority of votes in the country and in at least five provinces.

That was in 1929, Mr. Speaker. That same year, the Manitoba Free Press took a stand and published the following:

The Dominion parliament, we suggest should, subject to limitations covering the rights of minorities, have the power to pass legislation amending the BNA Act; and this should come into effect unless a certain number of provinces, by their governments, ask for a vote of the people. In that event a national referendum should be held, ratification being contingent upon a majority vote over the whole Dominion and in five of the nine provinces.

The suggestion that the Canadian people should be called upon to take decisions in difficult situations is not new. In 1916, the Manitoba legislature intended to enforce its legislations by way of referenda. Newfoundland joined confederation  in 1949 following a referendum. In May of last year, Quebec held a referendum when it tried to change the nature of its ties with the rest of Canada. Last fall, the Alberta government introduced a bill to authorize, if needed, the holding of a referendum. Whoever claims that the concept of a referendum is entirely foreign to the Canadian constitutional reality is ignorant of our tradition, both past and present. Who can object to the Canadian Parliament holding a referendum to decide upon a basic issue when the provinces intend to use such a mechanism either to join or leave the Canadian federation? Who can object to the Canadian people deciding, when the 11 first ministers fail to agree on the basic changes which our institutions and legislations require? Britain itself, when it considered joining the Common Market in 1971, held its Own referendum.
   The suggestion that such a mechanism is inconsistent with our tradition is absurd. In today's world, a referendum is the only way to associate the will of the people with changes which have become necessary. That is obvious. In holding a referendum, the Canadian Parliament is asking the Canadian people to exercise the power to decide upon whatever changes are wanted. Theirs will be the last word. Those changes, Mr . Speaker, have become imperative. As a matter of fact, Canadians have for a long time deplored the colonial status of their Constitution. In 1931, Henri Bourassa made the following statement in the House, and I quote:
  It is not without a certain amount of shame that I realize that in this year 1931. Canada is still lagging behind all the other dominions in the exercise of unreserved autonomy.
  In 1949, the then Prime Minister of Canada, the Right Hon. Louis St. Laurent, made the following statement at a dinner given in his honour at the Royal York Hotel by the mayor and council of the city of Toronto, and I quote:
We Liberals also feel that we should find a way to amend our Constitution right here in Canada. This will not be easy. We do not want a Constitution that is too rigid, however we want to be sure that our Constitution includes the most complete safeguards for provincial rights, the rights or both official languages, and all other historical rights that are the sacred heritage of our national union.
  Such, Mr. Speaker, is the purpose of our efforts. We want to fulfil now the hope expressed for so long by ensuring that our Constitution protects the rights and freedoms of all Canadians. Canadians generally have a feeling that the basic rights and freedoms are very well protected in Canada. However, even though Canada maintains a good record as compared to other nations, our history is not beyond reproach. The period before confederation shows many instances of discrimination, often violent. Some of the more obvious cases were the genocide of Beothuk Indians in Newfoundland, riots between Orangemen and Roman Catholics in By town in 1848 and, in the Toronto of 1858, anti-French and anti-Catholic prejudice, the acceptance of slavery, as well as obvious prejudice against negroes later on.
In 1857, the attitude prevailing then was reflected in the Ontario legislature when Colonel J. Prince described the Negroes as follows, and I quote from his remarks in a Canadian legislature:
-the greatest calamity ever known in the two evil counties I have the honour of representing.
  The immigration policy of the new Canadian nation in 1867 was also discriminatory in nature favouring as it did the British and Europeans as opposed to Orientals and others. The thousands of Chinese who came to British Columbia in the 1880s were slaves to all practical purposes, to the extent that Chinese companies literally sold them under contract to Canadian mining and railway companies. Their living conditions and the general manner in which they were treated were simply not human. Let us not forget that the Dominion Elections Act of 1885 provided, and I quote:
 The expression "person" means any male person, including an Indian and excluding a person of Mongolian or Chinese race;
   No later than in 1975, there were 20 Canadian immigration officers scattered across the United Kingdom whereas there were only four in the New Delhi office to deal with all the applications filed by Indian applicants. In 1955, the Minister of Immigration stated the following, and I quote:
   I do not believe that any immigrant, wherever he comes from or whatever his skills. is worth a Canadian baby because the former must learn to be a Canadian whereas the latter is a Canadian from the very beginning.
    During the depression years, the Ku Klux Klan was strongly rooted in some parts of Saskatchewan, Alberta and Ontario. The Regina riot in 1935 and the general strike in Winnipeg provided many cases of violation of civil liberties. Later on, during World War II, 23,000 Canadians of Japanese origin were interned in various parts of Canada under the War Measures Act, even though 75 per cent of them had been born in Canada and many of them had been genuine Canadians for several generations. At about the same time, Jehovah Witnesses were outlawed; in 1940, 29 members of this sect were sentenced to one year in jail.
     In 1953, 1955 and 1957, the Quebec Padlock Act, the regulations restricting the distribution of religious literature, were challenged before the courts. Not so long ago, in 1974, in the Laval vs Bedard case, the Supreme Court ruling clearly emphasized the weakness and flimsiness of the Canadian Bill of Rights which everybody thought was adequate protection. That is what must be prevented today. Our own history is not beyond reproach. Our statutes are not stringent enough. We know about the Indian Act and its discriminatory provisions regarding Indian women; that must be kept from happening in our Canada of the future and that is what the proposal before us is all about.
  In Manila, in the Philippines, Pope John Paul II said on Tuesday and I quote:

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

 Governments are there, he said, to serve the people and protect their dignity. They cannot pretend to serve the people's interests when they do not respect basic individual rights.
  Human rights are paramount. - strongly claimed the Pope.
   What does the official opposition suggest? That the charter of rights and freedoms be referred to the provinces? But this would simply kill our proposal. Let us recall again the statements made last fall by the premiers: seven of them strongly opposed the entrenchment of a Canadian Charter of Rights and Freedoms in the Constitution of Canada, and now this is what the Premier of Manitoba had to say:
 while Manitoba actively supports the protection of human rights it opposes the entrenchment of a charter of rights on principle.
   The Premier of Saskatchewan, the Hon. Allan Blakeney, a man whom every member in this House would have thought to be all out in favour of human rights has said and I quote:

Saskatchewan is not in favour of entrenching in the Canadian Constitution the human rights which are ordinarily referred to as fundamental rights or legal rights or as the case may be. I share with Premier Lyon this view-
   The Premier of British Columbia has said:
 B.C. believes that individual rights and fundamental freedoms must be protected but we remain satisfied that the most appropriate method is through the exercise of the authority of the legislatures of the provinces and the Parliament of this nation.
   The Premier of Alberta has stated and I quote:
    So we come down to a conclusion that the better way to protect the rights of the citizens of our province is to leave that responsibility to the elected representatives.
    The premiers of Quebec, Prince Edward Island and Nova Scotia have expressed exactly the same views, that within their provincial borders rights are not threatened. There lies the Achilles' heel, the weakness of the provincial position. Everything is seen, gauged, weighed, thought out, in a strictly limited perspective confined to the territory of one province. Canada is more than the sum of its ten provinces. Ten provincial flags will never make a Canadian flag. Ten provincial charters of rights are not a Canadian charter of rights and liberties. Two provincial charters which protect the rights of the handicapped will never protect the rights of all the handicapped in Canada.
   Canada is more than the sum of its parts. Canada is a society whose citizens have equal rights and liberties wherever they live, wherever they move or wherever they want to live.
   Canada is a dream; a dream of equality, a dream of liberty, a dream in which the right to be different is guaranteed in the basic law, in which the rights of Canadians as Canadians, because they belong to this country, are the same everywhere, whether they are men or women, native or from mother countries, or whether they are immigrants full of hope who have just arrived dreaming of liberty and justice.

  Quebecers had a unique opportunity to proclaim their unswerving loyalty to this country and their faith is this resolution on May 20. My generation of Quebecers believes in Canada because they are convinced this country can be a society where the freedom to be, the right to be different, the opportunity to develop one's potential can be guaranteed in the fundamental law of the country. There are not ten Canadas, there is only one whose new foundations it behooves us to define. We do not want to retreat behind our differences, or use our French cultural identity as an excuse or a plea to refuse to join in and partake of this great Canadian endeavour which may require some adjustments in our liberties but which, in the long run, will be beneficial to more people. Sir Wilfrid Laurier understood that very well. In 1897, in Paris, he recalled the decision that Quebec politicians had had to take after the 1837 rebellion. He said and I quote:
  Those of my fellow citizens who when confronted with this double provision believed in isolating themselves and not taking any part in the national development were not few. Mr. Lafontaine who, at the time, in the absence of Mr. Papineau then in exile, was the most competent man among us, was more highly inspired. I agree entirely with his way of thinking. He thought that to isolate oneself was always an error and that, for us, particularly, to isolate ourselves would be to bury ourselves in mediocrity.
   That, Mr. Speaker, is our option, my option: As we enter the first stage in the reform of our institutions and legislation, I strongly believe that this resolution deserves the support of all Canadians because it provides essential safeguards for the preservation of their identity and the best way to achieve their ideal of a freer and more just country.