Mr. Deputy Speaker:

The Hon. Member for New Westminster-Coquitlam (Ms. Jewett) on the same point of order.

Ms. Jewett:

Ordinarily, Mr. Speaker, I would be delighted, as we all are, to have questions and comments. However, we did have an agreement today that the three of us, one from each Party, would be able to speak, even though it extends into Private Members' Hour. That was the agreement.

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I know that the Eton. Member for York Centre (Mr. Kaplan) has quite an extensive speech. Therefore, I would ask that I be allowed to speak today, as it was agreed that I would.

Mr. Deputy Speaker:

On the same point of order, the Hon. Member for Saint-Henri-Westmount.

Mr. Johnston:

I appreciated the fact that the Minister of Justice (Mr. Hnatyshyn) took less time than I thought had been allotted. I would be quite happy to limit myself to one question, because he has raised a point which I believe requires some clarification. It should not take more than three minutes, Mr. Speaker, to have that exchange.

Mr. Prud'homme:

A colleague of mine is saying let us be liberal. I will be liberal. Yesterday we agreed that there would be three consecutive speakers, and I do not see what has happened since yesterday to change what we decided. I think my position is as liberal as any one of my colleagues who thinks it may not be liberal.

Mr. Deputy Speaker:

On the same point of order, the Hon. Member for Laurier (Mr. Berger).

Mr. David Berger (Laurier):

Mr. Speaker, I wanted to say that coming from a Member who is given to praising the virtues of democracy, the comments we have just heard from the Hon. Member for Saint-Denis (Mr. Prud'homme) are something of a paradox.

Mr. Deputy Speaker:

We do have a question of privilege from the Hon. Member for Saint-Denis (Mr. Prud'homme).

Ms. Jewett:

I would rather have had one question than all of this.

Mr. Prud'homme:

I must admit, having always defended-

Ms. Jewett:

You are just cutting down my time.

Mr. Prud'homme:

I do not see why my dear friend from British Columbia is in such a hurry. You will have your time.

When we make rules, it becomes unruly to change the rule that we agreed to follow. I do not see why my colleagues suddenly believe that I am less liberal today than I was yesterday. We agreed yesterday that, in an orderly fashion, we would start by having three Members of Parliament speak in a row, one from each Party. I am sure that in due course some of my colleagues will have plenty of opportunity to put forward their views. Therefore, I think we should proceed as we agreed yesterday.

Mr. Deputy Speaker:

The Hon. Member for Davenport (Mr. Caccia) on the same point of order.

Mr. Caccia:

Mr. Speaker, that was not a point of privilege. The point here is whether or not the Chamber is afraid of allowing one question to be asked which has been defined as

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being a short one, within the time frame allocated to the Minister, without going over it, and to make this debate as engaging and interesting as the rules of the House usually provide. What is the House afraid of by allowing one question at this point?

Mr. Deputy Speaker:

The Chair does not believe that there is unanimous consent. Therefore we will proceed with the debate with the Hon. Member for York Centre (Mr. Kaplan).

Hon. Bob Kaplan (York Centre):

Mr. Speaker, of all the work we do in this House, nothing is as important as what we are about to do today, because we are now dealing with the fundamental law of this country, the Constitution of Canada.

We must do so out of a sense of pride in our country and its accomplishments, accomplishments that are quite considerable.

I think we should remember that today's Canada is not the initial version of this nation. Canada as we know it, which goes back to 1867, is actually the second or third version of this country, according to our historians. Before Confederation, an attempt was made to unite the colonies of North America, mainly so as to be strong enough to resist the influence of the Americans and keep the Americans out, and until Confederation, several attempts at union had failed.

The present version succeeded, and it has succeeded to this day, Mr. Speaker. I think it would be interesting to compare the versions that existed before Confederation with what we have now. What are the differences?

One difference I find very important and very apt is the difference in perception of the future of a great country. Before Confederation, we saw mature colonies that exercised all the powers of a colony, that wanted concessions and were anxious to have a mutual contract in order to survive against the United States. However, Canada as we know it today, the present version of Canada, had a vision of a frontier, of a great country from the Atlantic to the Pacific, a much broader perception than the original partners had.

The objective was not how to protect Canada, as a mature state, against the United States, but to build something great and important and different from the original colonies.

The Canada that we are living in now survived for a number of reasons. For me, for many Canadians, and for those whom I represent, it survived because of its grandeur, because of the larger vision that it has than any of the unsuccessful efforts before it to build a country which was nothing more than an agreement or an arrangement to share powers among existing colonies.

Many countries have the natural riches that Canada has and the human riches as well, but they are not as successful as

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Constitution Amendment, 1987

Canada. Within our borders we find immigrants who have come to our country from places in the world that have resources and human riches but which lack Canada's great heritage in our form of Government, our parliamentary tradition and in the balance that we have achieved in our Confederation. When we come as a country to analyse why we are where we are, we must remember that it is in part due to the input of the tradition of Government and the balance of our Confederation. Waves of immigrants have come to Canada from even richer places in the world and have done better here in freedom and in prosperity because of our system. This has to make us very conscious of what is before us when we examine possible changes to the fundamental law of Canada in the form of the Meech Lake Accord before us.

I want to put one other image before the House. It was an image which Prime Minister Trudeau set out close to the end of his career as Prime Minister. He spoke about building a great nation. He compared it for purposes of contrast to other buildings. He talked about the Pharaoh in Egypt who built a pyramid, about the work and the effort that went into building a pyramid and who in the end would stand back proudly looking at his project that would defy the ages. Building a nation is a very different process. We did not stop with what the Fathers of Confederation completed and let it defy the ages.

Building a nation is an ongoing process. It is a process that takes the efforts of the people of the country and their legislatures in a federal system, all of the components of our great country, to make it work. It responds to the changing circumstances and changing opportunities in a positive and in a generous way, in a way that looks to the long term, that looks to what it is we are building and respects the tradition and the heritage that has made it possible for us to enjoy the very great fortune that we do as Canadians.

I was part of the Government between 1980 and 1984 that patriated the Constitution, initiated the package, designed it, developed it, invited public participation and provincial and political support from across the country.

Canadians feel great pride in the fact that we patriated our Constitution. That patriation package was a first-class manoeuvre in the sense that it did not just patriate what we had but augmented it with the Canadian Charter of Rights and Freedoms, whose potential for enhancing social justice and fairness in our society is only now beginning to be realized. This was a very great achievement of 1981 and 1982 under the leadership of Prime Minister Trudeau. I do not think we can sit back. We have to look at what has been called the unfinished business of that package and we must continue to build.

We in the Official Opposition have viewed the Meech Lake Accord. We have been invited to support it and we have considered it. We are very critical of the process by which the Meech Lake Accord was devised. We feel, and we indicated in our reports, that much more public participation should have

taken place and much more time should have been put into it. It is not a seamless web. In fact, Mr. Speaker-

I would like to read into the record a paragraph from our report, published as Addendum A, the Liberal Party's position on the 1987 Constitutional Accord. I read at page 149, and I have only one paragraph to read: "The Liberal members of the Special Joint Committee on the 1987 Constitutional Accord, on behalf of the Opposition, once again confirm their support for the Langevin Accord ... "-in other words, Meech Lake- "... as a positive step forward in Canada's constitutional evolution. At the same time, we believe that the Accord can and should be improved now by the inclusion of some amendments, which are set out below. These amendments are fully consistent with: (1) the Liberal Party policy resolution of November 1986; (2) the Quebec Government's constitutional agenda; and (3) the testimony of many expert witnesses at the hearings of the Special Joint Committee. We also believe that these amendments should be acceptable to the First Ministers. They take nothing away from the achievement of the Accord, rather they clarify its meaning and recognize other legitimate claims which are totally compatible with the Accord."

That was the position we took when the resolution was first presented, and that is the position that we take today. We support the Meech Lake Accord in spite of an extremely flawed process. We were prepared, in other words, to look at the fruit which the process bore as an Official Opposition should do and to look at it on its merits in spite of the process that we found deplorable and of which we were very critical. We have proposed amendments. I simply cannot understand the Government, especially in the light of the current reaction across the country to the Meech Lake resolution, characterizing them as killer amendments or as amendments that will do anything other than enhance the package, increase its acceptability, as well as bring new constituencies of support to the constitutional package which the Government has brought forward.

I intend now to proceed to examine our amendments, put them forward and explain them. I hope members of the Government will once again give consideration to amendments which, although we will support the Accord in any event, I think will make the Accord a much more popular document and perhaps save it if it is threatened in a number of provinces across the country because of objections to certain aspects of it. I will refer to my amendments as I go along through substantial points about the Accord.

To begin with, we should never forget that the purpose of the Meech Lake agreement was to bring Quebec into the constitutional framework of Canada. The lengthy history of attempts at constitutional revision have always included the reluctance of Quebec's leaders to permit a reduction in both the powers of the Quebec Government and its role as the point

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d'appui for the French language in Canada, as the B and B Commission expressed it.

I have heard the arguments. There is certainly validity to those arguments that Quebecers were involved in the process of patriation of the Constitution and bringing in the Charter of Rights and Freedoms. I have seen the chart of how many elected legislators from the federal and provincial levels together supported patriation and how many opposed it. I know about the resolutions in the Province of Quebec, but I do not think that the non-participation of the Quebec Government in patriation, its disapproval of it, should be demeaned or that it should be belittled. It is significant because, in an ironic way, that very fact of the Government of Quebec's non-approval gives Quebec a special status. It becomes the only province that has not accepted at the level of the provincial legislature and government the patriation of the Constitution.

That is an argument which gives comfort and support to grievances within the Province of Quebec against Confederation. It is legitimate and important, in this process of the ongoing building of our nation, to deal with that, to find a formula or an accommodation that will overcome that. We know from the referendum and from the recent election of a federalist government in the Province of Quebec that Quebecers want to participate in Confederation. This is perfectly legitimate and appropriate, and behind our approval of the Meech Lake Accord is our recognition of the importance of overcoming the fact that back at the time of the patriation of the Constitution and the establishment of the Charter of Rights and Freedoms, the Government and legislature of the Province of Quebec said no.

I have heard some people glibly say that because of the referendum, because of the election of a federalist government in the Province of Quebec and because Quebec has said yes to us now, we in the provinces and in the Parliament must now say yes to Quebec, as if to imply by that that no matter what the priorities of the Province of Quebec are at this time, because it had gone through the two stages, we should say yes no matter what. The approval of the Official Opposition is not to be taken as an indication that we would accept any kind of conditions put forward for the approval of the Meech Lake Accord and for the support of the Government and Legislature of Quebec for the package. Certainly, we would not be able to say yes to Quebec if Quebec were putting forward an agenda which would undermine or destroy the kind of balanced federalism that we know.

I think it is important at this time to review for a moment what some of the past demands of Quebec were as a condition for its approval of the patriation of the Constitution. It is important to do this because I want to demonstrate that it was not the conflict and confrontation, as some Members of the Government Party have said, of the former Trudeau Government that was responsible for Quebec's non support of the

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patriation package, it was not that at all. It was what was on the agenda of the Government of Quebec at that time.

People have forgotten that what was being asked for could not be agreed to. Quebec was represented by the Levesque Government, whose agenda was not to build a strong and united Canada. Its overt, openly stated agenda was to separate and establish a country independent from Canada. Its agenda demonstrated that.

For example, one of the things that was wanted in the Constitution of Canada was the right of self-determination for the Province of Quebec. I do not see how that could be put into a Constitution of a federal state. That could not have been accepted. It was not a matter of confrontation or conflict, it was an unacceptable agenda.

The province wanted to close down the CBC stations and Radio Canada stations across Quebec and turn them over to provincial management. It wanted to withdraw television, cable and radio licences and have them issued by the provincial government. It wanted to be the voice outside Canada of la francophonie, not just inside Quebec but outside Quebec and across the rest of the country. Looking back at what it was that the Government of 1980, 1981 and 1982 was being asked to approve, one can see why the Constitution was patriated without the approval of the Government of the day in the Province of Quebec or of the Legislature of Quebec.

I mention those sad events because I want to contrast them with what we are being asked to say yes to now. We are being asked by the federalist government of the Province of Quebec, and I now refer to the commencement of the process which lead to Meech Lake, to say yes to a five point agenda of items which, in the view of the Official Opposition, are totally compatible with a federal system of government, with a Confederation as we know it, with a balanced equilibrium in Canada. We think that this is a timely development. It is not something that we can count on being available now and for all times in the future. It is something that we have to recognize while it is available. Quebec's approval is available on the basis of a federalist agenda.

I must also say that I do not see how one could have expected the Premier of Quebec, Premier Bourassa, to win his election and then turn to the federal and provincial Governments and say: "I am prepared to accept the package the former Government refused. It was not good enough for the former Government, but it is good enough for me". Politically, that would have been unrealistic, and it is reasonable for us to expect and to receive from the Province of Quebec a list of items which will assist it in being comfortable within Confederation, in a balanced form of Confederation which we have inherited and which it is our duty to preserve and strengthen.

I have indicated our support for the Meech Lake Accord, but I have also indicated that we have argued that amendment is possible. We have a number of amendments which are desirable and important.

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Constitution Amendment, 1987

I want to note in relation to the package of Quebec's priorities for entry into Confederation and for approval of the patriation of the Constitution and of the Charter of Rights and Freedoms, there was no proposal to reduce the powers of the federal Government in its most important areas. I will talk about the changes in the system individually, but it is important to underline that what has not changed is that the federal Government retains all of its powers under Section 91, including its general power. It retains its powers of taxation and it retains the important responsibilities relating to peace, order and good government.

Let me turn now to one of the criticisms that has been made of the Meech Lake Accord. In spite of having sat on the Committee, listened to the witnesses and asked them questions, it is a criticism of the Meech Lake Accord that I am totally unable to understand.

[ Translation]

And that, Mr. Speaker, is the suggestion or the objection that the Meech Lake Accord detracts from the official languages policy. For me, far from harming this policy, the Meech Lake Accord tends to strengthen it. Let me explain. First, we in Canada have a policy of official institutional bilingualism. That remains unchanged with the Meech Lake Accord. For example, this means that we try as much as possible-it is the Government's responsibility-to ensure to the greatest extent that those who want to live in French and those who want to live in English in our country can do so.

The Government must provide them with services in French and in English, as they choose, wherever practically possible. And the official languages policy is not to force them to learn another language to live in Canada. They have the right, as much as possible, to live in only one of the two official languages.

But another aspect of the official languages policy that is not legislated appears before us. It is phenomenal, wonderful, something that is really an aspect of this official languages policy; it is the growing practice throughout the country of learning both official languages. We see in every province the trend of Canadians who can live and work in only one of the two official languages to learn the other language, to teach it to their children and to have their children taught the other official language. Perhaps it is because in our country, we have two of the most important languages in the world; perhaps it is also the example of Canadians who are bilingual that impresses other Canadians. Perhaps too it is to have the opportunity to live fully as a Canadian. But it is very important and continues to be with the Meech Lake Accord. There is nothing in it to discourage these Canadians, be they adults or young people, who are trying to become bilingual in this country.

In my argument about the continuation and strengthening of the official languages policy I note that the Constitution after Meech Lake will still contain the option for provinces to become officially bilingual. I want to remind my colleagues that in our resolutions as a Party and in our report on the Meech Lake Accord we urged that provinces become officially bilingual. We refer specifically to the Province of Ontario. We would like to have seen at the Meech Lake Accord negotiations a Prime Minister who moved forward with that priority and tried to take the opportunity to encourage a province or more provinces to become officially bilingual. Flowever, the option is still there and I commend our amendment to the House, encouraging the Province of Ontario and other provinces to become officially bilingual.

After the Meech Lake Accord is constitutionalized, there will still be an obligation on provincial Governments to provide education in an official language where numbers warrant. That is not taken away by Meech Lake. Official languages remains as strong. In fact, I want to refer to another of our amendments, an important one, in which we wanted to remove the "where numbers warrant" limitation contained in the Constitution at the time of patriation. We felt that the standard contained in paragraph 1 of the Canadian Charter of Rights and Freedoms about reasonable limitations on all rights, including language rights, would have been sufficient protection against abuse, if one can conceive of abuse as being a desire to have your children educated in one of the official languages. We commend that amendment to this House and to others across the country who are considering the resolution on the Meech Lake Accord. We think it is important, and the amendment would reinforce official bilingualism in the country, but nothing in the Meech Lake Accord in that respect reduces it.

Dealing with the Official Languages Act, which is the final aspect of official bilingualism that I want to refer to under the Meech Lake Accord, I note that the Act remains the law of the land. I did not want to speak today about the current problems that the Government is having in implementing its amendments to the Act contained in Bill C-72, but the disgraceful developments in Question Period today are pretty hard not to refer to in this context.

Here we have a Constitution which encourages official bilingualism, the Meech Lake Accord which in my submission does the same thing, Official Languages Act amendments which ought to be brought forward, a Government which indicated it was prepared to do so, but a resistance movement among some dinosaurs, as they have been called, in the Conservative caucus who do not want this element of progress. It may be that Conservative Members who want the amendment package which my colleague revealed today feel threatened by a country which has an official bilingualism policy.

Mr. Belsher:

We are not threatened at all.

May 19, 1988

Mr. Kaplan:

On our side of the House we do not feel that. We feel enriched by official bilingualism and we encourage the Government to stick to the position it put forward to the Canadian people on this subject and let us have these important amendments to the Act.

Further on the subject of the official bilingualism policy, I want to turn finally to the actual provisions of the Meech Lake Accord which calls on the Parliament of Canada and the provinces to preserve the situation of the official language minority in their province. I feel that is a step forward. Yet when one looks at the development in the Province of Saskatchewan one has to wonder how that province, which signed the Meech Lake Accord and passed the resolution, could bring forward legislation which is a step backward in the acquired rights of the official language minority residing in that province.

I speak of the Fransaskois who had rights granted in the statute that established the Government of Saskatchewan. And now, after the Supreme Court strengthened and confirmed these rights and pointed out that they were in effect, the Government, the same one that passed the Meech Lake Accord, could also diminish their acquired rights in the Province of Saskatchewan.

I want to suggest on that subject that if the Meech Lake Accord had been constitutionalized at this point, I think-

... I believe that the Fransaskois would have one more argument in their favour, in favour of their official language in their province and an argument that did not exist in the Constitution before Meech Lake. It is a gain. Even so, the attitude of the Government and of the Prime Minister (Mr. Mulroney) in his response to events in Saskatchewan is simply deplorable.

We have proposed an amendment to this provision of the Meech Lake Accord. I think if the Accord was a short step in reinforcing the situation of the official language minorities in the provinces, the amendment we proposed is a much longer step. I would like to read our amendment. We would put forward for Clause 2(a) of the Meech Lake Accord the following:

"2(a) The role of the Parliament of Canada to preserve and promote, and the role of the provincial legislatures to preserve and, subject to subparagraph 2(b) to promote, the fundamental characteristic of Canada referred to in paragraph (l)(a) is affirmed.

(b) The role of a province in relation to promotion applies from the time it is adopted by a resolution of the legislative assembly of that province."

Why is that a killer amendment, I ask the Leader of the Government in the other place, the Minister responsible for interprovincial relations? We ask that this Parliament and the

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Government of Canada not only preserve the rights of official language minorities but promote them as well.

We ask in relation to the provinces that they promote as well as preserve, but only from the time they specifically agree to do so. We are thinking of the model of the official bilingualism of a province. According to the Constitution of 1982, a province has the right to opt into official language status. We offer the right to opt in as well to the responsibility to promote in addition to preserve the official language minority's acquired rights and other rights within a province. I do not consider that to be a killer amendment.

If one looks at the list of priorities of the Province of Quebec, that is not part of them. Quebec's priority list deals with matters affecting the Province of Quebec. This amendment deals with the situation of official languages outside the Province of Quebec, as well as inside the province with respect to the English official language minority. Surely this amendment can be totally acceptable and one which would have brought the unhesitating support of-

-of the FFHQ throughout our country. It was an amendment that could have greatly increased support for the Meech Lake Accord.

One of the points made in criticizing the Meech Lake Accord in the manner in which it affects official bilingualism in Canada is the distinct society clause. We in the Official Opposition do not agree with the argument that the distinct society clause prejudices bilingualism. Certainly no one can point to any words or clauses in the Meech Lake Accord which diminish official bilingualism. The critics of the distinct society clause acknowledge that there is nothing specific about it that violates bilingualism, but they try to make the argument that indirectly, recognizing Quebec as a distinct society will have that effect.

Let me make a few points about the distinct society. First, there is no question that Quebec is a distinct society within Canada in a very special way. From the moment in 1774 that the Quebec Act recognized the authority of the civil law and the rights of the Catholics to hold public office, Catholics meaning French Canadians in those days, there has been a consistent acceptance of a distinct constitutional recognition of Quebec's special place in the Canadian Federation. That does not preclude a rejection of the distinct constitutional provisions which recognize the anglophone or non francophone minorities in Quebec, or the francophone minority outside its borders.

The drafting of the BNA Act provided for a specific division of powers in those domains which were considered important to the maintenance of Quebec's distinctiveness, education, courts and civil law. There are other distinctive aspects about Canada than the distinctiveness of Quebec, however. I want to refer the House to amendments which are included in our

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package, which recognize other fundamental characteristics of Canada, which recognize the aboriginal people as a fundamental characteristic of Canada and recognize the multicultural developments in Canada, with millions and millions whose heritage is in the culture which is neither English nor French.

The reaction of the public across Canada to the Meech Lake Accord certainly shows that recognition of other fundamental characteristics of Canada would certainly have enhanced public support for the Meech Lake Accord. In our submission, it is not too late for the addition of those two among the fundamental characteristics of Canada.

When considering another criticism of the distinct society clause, it is important to remember that the distinct society is not a francophone society alone. Many critics feel and fear that the power given to the Government of Quebec and the Legislature of Quebec to promote the distinct society means that a francophone society only will be promoted. That overlooks precisely what is contained in the Meech Lake Accord itself. It is important to read Clause 2 which states:

The Constitution of Canada shall be interpreted in a manner consistent with

(a) the recognition that the existence of French-speaking Canadians, centred in Quebec but also present elsewhere in Canada, and Englishspeaking Canadians, concentrated outside Quebec but also present in Quebec, constitutes a fundamental characteristic of Canada;

Those who would argue that the distinct society clause could be used as a device to downgrade or humiliate the Englishspeaking minority within the Province of Quebec are not giving adequate account of the actual language of the Meech Lake Accord and to the fact that such action would not be justified under the very clear language which indicates that Quebec is a bilingual society which includes francophones and anglophones.

It is clear that the distinct society clause is an interpretive provision. In relationship to the Charter of Rights and Freedoms, it is not a provision which cancels or diminishes other provisions of the Constitution or of the Charter of Rights and Freedoms. It is meant to be read to interpret them.

There is another criticism of the distinct society clause that I believe is invalid when one considers it carefully. The distinct society clause cannot be used as an interpretive provision to reduce the powers of the federal Government, of Parliament or of the provinces. Clause 2(4) states:

Nothing in this section derogates from the powers, rights or privileges of Parliament or the Government of Canada, or of the legislatures or governments of the provinces, including any powers, rights or privileges relating to language.

While a proponent of a law before the court may argue that the distinct society clause justified trenching on powers of the federal Government or a provincial government, it is clear that this amendment provides that it is not to be interpreted to do so. However, when one comes to the relationship between the distinct society clause and the Charter of Rights and Freedoms, I do not believe the matter is as clear as the Minister of Justice (Mr. Hnatyshyn) indicated in his remarks. He said he

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rejected totally the argument that the distinct society clause could reduce provisions of the rights and freedoms granted under the Charter.

Let me give a hypothetical situation that I believe indicates the concerns of the Official Opposition in the amendment to which I will refer. Suppose that five provinces, including Quebec, put forward the same law which is considered by some to reduce the rights of women. I can visualize a situation under the Meech Lake Accord in its present form where Quebec will have an extra argument going into the Supreme Court of Canada to defend that law. The law, in other words, might be found not to violate the Constitution or, putting it the other way, the law might be found to violate the Charter of Rights and Freedoms in four provinces, but not within the Province of Quebec, because a different interpretative provision is being used. As I indicated, I do not think, and I was convinced by the evidence adduced before our committee, that rights can be removed by the distinct society clause or that they can be reduced, but they can be given a different interpretation.

We are arguing that it is undesirable for the Charter of Rights and Freedoms to have different meanings for Canadians in different provinces of Canada. That is the reason for our amendment which I would like to refer to now and commend to Members of the House, even the Minister of Justice who has rejected all evidence to the contrary, that we should make it clear that the Charter has the same meaning in every one of the provinces of Canada, and for all Canadians, wherever they live.

We are concerned that this very important achievement of 1982, the Charter of Rights and Freedoms, should not have different meanings in different places across the country, so we have put forward this amendment. However, if you ask if that possibility and concern is fatal with respect to the Meech Lake Accord, if you ask if that is an argument for us to reject the entire Accord with all of its other achievements, my answer is to reflect back on what we did in 1981 and 1982 when we brought back a Charter of Rights and Freedoms which contained Section 33. It contained a clause which permits a province to reject all parts, those that are listed in the Charter of Rights and Freedoms and in Section 33, in other words, to deny very specific provisions of the Charter of Rights and Freedoms, and to deny them 100 per cent to the residents of a particular province.

That is a very serious derogation from the Charter. Yet we were obliged to accept it because we would not have been able to patriate the Constitution and we would not have been able to establish the Charter of Rights and Freedoms without it. We tried to do it, but we could not get enough support to be able to proceed and patriate the Constitution and establish the Charter without it.

I look at the wisdom we had then to accept the derogation, the notwithstanding clause, and the situation now where there

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is ambiguity about the interpretation of the distinct society clause in relation to the Charter, and we have an amendment which is being rejected by the Government. If it is rejected, let us proceed, let us put the clarification of the priority of the Charter, along with the notwithstanding clause, as something we would like to see dealt with early, and which our Leader has undertaken will be part of our platform and agenda of the Liberal Government after the Meech Lake Accord is constitutionalized.

Another suggestion in relation to the distinct society clause with which I would like to deal is the suggestion of some that it should be referred to the Supreme Court of Canada so that it can tell us exactly what the distinct society clause means. In rejecting this suggestion, I think I can do no better than refer to the arguments made by the Attorney General of Ontario before the legislative committee in that province which was examining the Meech Lake Accord.

It is true that the Supreme Court of Canada Act says that virtually any question can be referred to the Supreme Court of Canada, but references cannot be successful when they ask the Supreme Court of Canada to write a book or treatise in effect, about the meaning of a clause. The Supreme Court of Canada can handle, and it is reasonable to put to it, justifiable questions such as, is this legal? Does this comply with the provisions of the Charter? Does this comply with the amending formula?

It is a long, interesting and powerful argument the Attorney General of Ontario made. It cites authorities and comes to the conclusion that when we ask the court what does the distinct society clause really mean-and I am reading here from page 45 of his brief-it is unlikely that the court would be willing to answer any such question.

Courts exist for the purpose of resolving particular disputes rather than writing discursive essays on the meaning of various constitutional provisions. He contrasts that question with the question that was asked of the Supreme Court of Canada back in 1981. The court was asked whether or not the proposed amendment was unconstitutional, a very specific thing. It was asked is it constitutional or is it not, yes or no. It was not asked the difficult question of what it means. Imagine what would have happened if peace, order and good government had been sent to the Supreme Court of Canada in its day, if it had existed then? It is not the type of question about which a court can be asked to give a useful definition. It is too hypothetical to expect a court to be able to deal with it in a way that is really useful.

The final criticism that is made of the distinct society clause is also made of another provision of the Meech Lake Accord, that is that it is too vague and ambiguous. I want to deal with the question of vague and ambiguous, bearing in mind that peace, order and good Government must also be considered pretty vague and ambiguous. Yet it has been pretty useful and has been the basis for founding a considerable number of important decisions, and I want to indicate in connection with

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the shared costs program provision as well, that I do not think its vagueness or ambiguity is necessarily a fault.

The provision that is also criticized as being too vague to proceed is the provision on shared costs programs which puts a limit on the power of the federal Government to establish shared costs programs with provinces which do not want to participate. Again, I think, many of the critics of the Meech Lake Accord have exaggerated very considerably what it is this provision does. Certainly, it does not take away the spending power of the federal Government. The federal Government still has the power to spend money. In fact, the power is specified in the statute, or what will be in the Constitution, in a way of clarity which it has never had before. But the provision itself on the spending power does not eliminate the federal Government's power to spend money in areas of exclusive provincial jurisdiction.

It is important to recognize also that the limitation contained in the Meech Lake Accord only applies when we talk about an exclusive area of provincial jurisdiction. I think in a balanced federal system, it is not unreasonable for the provinces, when the federal Government proposes to spend money in an exclusive jurisdiction which belongs under the Constitution to them, to ask them to contribute half or more, perhaps less, but a part of the cost. It is not unreasonable to give the provinces more powers than they have enjoyed until now. This, the Meech Lake Accord does.

People fear that with the power the provinces are given to demand compensation, and if they provide a compatible program or policy, this will create a chequer-board Canada. I want to insist that this provision does not necessarily create a chequer-board Canada. It depends on politics. It depends on the kind of negotiation process that takes place. There will have to be more negotiation if the Government wants to proceed by this route. There will have to be more consideration of provincial priorities. But at the end of it, if the federal Government does not want particular provinces to establish programs of their own and claim compensation, it does not have to proceed through the route of a shared-cost program in an area of exclusive provincial jurisdiction.

I think it is a false criticism to say that this clause will lead to a chequer-board Canada. The federal Government can insist before signing on the dotted line that other provinces participate rather than opting out and claiming compensation instead.

I refer to the ambiguity of the shared-cost program clause. I would like to read it. I would like to read Section 106(A) of the Meech Lake Accord which states:

The Government of Canada shall provide reasonable compensation to the Government of a province that chooses not to participate in a national shared-cost program that is established by the Government of Canada after the coming into force of this section, in an area of exclusive provincial jurisdiction, if the province carries on a program or initiative that is compatible with national objectives.

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Constitution Amendment, 1987

"Compatible with national objectives" and "program or initiative" have been criticized as being pretty ambiguous language. We in the Official Opposition agree that this is ambiguous language. I want to note an amendment that we have proposed which would make that language somewhat clearer. What we have proposed in our amendment is that what needs to be provided by the province to qualify for compensation is to carry on a compatible program which meets minimum national standards. The language that we have proposed I think is more clear. However, I have to acknowledge that even it is somewhat ambiguous and that there will always be some uncertainty in marginal cases where some type of arbitration is going to be required by a court to determine what it means.

Let me give a practical example. We have before the House now Bill C-89 which, as one of its objectives, provides federal funds for victims of crime. Money is given to the provinces. The wish is expressed in the legislation that they will use it for victims of crime.

Let us say that a shared-cost program is developed in that area and the federal Government offers the provinces the opportunity to participate in this. It is obviously an area of provincial jurisdiction. I do not think there is any doubt about that. Thus we have a province saying: "We will take the money. We intend to build sidewalks with it". How do sidewalks help the victims of crime? I suppose a provincial Government can argue that if there are sidewalks, people who walk on them are less likely to be hit by drunk drivers. That is one argument. A province might say: "We will take the money and we will establish that type of program". Under either version the question that would be asked is: Is this a compatible program which meets minimum national standards? I could not predict with confidence what a court would determine if that example were put as a basis for a demand for compensation by a provincial government opting out of a shared-cost program initiated by the federal Government.

I would like to observe this. Among the provinces I have noted arguments being made that this clause in the Meech Lake Accord has a different meaning. In the Province of Quebec a Minister is arguing that it gives very great latitude to the province. In another province, the Province of Ontario, the premier is arguing that that is a pretty tight definition. How do we deal with an ambiguity like that?

I would like to make a couple of observations about it. I remember chatting with one of the drafters of the International Monetary Fund Agreement. He made the observation that one of the achievements and the glories of that agreement was that it contained no unintentional ambiguities. What he meant by that was that the parties went as far as they could in agreeing but that there were certain things that they just could not agree on.

This could be contrasted with a contract in which people hire lawyers to iron out all the ambiguities. One certainly would not want to be told about a contract by one's lawyer

that it is being left ambiguous because "we want to be able to sign the deal with the other side". In the case of a contract one wants to know clearly what will happen in every eventuality. However, the founders of the IMF, when they were getting together, reached a point where they could see, I assume, that unless there was a little measure of ambiguity there would not be a deal. I have the same feeling, although I was not at the table at the Meech Lake Accord, about the ambiguity, marginal, of the distinct society clause, and about the ambiguity of the shared-cost program provision.

We had premiers and a Prime Minister (Mr. Mulroney) who were saying to each other: "We have been able to agree about a number of things. We cannot agree in very precise detail about this. We are prepared to sign the agreement knowing that if this falls to be interpreted it will be interpreted within the context in which one side can make its arguments, the other side can make its arguments, and like peace, order and good government a decision will be made about where the responsibility falls and whether the compensation payment has to be made".

It is not a hot criticism of a constitution to say that it contains some vague language or some ambiguities. In that context, in fact, what started me thinking about this was a fascinating article about the Magna Carta which appeared in the Law Society Gazette of Upper Canada written by James Allan in June of 1987. He analyses a remarkable document which is about 700 years old. In particular he refers to the trial by jury safeguard contained in the Magna Carta.

The amazing thing is that when the Magna Carta was drafted, when King John and the barons sat together and hammered it out, trial by jury for ordinary citizens of the realm was the farthest thing from their minds. That Magna Carta today stands for trial by jury. In the British system there are still portions of the Magna Carta that are the actual current law of the land with respect to trial by jury.

In his concluding observations about the Magna Carta Mr. Allan notes that perhaps the greatest criterion of the longevity of any set of rules or laws is its adaptability. He states that the Magna Carta has lasted so long because of its tendency toward vagueness. "The passing ages were able to put their own gloss on the text".

I look at the shared-cost provision. I note that the federal spending power is still available to the federal Government, that virtually any objective, if the provinces object, could be achieved through other uses and through other exercises of the spending power.

It is not so bad to accept one or two ambiguities, although our amendment would have the effect of making it somewhat clearer and, I submit, would still hold the support of all the partners who initially drafted and approved the Meech Lake Accord. Future interpretation will decide and will settle. The parties who signed the Meech Lake Accord in this form were

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willing to have the provision settled by the courts in due course.

Again, the critics of the Meech Lake Accord turn to the next provision that they condemn and state that they would be prepared to have the courts settle it, but under the Meech Lake Accord the Supreme Court of Canada will become a stacked deck. I wish to deal with that objection, because I do not think it is valid. We in the Official Opposition reject that particular criticism of the Meech Lake Accord. What is said is that, because the provinces have the right now to submit names to the federal Government from which judges can be appointed to the Supreme Court of Canada, that provincialists or separatists might be appointed whose perspective on the issues that come before it would be biased.

In noting that criticism, one has to ask how satisfactory is the present system. Certainly it has worked well. I have never heard criticism from any quarter of the Supreme Court of Canada being prejudiced or anything other than objective and excellent in its function and in its standards. The Members of the Supreme Court of Canada are appointed by the Prime Minister. He designates them. Under the present system the tradition is that they are confirmed and adopted. There is not even any reference to the parliamentary committees in the manner that certain other appointments are referred to committees, without the power to veto, but at least with the power to examine them.

If we ever had a Prime Minister like Ronald Reagan, who had an agenda of making the Supreme Court of his country politically coloured one way or another, in Canada that would be very easy to achieve in the manner the Supreme Court of Canada presently is. I remember thinking, and my colleague, the Hon. Member for Davenport (Mr. Caccia) may also remember, that when the patriation package brought forward by the Trudeau Government was under attack, and when the Quebec Government was taking it to court, that if the Quebec Government was unsuccessful at the Supreme Court of Canada, it could make the argument that this is a court that is set up to adjudicate between the claims of the federal and the provincial Governments, but it is 100 per cent appointed by one side, therefore, what type of legitimacy is that?

When one looks at the way the Supreme Court is presently constituted, it is appropriate to consider a change which will produce a balance; a Supreme Court of Canada which is bullet-proof in the sense that neither level of government can take shots at it and say that this is a court whose method of appointment disqualifies it from adjudicating our claims.

When one looks at what the Meech Lake First Ministers have put before us, it seems that it produces a better balance than the present system. There are criticisms made that go too far. For example, if provincialists or mandatees who are going to take orders from provincial capitals are put forward on the lists of one particular province, the federal Government has the choice of going to another province, or if one province does not want to put any names forward, it has a choice of going to

Constitution Amendment, 1987

another province. Outside of Quebec there is a tradition that there are three from Ontario, two from the West, and one from Atlantic Canada. But that is not an invariable tradition. If one region or one province wanted to defeat the composition of the Supreme Court of Canada by not giving names, or giving unacceptable names, the federal Government would have a neat way of dealing with it which would permit the Supreme Court of Canada to continue to function.

In the case of Quebec it is somewhat more difficult because it has the right to three places on the Supreme Court of Canada. If the Government of Quebec wanted to embarrass the federal Government by not putting names forward, or by putting forward unacceptable names, there would be a problem in filling the Supreme Court of Canada with representation from Quebec, and politics could be played with that. But politics could be played both ways with that. There would be pressure from both sides to do the responsible thing, and put forward acceptable names, and to appoint them.

To make a point, I was checking the ages of the present Quebec Justices on the Supreme Court of Canada. Their ages are 54, 63, and 60. The age of retirement is 75. The youngest judge has 21 more years to serve. If there was a government in the Province of Quebec determined to subvert federalism, it could take 21 years to achieve that purpose. If there was a government of that character in the Province of Quebec, it would be a lot sooner than 21 years that the future of our country would be in difficulty. It would not be because of the Meech Lake Accord formula, but because of the fact that a government not supporting federalism was in office for that long period of time in the Province of Quebec.

We proposed an amendment on the Supreme Court of Canada which is helpful. It is the provision on breaking the deadlock. We propose a deadlock-breaking mechanism. It would be helpful to have such a mechanism. I urge members of the Government to consider it. We have provided that if a deadlock does arise, the Chief Justice of the Court can fill the vacancy but only for one year. Therefore, there would be continuing political pressure on the Governments concerned to take their responsibilities and provide for the vacancy to be filled.

With the Meech Lake Accord, one has a solution to the composition of the Supreme Court of Canada which makes it more legitimate as an arbiter of the interests of the two levels of government that so often appear before it to have their disputes resolved.

The next provision of the Meech Lake Accord that we support, but for which we propose an amendment, is the provision for the Senate. The critics of the Meech Lake Accord are fearful of a concern that deserves to be stated. That is, what could happen with the provinces proposing lists and the federal Government obliged to take candidates from that list of that province only? Over time the Senate could become a Trojan horse brought into the federal level of government. It could be filled with delegates of provincial

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Constitution Amendment, 1987

legislators who, if they had to make decisions, would phone their head office in the province from which they came to take orders on how to vote, not on provincial matters, not on federal-provincial matters, but on matters that are exclusively within federal jurisdiction, that is, the business of the Parliament of Canada.

In examining that criticism, I have to admit that that could happen over a very long period of time. The thing to remember is that the Meech Lake Accord amendment on this subject is meant to be a temporary provision. It is meant to put pressure on the federal Government and on the provinces to reform the Senate to deal with the legitimate grievance of the regions of the country where the federal Government and the Parliament of Canada does not recognize their concerns. It is meant, in other words, to make the Senate fulfil more of the original aspirations for it, so that it truly reflects the various regions, minorities and other non-majoritarian interests of Canada.

Will this temporary measure be a temporary measure? I think the signs that it will be are good. First, the possibility of the Senate being reformed without some radical type of surgery like the one proposed in Meech Lake is very unlikely. We have had 110 years to reform it. The difficulty in examining reforms are that there are so many options that it is difficult to get a consensus to any one of them. That has been one of the main difficulties. Another has been that the Senate is a very attractive patronage place for the government of the day.

When it comes to changing the Senate, it has been very difficult. Governments have been under understandable political pressure to leave it the way it is and to use it in a way that it has traditionally been used. At least the Meech Lake Accords stops that incentive against Senate reform. It removes any ulterior motive that the federal Government might have not to reform the Senate. On the provincial side, some argue that it gives the provinces a particular incentive to keep things in a temporary situation so that they can continue to nominate their own candidates. That is not a guaranteed benefit to the provincial governments. After all the federal Government is not obliged to appoint anyone to the Senate. It is not like the Supreme Court of Canada where there is strong pressure that it be kept to its full strength at all times. That is not the situation with the Senate.

I want to note a very positive development on which I would like to see building take place on the Meech Lake Accord, namely the statement by Premier Peterson of Ontario. To help speed the process of consideration of reform, the Government of Ontario will not submit names to the federal Government. I would like to see other provinces say the same thing. Even more so, I would like to see the federal Government say for its part in order to assure that reform really does take place that no new Senators will be appointed for a certain lengthy period of time as a way to ensure that real effort be made to reform the Senate.

In our amendment, and I want to draw the attention of the House and of the country to it, instead of referring to a list from the provinces for this temporary situation, we are proposing that Senators be chosen by election in the provinces to fill the vacancies. This is meant as a temporary measure, but it moves toward an elected Senate. We hope that if done it will remove any argument that the provinces have some ulterior benefit in being able to name candidates that might encourage them to keep the Senate in its temporary state which Meech Lake will create rather than get down to business and really work to reforming the Senate.

I want to commend that amendment to the Government. I do not see how it can call it or any of our other amendments killer amendments. I hope it will be considered as a way of enhancing support for the Meech Lake Accord.

I want to turn next to the veto power which is of such concern to so many people, namely the unanimous amending formula referred to in connection with the Meech Lake Accord. Again, like so many other parts of the Meech Lake Accord, there are a lot of misconceptions. First, we already have certain provisions in the Constitution of Canada to which amendment requires unanimous consent. It is not a long list, but there are some.

Second, we are not in the Meech Lake Accord extending the requirement for unanimous consent to the entire range of changes to the Constitution. Most of the features of our Constitution that you would want to change or might want to change do not come under the unanimity list to which the Meech Lake Accord adds. For example, the distribution of powers is something that will still be done under the seven provinces containing 50 per cent of the Canadian population rule. Then we have the fundamental characteristics of Canada, those additions to the list that I indicated earlier that we in the Official Opposition would like to make fundamental characteristics, the aboriginal issue and the multicultural fact. In fact, the distinct society clause can be changed without unanimous consent. It is another one of the provisions that is there under the seven provinces containing 50 per cent of the population of Canada rule. Many concerns that exist are exaggerated because of the sense that the amending formula will require unanimity far more broadly than really is required.

Another strange belief that, of course, is not justified about the Meech Lake Accord is that the unanimity rule is now required for the federal Government to exercise its own powers. The unanimity rule does not apply to laws introduced by Canada or laws introduced by any province. It only applies to changes to the Constitution. Our view in the Official Opposition is that the amending formula, the requirement of unanimity, is extended too far, that Senate reform would be more likely under the seven provinces containing 50 per cent rule and that the provision relating to entry of new provinces into Confederation should not be put under the unanimity rule.

My colleague, the Hon. Member for Cochrane-Superior (Mr. Penner), has made the case for us that provinces in the

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future should be able to enter in the way they have in the past. That is one of our amendments as well. The most serious criticism made of the unanimity rule and one that I think is unjustified is that it ends the sense of national purpose in Canada. I think people argue that if you need unanimous consent then there is no national purpose that is larger than the constituents whose consent is required. The clear answer to that is that the unanimity rule does not extend very much further under the Meech Lake Accord than it did before. In our view it should be narrower, but there is still a tremendous amount of constitutionalizing that will be done on a tighter approval basis than total unanimity. I understand you are seeking the floor, Mr. Speaker.

Mr. Deputy Speaker:

I thank the Hon. Member for York Centre (Mr. Kaplan) for giving me this opportunity.