ISSN 0542-5492 Second Session - Thirty-Second Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE on PRIVILEGES and ELECTIONS 31-32 Elizabeth 11 Chairman Mr. A. Anstett Constituency of Springfield VOL. XXXI No. 7 - 10:00 a.m., TUESDAY, 6 SEPTEMBER, 1983. Printed by the Office of the Queens Printer. Prownce ot Manitoba

MANITO BA LEGISLATIVE ASSEMBLY Thirty-Second Legislature Members, Constituencies and Political Affiliation Name Constituency Party ADAM, Hon. A.R. (Pete) Ste. Rose NDP ANSTETT, Andy Spri ngfield NDP ASHTON, Steve Thomoson NDP BANMAN, Robert (Bob) La Verendrye PC BLAKE, David R. (Dave) Minnedosa PC BROWN, Arnold Rhineland PC BUCKLASCHUK, Hon. John M. Gimli NDP CARROLL, Q.C., Henry N. Brandon West IND CORRIN, Brian Ell ice NDP COWAN, Hon. Jay Churchill NDP DESJARDINS, Hon. Laurent St. Boniface NDP DODICK, Doreen Riel NDP DOERN, Russell Elm wood NDP DOLIN, Hon. Mary Beth Kildonan NDP DOWNEY, James E.

Arthur PC DRIEDGER, Albert Emerson PC ENNS, Harry Lakeside PC EVANS, Hon. Leonard S. Brandon East NDP EY LER, Phil River East NDP FILMON, Gary Tuxedo PC FOX, Peter Concordia NDP GOURLAY, D.M. (Doug) Swan River PC GRAHAM, Harry Virden PC HAMMOND, Gerrie Kirkfield Park PC HARAPIAK, Harry M. The Pas NDP HARPER, Elijah Rupertsland NDP HEMPHILL, Hon. Maureen Logan NDP HYDE, Lloyd Portage la Prairie PC JOHNSTON, J. Frank Sturgeon Creek PC KOSTYRA, Hon. Eugene Seven Oaks NDP KOVNATS, Abe Niakwa PC LECUYER, Gerard Radisson NDP LYON, Q.C., Hon. Sterling Char leswood PC MACKLING, Q.C., Hon. AI St.

James NDP MALINOWSKI, Donald M. St. Johns NDP • MANNESS, Clayton Morris PC McKENZIE, J. Wally Roblin -Russell PC I MERCIER, Q.C., G.W.J. (Gerry) St. Norbert PC NORDMAN, Rurik (Ric) Assiniboia PC OLESON, Charlotte Gladstone PC ORCHARD, Donald Pembina PC I PAWLEY, Q.C., Hon. Howard R. Selkirk NDP PARASIUK, Hon. Wilson Transcona NDP PENNER, Q.C., Hon. Roland Fort Rouge NDP PHILLIPS, Myrna A. Wolseley NDP PLOHMAN, Hon. John Dauphin NDP RANSOM, A. Brian Turtle Mountain PC SANTOS, Conrad Burrows NDP SCHROEDER, Hon. Vie Rossmere NDP SCOTT, Don lnkster NDP SHERMAN, L.R. (Bud) Fort Garry PC SMITH, Hon.

Muriel Osborne NDP STEEN, Warren River Heights PC STORIE, Hon. Jerry T. Flin Flon NDP URUSKI, Hon. Bill lnterlake NDP USKIW, Hon. Samuel Lac du Bonnet NDP WALDING, Hon. D. James St. Vital NDP

LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON PRIVILEGES AND ELECTIONS Tuesday, 6 September, 1983 TIME- 10:00 LOCATION - Winnipeg CHAIRMAN - Mr. Andy Anstett (Springfield) ATTENDANCE - QUORUM - 6 Members of the Committee present: Hon. Messrs. Penner, Parasiuk and Storie Messrs. Anstett, Brown, Graham, Harapiak, Lecuyer, Nordman, and Sherman WITNESSES: Messr. Eric Maldoff, Alliance Quebec MATTERS UNDER DISCUSSION: Proposed Resolution to amend

Section 23 of The Manitoba Act. MR. CHAIRMAN: Committee come to order. Ladies and gentlemen, the purpose of this committee hearing and subsequent hearings is in accordance with a resolution passed by the Legislative Assembly which read, in part: "WHE REAS the Government of the Province of Manitoba has proposed a resolution to amend

Section 23 of The Manitoba Act, which amendment concerns the translation of the statutes of Manitoba, or some of them, and the question of government services in the French as well as the English language; and WHE REAS the Legislative Assembly of Manitoba deems it advisable to hear the views of Manitobans on the subject matter of this resolution, the Standing Commit tee on Pr ivil eges and Elec ti ons will hold hearings. This is the first in a series of hearings at eight locations across the province.

We have an extensive list of individ uals, totalling at this point 98, who wish to make representations to the committee here in Winnipeg. Before we proceed to commence hearing those who are on the list, I have received the resignation of two members on the commit tee, Messrs. Harper and Harapiak. Is there any motion to replace those members on the committee? Mr. Harapiak. MR. H. HARAPIAK: Mr. Chairman, I am replacing Mr. Santos for this morning. MR. CHAIRMAN: Is that agreed? (Agreed) HON. R. PENNER: I would move that Mr. Parasiuk, the Member for Transcona, replace Mr. Harper on the committee. MR.

CHAIRMAN: Is that agreed? (Agreed) Thank you. 61 I believe as well, Mr. Penner, you had something you wished to pr esent to th e comm ittee before we commence the hearings. HON. R. PENNER: Thank you, Mr. Chairman. I would like to table, as was indicated by the Premier on August 16th, some dr aft amend ments to the propo sed resolution of the Government of Manitoba to amend

Section 23 of The Manitoba Act. I would like, Sir, with your permission just to read three explanatory notes and then the amendments. 1. lt is the intention of the government to introduce these amendments when the Legislature resumes its current Session to consider the proposed resolution to amend

Section 23 of The Manitoba Act. The text of these draft amendments are subject to further amendments which may flow from briefs presented to the Standing Committee on Privileges and Elections - that's this committee - and from technical advice received from counsel including Legislative Counsel. 2. Second ly, as a prefatory note, during the course of the se hearings one or more additional amendments will be tabled, one of which will deal with the term "significant demand" as presently contained in

Section 23. 7(2) in order to define that term more precisely. 3. The text of the proposed resolution as tabled by the Attorney-General upon its introduction in the House and the text as printed in the Order Paper and in Votes and Proceed ings show a typographical variance as follows: As originally presented, the modifying clause "established by or pursuant to

an act of the Legislature of Manitoba" as it now appears in Votes and Proceed ings placed in

Section 23.7( 1)(b)(iv) was placed originally so as to make it clear that it was intended to modify all of

Section 23.7(1)(

b) and not only 23.7(1)(b)(iv) and the amendments that I'm now dealing with take that variance into account so that if I may just point out that in 23.7(1)(

b) where it refers to head or central office of courts and quasi-judicials Crowns and agencies, the modifying established by or pursuant to

an act of the Legislature of Manitoba was presented to the Legislature and intended to modify all of (b), (b)(i), (b)(ii), (b)(iii) and (b) (iv) are all mod ified by tha t phrase established by or pursuant to

an act of the Legislature of Manitoba. Mr. Chairman, with respect to the amendments that I am now tabling, it is proposed with respect to 23. 1, which speaks of English and French as the official

Tuesday, 6 September, 1983 languages of Manitoba, to add the words "as provided for" in

Section 23 and Sections 23.2 to 23.9 inclusive. Turning to 23. 7( 1 ). 23.7 being the clause that deals with services, wherever you have the term "head" or "central office" in 23.7(1) the term central office is to be deleted. With respect to 23.7(1Xb), the words in that modifying clause "established by or pursant to

an act of the Legislature of Manitoba" the words "or pursuant to" are to be deleted from that concluding term so that it reads simply "established by

an act of the Legislature of Manitoba." Again with respect to the same concluding modifying clause 23.7(1Xb), the following words it is proposed to add "but not including any municipality or school board". 23.8, Sir, is a

section which deals with enforcement of rights, 23.8(4) talks about a plan being appr oved by the court and it talks about it being instituted forthwith. The proposed amendment would remove the word "forthwith" in the second line thereof and replace it with the words "within such time as may be reasonably required". Finally, it is proposed to add a new

section and this, Sir, is the equivalent of a

section that appears in the Charter of Rights and Liberties proclaimed in force in Canada last year, "Nothing in

Section 23" - that's 23 of course of The Manitoba Act, "and

Section 23.7 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this amendment with respect to any language that is not English or French." That is submitted on behalf of the government by myself, Sir, this 6th day of September. 1983. MR. CHAIRMAN: Thank you, Mr. Penner.

Before we proceed any further some concern has been expressed by mem bers of the commit tee regarding the location of cameras and any possible disruption that the cameras to the rear of members on both sides of the committee table might cause, what is your will and pleasure? Mr. Lyon. HON. S. LYON: Mr. Chairman, I would suggest that we follow the customary practice in the committee, namely that the space allocated to our friends in the press be as is customary.

I don't see why we're practising this overt form of discrimination against the print media forcing them to sit back when the others have the advantage of sitting so close to us and reading over our shoulders.

I would suggest that in the interests of our friends from the electronic media and in the interests of accommodating ex officio members of the committee who may wish to sit behind us or whatever, that the cameramen be asked to place themselv es in the customary position, either at the top end of th e committee room or at the bottom end of the committee room, so that the table is free and that members can read from their files without somebody peering over their shoulder with a lens, etc., etc.

Not that my honour able friends here from the pr ess would customarily do that, but I think we'll remember that the Minister of Finance in Ottawa found that somebody flashed a camera on the Budget once and he spent three weeks trying to get out of that kind of a problem. 62 MR. CHAIRMAN: I hav en't seen any zoom lens yet this morning, however I think it's a reaso nable accommodation. I had asked the Clerk of Committees to arrange seating such that we could maximize the space available for the public and an additional press table.

That meant of necessity that members who are not officially members of the committee would have to sit behind the normal members and the chairs against the wall. lt meant that that is awkward for those members, so I would ask members of the media with cameras to move them either to the rear of the podium near the press tables or immediately behind myself, as Chairman. Would you move the cameras please? Is there any other further business before we begin the hearings? I would also ask the camera people to ensure that they do not block the vision of the recorder in recognizing members.

Last week in perusing the list of individuals wishing to make representations to the committee, I raised with Mr. Sherman and Mr.

Penner the concern that two organizations had travelled a great distance from outside the province to attend at these hearings, and rather than request that they wait for their positions on the list, which I understand are somewhat further down the list, No. 45, the Allia nce Quebec, and No. 71, the Federation des francophones hors Quebec, it was suggested by me, as Chairman, and agreed to forward to the committee as a suggestion that these two groups be advanced on the list and be heard first this morning. Is there any discussion of that suggestion? lt is moved by Mr. Penner to concur in that suggestion.

Seeing no discussion, is that agreed? Agreed and so ordered. I'd like then to call on Mr. Laurent Marcoux of Alliance Quebec. Mr. Marcoux please. MR. E. MALDOFF: Mr. Chairman, I am Eric Maldoff. I am the President of Alliance Quebec. Before we commence proceed ings, I was wondering if I might beg the indulgence of the committee. We have come all the way to your province yesterday, a delegation from Alliance Quebec, including our Vice President Michael Goldbloom, our Executive Director Geoffrey Chambers, and our Research Director Laurent Marcoux.

I was wondering if seats might be arranged for them behind me in the sense that they may have certain technical matters that they may wish to respond to the committee on. MR. CHAIRMAN: Certain ly. MR. E. MALDOFF: Thank you. MR. CHAIRMAN: I've asked the Clerk to move some of the additional chairs on the side so that your support staff will have a place to sit. MR. E. MALDOFF: Thank you, Mr. Chairman. MR. CHAIRMAN: Please proceed. MR. E. MALDOFF: Thank you, Mr. Chairman.

Alliance Quebec is a politically non-partisan, public interest organization whose principal purposes are to advance the emerging consensus on laguage issues

Tuesday, 6 September, 1983 between French-spe aking and Englis h-s peak ing commun iti es, and to safeguard the in stitutions necessary for the well-being of the English-speaking community in Quebec. We are an organization with a membership of over 40,000 people in our province. We are the largest organization representing English speaking people in the province of Queb ec. Our communi ty in th e Pr ovi nce of Queb ec numb ers approxima tely 1 million people, greater than the populations of several provinces of Canada.

The All iance is fully cognizant of the social tensions which can be generated by linguistic problems. lt is our belief, however, that with sufficient good will and mutual respect, such problems can be readily resolved. And they must be resolved. For the harmonious co­ existence of French-speak ing and English-speaking people within a united Canada is a source of richness which we are privileged to have. Our linguistic and cultural duality is not a burden to shoulde r, but an immeasurable source of wealth.

Alliance Quebec is firmly committed to the principle that English-speaking and French-speaking people can live and work together with dignity and mutual respect. We believe that this is to the advantage of all Canadians. Together we have built a great country and together we shall meet the enormous challenges of the 80's and the decades that follow. We are dedicated to ensuring that Canada is a country in which all Canadians feel welcome, at home and secure. Canadians must feel that they are first-class citizens wherever they choose to live in this land regardless of which official language they speak.

Not only is this just, it is necessary if we are to achieve the unity of purpo se essential to meet the great challenges which await us. We have travelled to your province to present this brief, because the constitutional amendment originally proposed by the Government of Manitoba is to be commended. The pr ocess of negotiation and concilia tion pur sued by the government is to be app laude d as a shinin g example of resp onsible government. The content of the proposed amendments is to be supported because it is constructive, positive and just.

We do not share the views of those who belie ve that they can sit back and assume that justice and fairness will prevail. Only hard work and active participation will ensure Canadians the society they desire. Therefore, we have come to support actively an initiative which will make Canada a better place for all of us and our children. We are also here because as Engl ish-speak ing Canadians we understand what it is to experience attempts to deny the legitimacy of our community and, indeed, our language.

We know the feeling of living in one of this country's two official languages and having our status as first-class citizens questioned because of it. We have felt compelled to present a submission to this comm ittee in order to correct any misunderstandings concerning the status of the English­ speaking community in Quebec. Despite the pressure on our community exerted by our current government, we continue to receive more basic services in our language including universities, school boards, hospitals and social services than do our French-speak ing 63 counterparts in Manitoba.

We find it regrettable that reference is so often made to the lowest common denominator in these matters as justification for inaction or retrogression. We deplore the cynicism of those who would contend that the rights of Franco-Manitobans should not be restored until the Quebec Government changes its laws affecting our community. lt seems that for the most

part lingui stic majorities only express concern for linguistic minorities in other provinces when they wish to mistreat their own. Manitoba will set a new standard for Canada. The impact of the recent development in Manitoba has been felt far beyond the borders of this province. Indeed, the proposed amendments may well usher in a new era of greater respect for both English-speaking and French-speaking people in Canada.

Yet, the issue at hand is one which transcends even the problem of the treatment of linguistic minorities across Canada. 1t is an issue of national unity, which goes to the heart of the survival of our country. For the govern ment of our pr ovinc e has repeatedly attempted to justify its efforts to dimini sh the status of the English language by pointing to the mistreatment of French-speaking Canadians outside of Quebec.

Considerable emphasis has been placed on the violation by pr evious Ma nitoba Gov ernme nts of th e constitutionally guaranteed right to use French before the courts and in the Legislative Assembly. Adoption of the proposed amendments of The Manitoba Act would undercut the argument of the Quebec Government and remove yet another pretense for the government's treatment of the Engl ish-sp eaking community in Quebec.

Indeed, Manitoba's adoption of the amendments would deal a cutting blow to the Parti Quebecois thesis that only an independent and separate Quebec can adequately protect the rights of French­ speaking Canadians. For adoption of the amendments would present a considerable impediment to the present Quebec Government's efforts to divide Canada. The crucial importance of the proposed amendments can therefore scarcely be overstated. Indeed, the eyes of all who believe in a strong and united Canada have now turned to Manitoba.

Since the Forest case, there is no doubt that Manitoba has failed to abide by its constitutional obligations. Of this, there is no dispute. The issue, rather, is how best to remedy the problem and to right past wrongs. The solution, we submit, must be rooted in generosity, in understanding and in respect. Alli ance Quebec commends the Government of Manitoba for its courage and vision in proposing the amendments to The Manitoba Act dealing with French language rights. Manitoba, in so doing, has add ressed itself squarely to a most difficult problem of democracy: ensuring respect for the minority.

In assessing the merits of the proposed amendments, it is well to bear in mind the words of Sir John A. MacDonald that the greatest test of constitutional freedom is to ensure that the rights of the minority are respected. The proposed amendments to The Manitoba Act would accomplish that most difficult task in a just and equitable fashion. They would remedy a longstanding injustice and would, by provid ing certain government services in French as well as in English, update the guarantees of 1870 and bring them in tune with the

Tuesday, 6 September, 1983 realities of contemporary government. Yet, the provision of the services contemplated in the amendments would not, if the Quebec experience is any indication, result in the loss of jobs or hardship for English-speaking Manitobans. Nor can they be regarded as pandering to one small minority among many others. In putting forward ther proposed amendments, the Government of Manitoba has acted with a generosity of spirit and a commitment to do justice which can only serve to inspire our fellow Canadians, both French­ speaking and English-speaking.

The Government of Manitoba must now complete its task in the same spirit, with a continued commitment to justice and respect. We view the process of negotiation as having been a critical part of this solution which has been proposed by the Manitoba Government. Although the prospect of court-ordered bilingua lism may be sufficient to warrant an agreement between the Manitoba and Federal Gov ernme nts and the Societe Franco­ Manitobaine, the process of negotiation which has led to the proposed amendments has, in itself, been a positive and laudable endeavour.

We applaud that negotiation and the negotiated agreement. Unlike the Manitoba Government of 1890, the current government has entered into discussions with the franco-manit oban popula tion concer ning th e constitutional protection of their language rights. In stark contrast to the government of 1890, the present­ day government has proceeded by way of the Canadian democratic process, the essence of which li es in negotiation and dis cussion lead ing to workable solutions.

The constitutional protection of French language rights is not only consistent with democracy in Canada, but it is also an integral part of the Canadian political and constitutional trad ition. The Government of Manitoba, in refusing to run the risk of court-imposed bilingualism, and in opting for a negotiated solution, has acted in accord with the finest traditions of the Canadian policy. Indeed its willi ngness to discuss the issue of the linguistic minority in question in a positive and constructive manner will stand as a remarkable example to other provincial governments, including our own.

I turn now to the question of the entrenchment of language rights. Opposition to the entrenchment of rights seems to be based in part upon the fear or distrust of any kind of constitutional provision, which would circumscribe the power of the Legislature. Yet the experience in Manitoba is ample proof of the need to guarantee basic rights. lt speaks eloquently of the need for curbs on the powers of the legislative majority of the moment. lt should be remembered that the guarantee of language rights is of the very essence of Canadian constitutionalism.

For amongst the several objectives of the architects of the Canadian Constitution, none was more important than the effort to accommodate the needs of French-speak ing and English-speaking Canadians. This primary concern of the Fathers of Confederation was reflected not only in the federal system of government, which was adopted, but also in the entrenchment of

Section 133 of the BNA Act of 1867, upon which

Section 23 of The Manitoba Act was modelled. Thus one of the very fi rst human rights ever entrenched in the Canadian Constitution was related 64 to fundamental language rights. There can be no subject more appropria te for entrenchment in Canada. With respect to the content of the pr oposed amendments. lt is important that English-speaking Manitobans not allow themselves to be alarmed by bogeys. As representatives of Eng lis h-sp eaking Que becers, we see nothing in the pr oposed amendments which can reasonably give rise to fears of an injurious impact upon Eng lis h-spe aking Manitobans.

With respect to the language of the legislation, it is worth drawing attention to the fact that in 1971, at the Victoria Conference of First Ministers, Manitoba had publicly indicated its willingn ess to publish its statutes in French as well as in English. Manitoba had also agreed in 1971 to a constitutionally-protected right to use French and English in the debates of the Legislative Assembly. With respect to the Legislature, the proposed amendments are reasonable, clear, and indeed relatively modest in scope. The amendment would, however, put an end to the long-standing failure to abide by the Constitution.

There are few things more dangerous in our system than the failure to respect the Constitution, for such behaviour undermines the Rule of Law and imperils all of the rights and freedoms so deeply cherished by Canadians. The amendments are therefore to be warmly applauded. And yet, the proposed amendments respecting the Legislature would not only give effect to those rights entrenched in 1870 and accepted once again in 19 71, they would do so in an equitable and rational manner.

The amendments would provide for a reasonable time frame for the translation of statutes, and they would exclude private acts and public municipal acts from the translation process. Hence, municipalities would be under no obligation to translate municipal by-laws.

Moreover, the agreement with the Federal Government would minimize the costs involved in the translation of provincial laws. lt is also worth noting tha t th e contribution of the Federal Government to the cost of translating Manitoba's laws stands as a reminder that the issue at hand is one of import not only for Manitoba but for all Canada and for all Canadians. The amendments would also recognize French and English as the official languages of Manitoba and

Article 23. 1 of The Manitoba Act would thus stand as a clear affirmation of the Canadian dual ity. We add ress our comments and our support to the proposal initially brought forward by the government in this regard. The symbolic importance of such an affirmation must not be underestimated. lt would be the one outstanding feature of the amendments which would remain in the minds of Canadians long after the present controversy has abated.

To remove or to narrow this provision, for whatever reason, would be to destroy one of the most far-reaching aspects of any law, and in particular of a constitutional law: its symbolic significance to the community. In this instance, the symbolic significance to Canada is of critical importance. Overal l, the pr oposed amendme nts and the agreement would provide an eminently reasonable and orderly method of doing justice at minimum cost to Manitobans. Viewed against the backdrop of possible court-ordered bilingualism, the amendments and the agreement represent a judicious solution to a complex problem.

Tuesday, 6 September, 1983 The provisions of the amendments which go beyond

Section 23 of The Manitoba Act are the subsections dealing with communications between the public and certain governmental institutions. As representatives of an English-speaking community, which is confronted by a government preoccupied with the past, we applaud the inclusion of such rig hts in the pr op osed amendments. They are progressive and forward-looking and would, in effect, bring the mino rity language guarantees of 1870 into the twentieth century. The intent of the linguistic guarantees of 1867 and 1870 was clearly to provide minority language rights in the sphere of the citizen/state relationship.

At that time, however, the role of the executive in this rela tionship was considerably less important than it is today. lt could scarcely be foreseen in 1870 that governmental services would grow so dramatically during the next 113 years. Today, governmental regulations and bureaucracy touch us all in an infinite variety of ways every day of our lives. Hence, to include such rights in the proposed amendments is to acknowledge the develo pment of government in Canada during the past century. lt is to be true to the spirit of

Section 23 and its minority language guarantees. lt is a contemporary response to present-day needs and realities. Moreover, the recent experience of the English­ speaking community in Quebec suggests that there is little substance to the notion of "creeping bilingualism," the idea that the amend ments will lead to ever­ increasing French Language Services to the detriment of English-speaking Manitobans.

At the present time, despite th e excesses of the cur re nt Qu eb ec Government, English-speaking Quebecers continue to receive more basic services in our language than do our French-speaking counterparts in any other province of Canada, including Manitoba. These services extend to health, education, social and government services and encompass universities, hospitals, homes for the aged and a good public school system. Yet, there has been no deleterious impact upon the rights of the French-speaking majority in Quebec as a result.

In particular, the provision of English services has certainly not led to any loss of job opportunities or upward mobility for Francophones within the Quebec provincial civil service. Thus, the Quebec experience demonstrates that providing certain government services in the minority language will not have an injurious impact upon jobs and promotions for English-speaking Manitobans. In Quebec, every recent survey and opinion poll demonstrates that the overwhelming majority of French­ speaking Quebecers wish to retain a healt hy, viable English-speaking community in Quebec.

And it can scarcely be overemphasized that these rights, including our traditional access to many government and other services in both languages, has been essential to our sense of well-being and our sense of belonging as Quebecers and as Canadians. There seems also to be an inherent contradiction in the twin arguments that, on the one hand, Manitoba's French-speaking population is too small to warrant entrenched rights and that, on the other hand, such entrenched rights would lead to rampant province-wide bilingualism.

Even if the percentage of Manitoba's French-speaking population were to triple some time in the future and thus attain a level similar to that of the Engl ish- spe aking popu lation of Qu ebec, the 65 experience in our province amply demons trates that there would be no loss of jobs or other adverse impact upon English-speaking Manitobans. The provision of services is not a source of pressure on jobs or upward mobility. We must conclude, therefore, that the fears of "cr eeping bil igual ism" and the loss of job s are groundless, and that

Article 23.7 dealing with the communic ations between public and certain governmental institutions is an essential minimum for French-speaking Manitobans. Accordingly, we see no justification for the removal or reduction in scope of

Article 23.7. One central belief has led Alli ance Quebec to journey close to 1,500 miles to particip ate in the hearings of the Manitoba Legislative Assembly: our belief in the future of Canada. Our country's future will be deeply affected by the decisions which are soon to be taken in Manitoba. The issue at hand touches upon the principal leitmotif of the Canadian federation, the belief that both our French-speaking and English-speaking communities can survive and flourish within a single nation state.

Adoption of the proposed amendments and, in particu lar, the provision respecting government services would give renewed strength and vigour to that ideal. Failure to do so would have a very serious effect. The Canadian federation would be seriously damaged and the Quebec Government's independence option strengthened as a consequence. As Canadians, we must demons trate with concrete act ions our commitment to mutual respect and tolerance, for it is in the development of a shared mutual respect that the strength and unity of Canada ulti mately rests.

The proposed amendments would stand as an unequivocal commitment to justice and respect. They would stand for generations to come as a commitment to Canada. Alliance Quebec therefore respectfully urges the Legislative Assembly of Manitoba to adopt at its earliest opportunity the proposed amendments to The Manitoba Act without reducing in any way the scope or significance of the amendments. We urge you to do this not because of the spectre of the consequences which would result from failure to do so, but because the proposal is fair, just and right. Mr.

Chairman, as we entered the room today, we were handed a copy of what we understand to be a di scussion paper put forward by the Honourable Attorney-General. We have yet to have the opportunity to study the contents of that proposal. However, we do note that there is provision for a reduction in scope of

Section 23. 1. We consider this to be a matter of great importance, and we can't overemphasize enough the importance and symbolic importance of an unequivocal affirmation of the importance and respect for both languages in Canada. With respect to the other matters mentioned in the discussion paper, we would respectfully request the indulgence of this committee that we be granted the opportunity to reappear if necessary later on in the hearings to discuss or perhaps comment on those changes. In any event, we would be prepared to proceed to entertain questions and explain the position of Alli ance and our support for the initial agreement by the Government of Manitoba at this time. Thank you.

Tuesday, 6 September, 1983 MR. CHAIRMAN: Thank you, Mr. Mal doff. Are there any questions by members of the committee? Mr. Lyon. HON. S. LYON: Mr. Maldo ff, in the second-last page of your brief you make the statement, "adoption of the pro posed amend ments. and in particular of the provisions respecting government services, would give renewed strength and vigour to that ideal. Failure to do so would have a dramatically dia metrical effect. The Canadian Federation would be irreparably damaged and the Quebec Government's indep endence option immeasurably strengthened." In that connection, Mr.

Maldoff, I would appreciate having the comment of your group or any of your colleagues who are with you with respect to that statement because you will be aware, of course, that the provisions for the extension of French Language Services in Manitoba have been going on, in my recolle ction, for at least 20 years. As a matter of fact, after the Forest case, there was renewed interest by the previous government in extending French Language Services in Manitoba.

Statements were made publicly by our government and then subsequently by the New Democratic Party Government when they came into office in March of 1982 about the establishment of the French Language Secretariat, the provision of certain services in French to the people of Manitoba.

I would appreciate having your comment on why all of a sudden this program, which has been ongoing as a matter of government policy for some considerable time, achieves this kind of pre-eminence in your mind that Canadian unity all of a sudden is going to be struck down unless this program is all of a sudden entrenched as a result of an agreement which this government, the NDP Government, has chosen to make with the plaintiff in a case which had been dismissed at the trial and at the Court of Appeal and was on its way, may I suggest, to being dismissed in the Supreme Court when this government chose out of some kind of abject fear of having the court make its decision upon the case to enter into an agreement, the prin cipal component of which was the entrenchment of the very same services that were already being offered as a matter of government policy.

How did this entrenchment provision that is contained in the amendments to

Section 23, how did it arrive at a position in your judgment where the Canadian Federation would be irreparably damaged and the Quebec Government's independence option immeasurably strengthened if this were not now passed or entrenched in the Manitoba Constitution? MR. E. MALDOFF: Well, you've rr;ade several points, Mr. Lyon, which I think require reply. I'd like to deal with one which is not really to the essence of the question which you have raised, but the comment with respect to the ulti mate outcome of the Bilodeau case before the Supreme Court.

With the greatest deal of respect, I think that it's fair to say that this is a matter which ultimately the Supreme Court may find itself deciding upon. I would point out that, out of the Province of Quebec, we have had a de cision of our superior court in the Collier case which is quite similar to the Bil odeau case in which our Superior Court struck down 66 certain decreed colle ctive agreements enacted by the Government of Quebec because they were adopted solely in one language. Therefore, I think - (Interjection) - yes, she was a teacher.

The question, therefore, of what the ultimate outcome of the decision of the Supreme Court would be, I don't think is quite as certain as perhaps you might feel. We believe there is a significant likelihood that Mr.

Bilodeau would achieve success before the Supreme Court of Canada and I think all parties concerned feel that a victory before the Supreme Court of Canada is not the way to solve the very serious constitutional problem currently facing the Province of Manitoba and therefore the Government of Manitoba has embarked on a very laudable process of negotiation and trying to arrive at a solution which is tailor-made to Manitoba of 1983, which is in accord with the realities of modern-day government, in accord with the realities of Mani toba soc iet y, and we presume sinc e the Manitoba Government was de:':locratically elected by the people that it is a fair reflection of the spirit and the current day realities in Manitoba.

HON. S. LYON: Government popularity has changed, Mr. Maldoff, as we ?11 know. MR. E. MALDOFF: Well, as you well know, Mr. Lyon, one wins elections and has a mandate from the people. HON. S. LYON: One loses them by exercising that mandate in contradiction to what the people wish. MR. E. MALDOFF: I could enjoy this a great deal, but the last election results might be a comment of certain positions of the previous government of Manitoba on constitutional matters. HON. S. LYON: As the next one will be of positions of this government. MR. E.

MALDOFF: I do recall that you were opposed to entrenchment of rights at that time also. HON. S. LYON: Along with seven other provinces, including Quebec. MR. E. MALDOFF: They agreed after the election result in Manitoba.

With respect to the consequences within Quebec and for the Canadian federat ion that you have asked me to comment upon, we have forwarded to all th e mem bers of the Legi slativ e Asse mbly some documentation included which was an article, an opinion piece written by Lise Bissonnette who is the Editor-in­ Chief of Le Devoir, who reflects a very important current of thought within our province and is highly respected as an opinion leader within our province.

I think the essential thrust of her argument is that the constitutional amendment is different from mere adminis trativ e practice, that when one moves to enshrine - and I use those words advisedly - enshrine certain rights in a Constitution, one is saying that these rights are fundamental to our country, fundamental to our society. These are things we believe in and are committed to now and for the future. We will only change I I

Tuesday, 6 September, 1983 them by special occurrence and by very extraordinary measures which are required to amend a Constitution. Therefore, I don't think one can compare the process of administrative improvement of services to the French speak ing community with th e qu estion of constitutionally making the affirmation that these are bottom-line issues, bottom-line values that we, as Canadians, share, and Canadians react accordingly. That's why the constitutional debate in the early 1980s was such an important debate for all of Canada and one that occupied so much interest and attention.

As Miss Bissonnette points out in her article, and this is a view widely shared within Quebec, there is to say the least, a considerable amount of cynicism within our province about the ability of English-speaking people and French-speaking people to live together in Canada. There is a wide-spread feeling, and not without justification, that the French-speaking population of Canada and of Quebec has to fight and scrape for every right, every inch of territory to ensure that it can feel at home and secure and feel that members of that community are first-class citizens in this country.

So when we move to the question of the proposed constitional amendment, it's also a question of the spirit in which this is done. Is this going to be done in a spirit of generosity, in a spirit of respect, in a spirit of accommodation, in a spirit that says: let us join together as Canadians and start working to build a better Canada and get on with the job or is this again going to be a begrudging divi sive fight where communities have to tear each other to bits? I think, ultimately, the amendment proposed, however it comes to pass, will be an improvement and a benefit to Canada.

But I also would point out that if this amendment is undertaken in a generous manner, in a spirit that shows that we want to make a fresh start of things in this country, it will be to the benefit of Canada, to the unity of our country, and it will definitely set aside the arguments of governments, such as ours in the Province of Quebec, which argues there's no hope for Canada, we must give up on Canada, we've had too many experiences in Canada - just look at the treatment of the Francophones of Manitoba 93 years ago; look at The Education Act in Ontario, in Manitoba, and so many other provinces of Canada in the early 1900's.

Our government has given up on Canada, but there are a lot of Quebecers, who though cynical, though concerned, though doubtful, still want to hope, still want to believe, and Manitoba can play the role right now of giving our commun ity as Que becers, Eng l ish­ speaking, and French-speaking, that hope. We are urging the Government of Manitoba not to give the opponents of Canada the arguments and ammunition they need to further their case. MR. CHAIRMAN: Before I recognize Mr.

Lyon with another question, I would caution both members and witnesses that we seem to run into the same problem in committee that we do in the House. Long questions lead to long answers. We have a long list. I would caution both witnesses and members to try and keep questions and answers short and to the point. HON. S. LYON: Mr. Chairman, to Mr.

Maldoff, given the fact that, as I have stated, there was improvement 67 being made by government polic y over several governments of Manitoba in the past number of years with respect to the provision of French Language Services; given the fact that there was no divisiveness caused in Manitoba as a result of those government programs, which I can tell you as a lifetime resident of the province were generous, were programs that were being offered with respect, were meeting all of the idealistic criteria which you have established as being the hallmark of the constitutional amendment; given the fact that it appears from the wave of public response that we have had since the government made public its desire to entrench French Language Services and extend them in Manitoba by way of a constitutional amendment; given the fact that entrenchment and extension are causing great division within Manitoba,

whereas the previous program under government policy was not causing such division at all, do you still feel it's advisable for Manitoba to be divided merely for the sake of entrenchment? MR. E. MALDOFF: I don't think it's ever advisable for a society to be divided. I think it's up to the elected leaders of the population to show leadership and try to promote harmony and unity.

Inasmuch as even the previous Government of Manitoba was committed to the provision of these services, we would urge both the government and the opposition members to play an active and constructive role in explaining to the population that there is no grave and dire consequence that will flow from the entrenchment to these provision.

Obviousl y th e op position, when it was the government, felt that there would be no grave and dire consequences, and obviously the population didn't perceive any grave and dire consequences, because they did not rise up against the administrative practice and policy of the previous Conservative Government of Manitoba.

Therefore the facts exist, there is no problem, and therefore the fact exists that leadership should be shown by all sides of the House, and we urge people to show that leadersh ip, to explain that there will be no grave and terrible results that flow from this, it will actually promote and lead to a better Province of Manitoba and a better Canada. HON. S. LYON: How do we know, Mr. Maldoff, how the court will interpret these constitutionally-entrenched provisions after they become part of the, as you say, the enshrined Constitution of Manitoba.

How do you, or I, or anyone else know the extent to which courts will be called upon to make interpr etations of these provisions which government, as a matter of policy, would never put into effect? MR. E. MALDOFF: As a member of the Bar of the Province of Quebec, I have the greatest respect for the judici ary, the sound and reasonable judgment of these learned men who are appointed to serve our society so well.

I have every confidence that as they are called upon to interpret any provision of law, they will do so in the spirit, and against the backdrop of the intentions of the Legislature and the people of Canada. In terms of how this will be interp reted - one implies, or feels, that it is implicit in this question that perhaps

Tuesday, 6 September, 1983 it's inappropriate for courts to play a role of interpreting the basic rights of Canadians. We question that. I think, with the constitutional amendment, The Canada Act, the issue of the absolute supremacy of Parliament has been forever put behind us as Canadians and we have opted for a Canadian constitutional arrangement, which does recognize that there are certain basic rights of Canadians which must stand above and beyond the reach of any Legislature. I have no concern and no fear about it.

As a man who led a province, and was the Premier of a province, you understand that even in the days before The Canada Act our courts were called upon to pass upon and interpr et the distribution and division of powers established under Sections 91 and 92 of The British North America Act. This is a role the courts have played, and except for a certain Premier in Canada at this time, it seems that most Premiers throughout the history of Canada have had respect for and abided by the reasoned and sound decisions of our highest courts of the country. HON. S.

LYON: On the topic of enshrinement and chiselling in stone any provisions of the Constitution, you will be aware, Mr. Maldo ff, cont rary to the impression that you've left, that the supremacy of Parliament is maintained in the present Canada Act by virtue of the notwithstanding clause, or the opt-out clause so-called, which was specifically placed in the Constitution as a parliamentary check on the presumed, or hoped against excesses that courts might impose upon the people against the judgment and the wishes of the people as evidenced by many, many experiences in the United States.

That being th e case tha t all of the so-called fundamental rights that are contained in the Canadian Charter of Rights are subject to a notwithstanding clause which permits the Parliament of Canada and/ or the Legislatures of Canada to legislate their way out of constitutional predicaments which courts might impose, what would your attitude be if you insist upon entrenchment of French Language Services?

What would your attitude be to a similar kind of opt-out clause which could be placed in this amendment, which would, as in The Canada Act, ensure the continued right of Parliament, or in this case the Legislature of Manitoba, to enact laws which are in accordance with the wishes of the people? MR. E. MALDOFF: I think that there will be other witnesses who will testify before this honourable body on the precise constitutional matters and implications of various provisions in a very technical matter.

I would not want to wade in to that kind of discussion beyond saying, first of all, that it would seem that the proposal you're putting forward is extremely hypothe tical in nature and this is the first time that anybody has mentioned the concept of having an opting out with respect to these rights. But in addition to that, I think we should point out that there are certain rights that exist right now in the Canadian Constitution which stand above the touch and the reach of any legislative body in Canada. I would cite

Section 133 of The British North America Act of 1867, and I would cite

Section 23 of The Manitoba Act of 1870. 68 So the concept of putting certain rights above the touch and the reach of majorities that may exist from time to time has been recognized in Canada for quite a long time, I think since the days we got this country together and agreed that we wanted to have a country that would recognize the importance of both and the contribution of French-speaking and English-speaking citizens. HON. S. LYON: Mr.

Maldoff, not to get into a wearisome legal dispute with you, the right to change 133 and the right to change 23 of The Manitoba Act was always impli cit, provided there was unanimous consent of the provinces and the Federal Government. MR. E. MALDOF F: That is always the case in constitutional amendments. HON. S. LYON: So nothing is enshrined though beyond the reach of Parliament for all time. MR. E. MALDOFF: One has instituted measures which make such amendment a very serious and important matter, and it's beyond the mere whim of a legislative majority existing at a time.

There are a series of checks and balances to ensure that, when one is dealing with the fundamental values of our country, we act in a very careful and considerate and thoughtful way not only to the interest of a momentary majority, but also to the interest of the minority that may exist at any time and on any issue. When I say minority, I don't only refer an ethnic minority or linguistic minority. I mean the phenomena of a numerical minority that exists on any issue from time to time. HON. S. LYON: Just an observation, Mr.

Chairman, in Canada, without the benefit of very many entrenched rights at all, we have achieved a degree of individual freedom for our citizens which is the envy of, I would say, 95 percent of the world. So I think we have come quite a way under the system without entrenchment. I am not quite so persuaded as Mr. Maldo ff that entrenchment is the be-all and the end-all and the answer to greater freedom of individual Canadian citizens. We have enviable freedom in Canada under the existing parliamentary system. My particular question, however, would be this.

In the brief at Page 7, it says, "The Government of Manitoba, in refusing to run the risk of court-imposed bilingualism and in opting for a negotiated solution has acted in accord with the finest traditions of the Canadian poli cy." I wonder if Mr. Maldoff could tell us what risks of court-imposed bilingualism he was referring to which might have arisen out of the Bilodeau case, the thrust of which, of course, was to declare invalid all laws passed in Manitoba since 1870 because they weren't translated into French. MR. E.

MALDOFF: In using these words - and I would like to just comment on a comment of the Honourable Mr. Lyon. Yes, Canada does have, for the most part, a fairly enviable record in terms of libe rty. But let me tell you, Mr. Lyon, and gentlemen of this committee

Tuesday, 6 September, 1983 that I, as an English-speaking Quebecer, do not in any way envy the status or the treatment of Franco­ Manitobans over the last 93 years and understand very well, and the experience we've had in Quebec is very minor compared to the experience of the Franco­ Manitobans here. There is nothing to envy in that treatment. With respect to the qu estion of court-im posed bilingualism, I think the answer is very simple; that we are alluding in our brief and submission to you not to a concept that is of major concern to us, but to rhetoric and language which seems to be emanating from here.

We are merely alludin g to, it seems tha t certain opponents are running around, discussing the concept of a risk of court-imposed bilingualism. That is not our understanding of the issue and not our assessment of risk. HON. S. LYON: Is it not true, Mr. Maldo ff, that the government's own constitutional advisor, Mr.

Twaddle, advised the government as far back as the spring of 1982 that the conditions that the government would be agreeing to in the agreement with which you find so much favour went far beyond any conditions that any court could ever have imposed upon Manitoba as a result of the Bilodeau case going on to trial before the Supreme Court?

What I am wondering about is: what are these horrendous court-imposed bilingual conditions that you and the government stand in so much fear of from the very same court that you say should now be allowed to make decisions with respect to how departments are staffed to the exclusion of the elected representatives of the people? MR. E. MALDOFF: With great respect, I think we have to start this discussion at the beginning point. We are not talking here of a newly-created problem. There is a fact which exists. There is a fact that there is

Section 23 of The Manitoba Act. There is a fact that this is being challenged before the courts, and there is a fact that, because of the Forest case, it is quite clear that Manitoba at a minimum has violated its constitutional obligations. We may be speculating a little bit right now until the Supreme Court ultimately deals with this issue as to what the consequences of the breach of that obligation would be. Certainly attorneys for Ms. Collier in Queb ec are of that opinion, borne out by the Superior Court of the Province of Quebec, that the consequences are quite serious in the sense that all laws adopted contrary to the provisions of

Section 133 in the case of Quebec and similarly

Section 23 of the Province of Manitoba would be inoperative or null and void, which could create a situation where we have the illegiti macy of every law adopted by the Government of Manitoba since 1890 put in question and doubt, and undermine the authority of the government with its own citizens. I don't think that is the type of situation we want to see develop in any province of Canada.

The issue at hand is that, given the fact that there has now been an assertion by the highest court of the land that Manitoba through the 1890 Official Language Act has violated its 1870 constitutional obligation, how do we solve this problem? Well, we can resort to a solution which was made in 1870, and perhaps not 69 terribly appropria te to 1983 and we would submit not terribly appropr iate to 1983, or one can do as the government has done and said, what was the real spirit of the 1870 guarantee?

Let us come to a solution, negotiated with the French-speaking community, that will respond to the needs of the government and to the needs of Manitoba society in 1983 and reflect the spirit, because that spirit has now been accepted by the court, that existed in 1870. I think that is what the government has done. To a certain extent, the amendment will save costs for the Province of Manitoba in the sense of the Federal Government will be assuming a certain amount of the translation costs. Not all statutes will have to be translated.

In addition to that, there will be a dela y of time to allow for the orderly rectification of the breach of a constitutional obligation, and the addition to that of the recognition that the intention in 1870 was to allow both French-spe aking and Engl ish-sp eak ing people to feel secure of government service to the extent there was government service at that time. Now in 1983, the same spirit is prevailing in recognition of the fact that government is immeasurably larger than it ever was in 1870. HON. S. LYON: You say on Page 10 of your brief, Mr.

Maldoff, "The amendment would, however, put an end to the lon g-stan ding failur e to abide by the Constitution." Wasn't it a fact that the Forest case in 1979, and the subsequent announcement by our government in the early part of 1980, that of course Manitoba would abide by the rule of law and that steps would be taken immed iately to reins tate

Section 23; in fact an amendment was presented to the Legislature and passed by the Legislature, null ifying the Act of 1890. Did that not then have the effect of restoring all of the negated constitutional rights? What further restoration is needed? How does the entrenchment of French Language Services, which was never contemplated in

Section 23 of The Manitoba Act in the first instance, how does that bear upon the restoration, as you say here, or put an end to the long-standing failure to abide by the Constitution? There was no long-standing failure with respect to French Language Services except for their limited use in the courts and in the Legislature of this province. Is there not in your brief somewhat of a confusion of principles and the understanding that you have of the restoration of

Section 23, and trying to somehow or other imagine that the amendments proposed by the present government are in fulfillment of what the court ordered in 1979? They are no such thing, except with respect to translation. MR. E. MALDOFF: There are several points which have been raised in this question. I think the two most important of which are the following, or I would respond to them as follows. With respect to government services, you 've made the comment th at these were not contemplated in 1870 and we would respectfully submit HON. S. LYON: Except in the courts and the Legislature. MR. E. MALDOFF: Well, I think if we go back and examine the scope of government and its interface with

Tuesday, 6 September, 1983 its citizens in 1870, people looked to the government for legislation and looked to the government for justice. Those are the two areas where people had contact. We didn't have all sorts of boards dealing with marketing and farming and all those types of things which currently exist. We didn't have all these government departments covering a wide range of areas which touch people's lives on a daily basis.

We would submit that in 1870 it was definitely contemplated that the place where government and the public interfaced would be an area which was protected, an area in which citizens would be assured their ability to deal with their government in both languages. In 1870, yes it was very restricted; in 1870 government initiatives were very restricted. With respect to the assertion that the repeal might have rectified the problem arising as a result of the adoption of The Official Language Act of 1890, no that does not entirely remedy the situation.

Yes, it may dispose of The Official Language Act and it may solve the problem for the future on the condition that the Legislature and the courts start functioning in both languages as of the date of repeal, but we still have 93 years of laws or 90 years of laws that were adopted in one language in violation of

Section 23. That problem persists. That problem still exists as of this day. HON. S. LYON: Mr. Chairman, that problem,. since 1979, has been in the course of being settled. The job of the Legislature of 1981 or 1982 or 1983 is not so much to atone for the transgressions of previous Liberal majorities in the Manitoba Legislature, as it is to give effect to court judgments in response to our un iform respect for the rule of law and to do so in a reasonable manner. The fact that translation can't be done overnight is a fact that any court would have to take into account.

The court cannot, as you are well aware, order the impossible. That being the case, how do all of these other, I would say - or they have been described as quid pro quo items, such as the entrenchment of French Language Services - how do they, in any way, relate to the so-called restoration of constitutional rights or failure to abide by the Constitution? Are they not really extraneous to the re-implementation of

Section 23, which was accomplished by the Supreme Court and acted upon immediately at the next Session by the Legislature of Manitoba. What further needs to be done? MR. E. MALDOFF: I don't think that we should be approaching this issue from the point of view or from a perspective of atonement for past sins. The issue before us is how we start to move on to the future and to rectify an existing legal problem. That's not a question of atonement and no one is asking for atonement.

What one is urging is that the solution to an existing problem be a just, fair and reasonable sol ution, one that Canadians and Manitobans can be proud of and put us on a footing to move forward with unity and with a sense of confidence in one another and the future of our country. With respect to your comment about the court not being able to order the impossible, I would not like to speculate on the nature of what a court order could be in this case, but implicit in the line of argument that 70 you have mentioned, Mr.

Lyon, is the concept that if a government violates the law and does it for a short time, then the violation is rectified. If a government violates the law and does it long enough, then you don't have to worry about the problem. I don't think that that's the spirit under which our courts will operate, and I think the fact that this situation has persisted for 93 years, will not really alter the approach of the courts in dealing wih the issue and dealing with the fact that it is previously decided in this

section that the Manitoba Government stands in violation of its constitutional obligation. HON. S. LYON: Mr. Chairman, the problem in which Mr. Maldoff becomes inextricably bound when he comes to Manitoba to tell us what a great job the government's doing with respect to a constitutional amendment that affects only Manitoba, is that he is unaware, to some extent, or fails to mention if he is aware of it, the facts and the realities of Manitoba history which were as follows: that

Section 23, between 1870 and 1890 was honoured almost totally in the breach, rather than in the observance, and while that is not something that I defend or anybody of this generation necessarily defends, it is a historic; given in the history of Manitoba, which I say with respect, Mr. Chairman, to our distinguished witness is much different from the history of the Province of Quebec. • In the Province of Quebec, as one of the Supreme Court judgments said, the use of English was taken for granted. In the Province of Manitoba the use of French, even between 1870 and 1890, was not taken for granted. So, Mr.

Chairman, that being the case, how does Mr. Maldoff interpret this amendment as being something that restores some historic right and is required? How does this quid pro quo of French Language Services come to be something upon which Canadian unity is going to founder if it now isn't passed? MR. E. MALDOFF: With respect to the point that this provision was one more honoured in the breach, I really don't believe that that change is the legal status of the matter. HON. S. LYON: But it's a historic fact. MR. E.

MALDOFF: Furthermore, as a member of the bar yourself, I understand, you would understand that words in documents are intended to have meaning, and if the provision of

Section 23 was inserted in 1870, it was for a reason and it was for the purpose of recognizing the type of society that Canadians wanted to achieve for themselves. HON. S. LYON: This is an opinion ques tion, Mr.

Chairman, but I understand that it was in May of 1980, my recollection is it was in May of 1980, that the vote on separatism was held in the Province of Quebec. lt was in 1979, of course, that the Forest case was decided by the Supreme Court. lt was in the winter of 1980, before the vote on separation took place in Quebec, that Manitoba announced the repeal of the 1890 law, and announced that it was going to move ahead with further French Language Services and so on in the Province of Quebec.

Tuesday, 6 September, 1983 How would it be that those actions taken by the Supreme Court, by the then Government of Manitoba and the Legislature of Manitoba had so little effect with your group as to, as I recall, deserve no comment before - and this was in a crisis period or in a crucial period before the vote -

whereas now, if we are to believe your brief this morning, unless these amendments concocted by the NDP and proved by the Franco­ Manitoban Society and the Government of Canada, unless they are passed immediately in the words in which they first saw the light of day, then Canadian unity is somehow going to founder? How do you explain the fact that French Language Services were being provi ded , that Mani toba was pr oceed ing on a reasonable course with respect to the reimplementation of

Section 23 and that, at least according to your group, had no measurable effect upon Canadian unity or upon the separatist vote, and yet now, unless we entrench French Language Services word for word as contained in this agreement, Canadian unity somehow or other is going to fall apart even if Manitoba is divided right down the stem on the point? MR. E.

MALDOFF: Well, going back into history once again, at the time of the Forest decision, we were supporting another case which went to the Supreme Court at the same time, and that was the Blaikie decision, which was quite similar to the Forest case, and the predecessor to Alliance Quebec did, in fact, herald the decision as an important indication that Canada was changing and coming to terms with itself. The message in the referendum once again, and largely assisted by that Supreme Court judgment, was that Canada is changing, that it is possible to move forward.

One of the issues in the referendum, in May of 1980, for Quebe cers was, are you prepared to give Canada another try for a renewed Canada. Quebecers voted yes, with concern, with apprehension, but once again they made that bet and took that chance. I would point out also that when the decision came out in 1979, in the Forest case, the reaction in certain French-speaking circles in Quebec was quite interesting.

They looked upon it with favour, but at the same time they said isn't it interesting that when the English­ speaking population is threatened in any way they get justice - Bill 101 was adopted in 1977, and the Supreme Court had disposed of this violation by 1979 - but when the French speaking rights are violated, it takes 93 years for the matter to get there. Now, that was a rather cynical view, but once again it shows the attitude that there is not a fair deal, there is not equal justice for all people in this country. We've got to overcome that view. That's why this is a matter important to Canadian unity.

That's why this is a matter important in Quebec. We're urging you not to feed the arguments within our province that would once again allow people to say, well, we've got a right, but boy what a fight we had to have and what a watered-down right at the end of the day, and is it really worth it to hang in the long haul for this fight, because we're just never going to get there, we don't really belong, we only get whatever we can tear out of people. We urge that the spirit that override this dis cussion in Manitoba be a positive one. We urge that Manitoba show that kind of leadersh ip.

We urge that Manitoba not, as I 71 think it has been doing to a certain extent, diminish its own reputation within this country, and perhaps even embarrass itself at the national level in terms of turning this issue into such a divisive politi cized matter. We ur ge that the spi rit th at prevail be posit ive and support ive.

We don't ask the people of Manitoba to adopt this because of the negative consequences which would flow from failing to do it; we're asking the people of Manitoba to do it as an active commitment to the future of this country, because what is being proposed is good, it's fair, it's just, and it makes sense. HON. S. LYON: Mr. Chairman, not an unfair questions because it's one that I put to Mr. Maldo ff when he and his colleagues were kind enough to visit with our Caucus some months ago. Gi ven the fact, Mr.

Ma ldoff, that this proposal, advanced by the current Government of Manitoba, has caused a great deal of division within the social fabric of the province and among the people of Manitoba, how much division, how much acrimony must the people of Manitoba accept in order to achieve this blissful state of Canadian unity that you say is implicit in these amendments, and indeed to help the position of the Anglo minority in the Province of Quebec? How long must we remain as a province and as a people upon the altar of sacrifice for these high flown, high blown ideals that you state so eloquently in your brief? MR. E.

MALDOFF: We are not urging the people of Manitoba to present themselves on the altar of sacrifice for the English-speaking community of Quebec or for anyone else. You mention that the proposal has caused division. As in any debate, one can get into a very long debate as to who really caused the division in this matter, and who has really precipitated the division. As you yourself have said, and as we mentioned a little earlier in our exchange, the previous Conservative Government of this province recognized that it was legitimate to provide these services.

There's nothing terribly exceptional in this, and the arguments that are being raised right now are arguments that, guaranteeing these rights, are going to affect jobs, they're going to radically alter the nature of society, but yet the previous Conservative Government was taking very simila r measures itself. HON. S. LYON: Not by way of entrenchment. MR. E. MALDOFF: Then the issue for you is entrenchment, but the issue is not whether these services will cause the dislocation that is suggested.

Therefore it's clear that the dislocation is a bogey man in this issue, and there may be concern on the part of certain people, who don't like the concept of entrenchment of rights, but that's far from the problem of the dislocation that it is hypothesized at this point. If ther e was no dis loca tion at the time of your government, there will be no dislocation into the future with the entrenchment of the very same provisions. HON. S. LYON: Mr. Chairman, can Mr.

Maldoff give us a constitutional guarantee that the courts will always interpr et these entrenched provisions of The Manitoba Act in reasonable, respectful, fair, honest, idealistic way,

Tuesday, 6 September, 1983 as he says? Can he give us that undertaking today when the Chief Legal Advisor to the Crown can't give that undertaking, nor can any other lawyer worth his salt give that kind of an undertaking with respect to what the courts, or how the courts will interpret these provisions with respect to French Language Services, which go way beyond anything contemplated by

Section 23, and represent the quid pro quo for this government negotiating, in the opinion of many of us, a bad agreement to get out of a case in which the plaintiff had an infinitesimal of succeeding. Manitoba, according to you, should accept this bad agreement because if it doesn't, somehow or other Canadian unity is going to be affected. Your argument, sir, with the greatest of respect, does not hold together. MR. E. MALDOFF: Mr. Lyon, it is you that is suggesting that this is a bad agreement.

The fact of the matter is that we support this agreement very strongly and believe that your own government - at the time you formed the government - your own actions indicate that the services that are going to be guaranteed are acceptable and reasonable services. I don't think this is a bad agreement in any way. As to the question of guaranteeing

interpretations by the court, I could be very glib and say, there are no guarantees in life and we all know that, but I'm not going to say that. What I'm going to say is that I have faith in the people of Manitoba; I have faith in the people of Canada; and I have faith that the judicia ry, who are appointed from among the members of our soci ety, will come to the appropria te decisions, at the time they are called upon to make those decisions. That is my belief in the future and the direction of this country. HON. S. LYON: Mr. Chairman, just so Mr.

Maldo ff will understand that there is no great difference between the faiths that we share, I too, have faith in the people of Manitoba and in the elected representatives of those people from time to time. Why then should this government be presuming arrogantly to put beyond the reach forever of the people of Manitoba, through their elected representatives, services in French language, which can be multiplied by court decisions over which this government will have no control?

If we commonly share this faith in the people of Manitoba, why then do we not leave the implementation of policy with respect to French Language Services in Manitoba in the hands of the people elected to make polic y, that is the elected representatives of the Legislature - not the appointed members of the court, appointed by the Federal Government into federal court positions, over whom no elected representative has any control, unless a notwithstanding clause is put into this

section as it was into the Charter of Rights? MR. E. MALDOFF: In looking to the nature of our coun try, it's somewhat less simple than merely a question of existing majorities at any given time. When I speak of faith in the people of this country and the people of this province, I speak of the faith in our ability to devise and lo have devised a political system, which is there to protect our basic values and to ensure that we can progress and move forward as a united society and a united country.

In that way we have established 72 various provisions; we have established constitutional provisions; we have established constitutional customs, which have been tested all the way up to the Supreme Court of Canada, and all of these guidelines that govern our conduct with each other. I have faith in our ability to continue to have a system which can do that and respond to people's needs. There is always concern about momentary majorities; there is always concern about people perhaps moving in that direction from time to time, but as Canadians, we've shown we ultimately come back to the right direction.

That's the essence of it. In our court system itself, we have the principle of several levels of decision­ making by the courts, in order to ensure that we're not dealing with one man's arbitrary opinion, but a system that ensures that all views are expressed and understood. Certainly I would point out that the need to put certain matters of fundamental belief beyond the touch of momentary majorities can be explained or justified in no better way than what has happened in the past in this country, and indicating how important it is, and confirming how important it is, to give that security.

I Canada is moving in a very positive direction. We look to things like the progress in the Province of Manitoba, even before the proposed amendment. We look to the national Conservative leadership convention, where we saw - in the election of Brian Mulroney as leader - that the issue of recognition of both languages as being a central issue for a national leader in this country. I think there are lots of indications that Canada is moving in that direction. We see the growth of French Language Immersion Program ming. I believe that perhaps some of your childr en may even be participating in that.

We see a recog nition that this is important and all we're asking at this point is that we, in our Constitution, recognize the same values that we, as individuals, hold so strongly. HON. S. LYON: Mr. Chairman, if, however, by putting these matters in the Constitution, to use your term Mr.

Maldoff, "enshrining them in the Constitution," we are thereby doing potential harm to the progress that was already being made in the provision of French Language Services, to the great progress that was made in Manitoba without any constitutional amendment to French Language education, by various governments in this province, going back to the 1960's in particu lar, if, by enshrining these matters now in the Constitution you are going to do potential harm to the measurable progress that has been made in French Language education, French Language Services, why in heaven's name, would any government or any group such as yours, want to cause that potential of harm, that potential of division - it's not a potential of division, it's existing division - within the province?

Why not leave the situation as it is, without benefit of a constitutional amendment at · all, and let Manitobans continue to live in peace and amit�� without this new extraneous condition being imposed upon them? MR. E. MALDOFF: First of all, I think it's very important for me to re-assert the role of Allia nce Quebec before this committee today. We are not the cause of action in the Province of Manitoba. We are here as witnesses

Tuesday, 6 September, 1983 before your commission to give our assessment of the situation and to bring whatever information may help this committee and the people of Manitoba in their deliberation. In terms of entrenchment, as you suggest doing potential harm, I fail to see in any way how that can do potential harm, when in fact this process was under way before the proposal even came forward. The ideas tha t are being put forward are sound and va lid, accepted and respected by the citizens.

If polit ical leaders and opinion leaders in this province explain that to the population, that there's nothing terribly radical that's happening in terms of the actual relationships between people and society, then I don't think we will see any harm, and perhaps whatever public emotionalism that has arisen so far, can be quelled with reasoned and dispassionate explanations that this is for the benefit, this will not be harmful, that both sides of the House have agreed that these are valid measures to be taken.

In terms of the actual provision of services, there has not been the harm in the past and there ought not to be any reason for harm in the future. HON. S. LYON: But Mr. Maldo ff, you've said on three different occasions that you can't give any guarantee, anymore than I can, as to how the courts are going to interpr et this provision once it is chiseled in stone and put into the Constitution - "enshrined" to use your provision.

If you can't give that guarantee, if I can't give that guarantee, if it's being removed from the hands of the elected representatives of the Legislature for all time, then how can you go about pacifying the intuitive and I think legitimate fears of the people of Manitoba, unless you want to be some form of modern-day medicine man who's telling mumbo jumbo to the public which isn't true? MR. E.

MALDOFF: The question of what one can guarantee to the people of Manitoba or to the people of Canada is always a difficult question but, even when you were Premier of this province, there was a respect for our jud iciary and for their ability to make decisions which are reasonable and just in the circumstances. If the challenge was so great, if the fear of an irrational jud iciary was so great, then I am absolutely shocked that we have not in the entire his tory of our Confederation seen a significant movement of political leaders to abolish our courts as being dangerous and a threat to our society.

We have abided in the fact that these courts can make reasonable decisions even with respect to the exercise of powers by provincial legislatures, by interpreting the powers of those leg isla tu res vis-a-vis the power of the Federal Government as entrenched in

Section 91 of the BNA Act. This is a process we all respect, we all accept and our basic values in this society are that we can trust our courts. Until there is evidence that we can't, I'm prepared to continue to trust them. HON. S. LYON: Well, that being the case then, Mr. Maldo ff, would it not be advisable in your opinion to scrap these amendments, and because you have no fear of the court making any irrational decision, let the Bilodeau case go to trial and let the court make its 73 determination upon the Bilodeau case and end the division in Manitoba? MR. E.

MALDOFF: If the suggestion is that one would rather have Manitoba live with an 1870 solution than a 1983 solution, I think that that's the prerogative of the people. HON. S. LYON: The suggestion is the courts will not be irrational. That's your word. MR. CHAIRMAN: Please proceed, Mr. Maldoff. MR. E. MALDOFF: Of course the courts will not be irrational and I'm not in any way suggesting that they will.

What I am suggesting is that the 1870 arrangement in the context of 1983 could be upd ated to reflect modern-da y real ities and that th at would be an appropria te measure for a government and the people of Manitoba to recognize. I don't think that any citizen of Manitoba would rather solve a problem by imposing 1870 solutions. HON. S. LYON: Mr. Chairman, I have no further questions at this time for Mr. Mald off. I wish to thank him and his organization for coming to speak to us this morning and earlier coming to visit with members of the government caucus and our caucus. We appreciate their interest.

Even though our views may not coincide, we appreciate that they are speaking out on behalf of Canadian unity as they see it, as, indeed, Manitobans are speaking out on behalf of Canadian unity as they see it here, both in good will and with the best interests of the country at heart. MR. CHAIRMAN: Thank you, Mr. Lyon. Mr. Penner. HON. R. PENNER: Mr. Maldoff, in one of the premises to a question, Mr. Lyon referred to the decision of the Supreme Court in Forest and went on to say that subsequently a government of which he was the head moved to deal with, in a positive way, the obligations posed by

Section 23. I now have that statute in front of me. it's called

an act respecting the operation of

Section 23 of The Manitoba Act in regard to statutes. I first point out to you, Sir, that it, in

Section 1, says, in this act: official language means the English language or the French language. So, we have a statement by the previous government that as far as

Section 23 is concerned, official language is the English language and the French language. I'd just draw that to your attention. I now ask you whether, in your view,

an act - and I have that act in front of me - which states that, if the bill for the act was printed in one language, at the time that it was distributed, then that - and I'll read the

section - for greater certainty in

interpretation of statutes of the province here to enact it, that bills for all acts hereto enacted shall be conclusively deemed to have been printed in the English language when copies thereof were first distributed to members of the Assembly. Then it says in an earlier

section that in that case, in case of a conflict, the English language shall prevail. Do you deem that to be fulfilling the spirit of The Manitoba Act of 1870?

Tuesday, 6 September, 1983 MR. E. MALDOFF: There is a similar provision in, I believe it's, The Interpr etation Act of the Province of Quebec, which most members of the legal profession routinely disregard as not reflecting the spirit of

Section 133 of The BNA Act. The widely-held view is that the spirit of 133 and consequently the spirit of 23 of The Manitoba Act was to put both those languages on equal footing and that su bsequent mere legis lative enactments which purport to put one on a stronger footing or a more important footing derogate from that spirit and therefore in all likelihood would not be upheld by the court. HON. R. PENNER: My second and final question relates to a further premise of Mr. Lyon when he talked about entrenchment, enshrining, he used the words "chiseled in stone for all time." Is it not the case that pursuant to

Section 43 of The Constitution Act, 1982, a cons titutiona l amend ment , which deals with the language issue affecting one province, only requires the vote of the Legisla tur e and of the Ho use of Commons? And if there would, let us say, unhappily for Manitoba, be a Conservative Government replacing this one and a Conservative Government in Ottawa, I make no value judgment on that, then presumably they would see eye to eye on the notions of the former Premier of this province that it shouldn't be all that difficult to change the Constitution, would you not agree? MR. E.

MALDOFF: With all due respect, I find that when one gets to the point of trying to speculate on how easy or di fficult it would be to change the Constitution, one is in a realm that's beyond the competence of this witness.

I think that the spirit of the amending formula was one which would ensure that there would be checks and balances in the system of constitutional amendment to avoid fundamental provisions being change d by capricious will of temporary majorities as to how difficult or easy it would be to actually produce a change or an amendment when there was merely a province and the federal government that were involved, I think that would depend in large part on the extent to which they were seeing eye to eye. HON. R.

PENNER: In any event you would agree, would you not, that it is much easier to change that kind of constitutional provision than one which requires the concurrence of seven Legislatures covering 51 percent of the population? MR. E. MALDOFF: Absolutely. There is no doubt that the intention was that on a matter that was specific to one province, such as the 6ne you've mentioned, that there was to be an amending formula which would be less onerous than the amending formula requiring the app roval of seven provinces and special majorities. HON. R. PENNER: Those are my questions and I, too, would like to thank Mr.

Maldoff and the Alliance. I agree to this extent with the remarks of the Leader of the Opp osition tha t I think th ey are, as they see it, performing a formidable task in terms of Canadian unity to which I think we all aspire. 74 MR. CHAIRMAN: Thank you, Mr. Penner. Mr. Sherman. MR. L. SHERMAN: Thank you, Mr. Chairman. Through you to Mr. Maldoff, Mr.

Maldoff, I have some difficulty with the appr oach that the All iance takes to the Canadian Federal constitutional system, particularly insofar as it is reflected in the Allia nce brief, and I have a question or two that, as it turns out follows upon one or two of the questions asked by Mr. Penner, but they were not intended as follow-up questions to his. On Page 6 of the brief, Mr. Maldoff, the Alliance cites the belief that, "democracy in Canada means no more than the rule of the majority of the people through the legislative majority of the moment." lt says that this "is a simplistic belief.

" I would infer from that that the Alli ance means, it is a superficial belief and it is an inaccurate belief. I would share that position. I think that is a point well taken. But on Page 7, the Alliance then goes on to propose that, "In the Canadian federal constitutional system, the will of the majority does not and should not necessarily prevail when it is merely the formal will of a mathematical majority." My question, Mr. Chairman, through you to Mr.

Maldoff, is whether the Alliance is saying or suggesting at this juncture that it is opposed to the amending process that currently obtains where the Canadian Constitution is concerned. In other words, given the history of the search for a patriated Constitution in Canada, which turned so fundamentally on the whole issue and the whole question of the amending formula and the amending machinery, how does the Alliance support that kind of statement on Page 7?

How does that statement jibe with the historical journey towards a patriated Canadian Constitution with the kind of amending formula that is in existence at the present time? MR. E. MALDOFF: I don't think that this is the time to enter into a discussion of an amending formula which was agreed to by nine provincial Premiers and the Prime Minister of Canada. That is an issue which is behind us and can be raised at some other time. In terms of the issue of how one reconciles or understands the concept of the unbridled will of the majority with any amending formula, I see very little difficulty in the notion.

The amending formula is a procedure which has been established to ensure that we are not dealing with a mathematical or the capricious will of a majority that necessarily exists at any time.

We are dealing in the amending formula with a Federal Government, duly elected, and the governments of 10 provinces, duly elected, representing their constituents in turn who have to, in some way, agree that the proposed amendment is one which is in the interests of this country. lt is not merely a question of one province and the mathematical majority of that province saying, we wish to change the Constitution of Canada as follows in one way or another.

We have put in a series of checks and balances that ensure that something beyond a mere 50 percent majority is required to change provisions touching on the fundamental values of Canadian society. I think it's easy to reconcile. Ultimately, change has to occur by some decision-making process. Even if one •

Tuesday, 6 September, 1983 argues that it's unanimity, it is still mathematical, that's 100 percent. The point is, we have deviated and derogated from the ordin ary rule where a simple bare majority can change or legislate, to say that it takes a very special procedure and an agreement of a wide range of people before something can change. MR. L. SHERMAN: Mr. Maldoff, I app reciate that answer, and I find it expansive and educative in terms of the Alliance brief, because there certainly is no reference to the term "simple" or the appl ication of the term "simple" in the point that the Alliance makes on this subject in that

section of the brief. If the Alliance is saying that what is necessary here is more than the formal will of a very simple mathematical majority, then that alters the argument. But certainly no one can argue that the federal constitutional system is Canada does not respect the formal will of a mathematical majority, because it is based entirely and almost exclusively on that kind of parameter. If you are talking about a very simple majority, 50. 1 percent as against 49.9 percent, then I take the Alliance's point a little more clear ly. Thank you. Mr.

Maldoff, one other question, given the position that the All iance takes with respect to the constitutional system and responsible and honourable democratic decision-making, are you saying that if a substantial mathematical majority of Manitobans demo nstrated their opposition to the proposed resolution of this government that the All iance would take the position that was unacceptable and unconstitutional? In other words, no one knows at this juncture what the position of Manitobans is going to be vis-a-vis this proposed resolution, at least certainly not in a formal sense.

That is the whole raison d'e tre for th ese meetings. We want to hear from the people of Manitoba. In the historic traditions of the province, I expect that everyone around this table is prepared to react and respond properly to the expressed will of Manitobans, but I wonder whether the Alliance is suggesting that kind of intiative by this committee should be precluded because of its views with respect to th e federal constitutional system and the process of democratic change.

Are you saying that if a majority of Manitobans demons tr ated th eir opposition to this prop osed resolution, the government should proceed anyway? MR. E. MALDOFF: lt would seem that the question which has been asked is leading in the direction of apparently certain thoughts that have been mentioned from time to time here in Manitoba about the possibility of a plebis cite or popular referendum on minority language rights.

Speaking as a member of the English­ speaking community of Quebec; speaking as an English­ speaking Canadian; speaking as a person who is numerically in the minority in the province in which I live, I find the thought of a refer endum or plebis cite on minorit y rights, whiche ver minority, absolutely appalling. I find it almost unbeli evable that proposal would be considered in a serious vein.

The concept of protecting minority rights is the act of elected leaders looking to the best interest of their society as a whole, not just the majority which elected them at any given time, but all the citizens of that society 75 to ensure that we have a good, viable and socially just society.

I can't think of many means that would be more divisive and really a serious threat to the whole concept of respect for the minority than constantly saying, well this is too hot an issue for me to really make a judgment call on about how I want to see my society go, so let's throw this thing to the lions - excuse the - that's with an "i" - and let's put this out in the public domain and have a public debate about how we feel about our minority this day. We, in Quebec, have had a lot of experience, perhaps more than other Canadians, with the concept of a referendum. We know what that can do to a society.

We know what can happen with the referendum when it's politically manipulated, and they can be very easily. If one recalls the referendum question in the 1980 Quebec ref erendum on independence, the question which was supposed to deal with, do you favour inde pendence, yes or no, turned out to be a question that had about a 130-word

preamble explaining the political position of the government of the Province of Quebec, and followed by a perfectly obscure question which the government was hoping it would be able to interpr et in whatever manner it wanted. I really would urge you as members of the Legislature of Manitoba not to follow down that course, and to demonstrate the leadership for which you were elected and to take on the responsibili ty for which you were elected. MR. L. SHERMAN: Mr. Chairman, through you to Mr. Maldoff, I want to assure the delegation that I was not suggesting a plebiscite or a referendum be held on this question.

I'm sorry if that was the inference drawn from my qu estions. I would like to cor rect that impresson for the record. Nor do I think any of my colleagues have suggested at any time that a plebis cite or a referendum in the conventional sense should be held on this question. We have argued that it is the kind of question that certainly could deservedly be put to the people of any jurisdiction in an election. lt could be incorporated as part of a platform that a party was taking to the people at election time, but we have never suggested and I cert ainly have not sugge sted a pl ebiscite or a referendum. Mr.

Maldo ff, you have made reference to the public arena. That is precisely where the proposal now sits. I, for one, am content with the fact that it has been injected into the public arena where it did not sit, I might say, four months ago when it was first introduced to us in the Legislature of Manitoba. So my question to you, Sir, on this point is, whether the Alliance would not agree that the response from Man itobans that will be for thcoming pre sumably through this exercise now under way in this public arena is one that should be respected notwithstanding the Alliance's view on constitutional change. MR. E.

MALDOFF: I think the process of holding a public commission is a process of inviting people to make submissions, to bring forward their opinions for consideration by duly elected legislators so that the legislators can make an informed decision as to the direction they should go. I don't think it is a mere

Tuesday, 6 September, 1983 question of tallying up how many briefs come in yes and how many briefs come in no, or whether the yes side got up and tore off their clothes and got very emotional and the no side stayed very calm and dispassionate. I think the issue is a process allowing the public to have input into decision-making by people who are elected to make decisions, and allowing those decision­ makers to get a sense of some of the views and perhaps bring to legislators' attention oversights, things that haven't been considered.

We know the enormous workload that all of you gentlemen carry, and the process is one to allow the public to perhaps bring forward ideas that may have been overlooked in the ordinary course of doing any work of this nature. So the process of consultation is laudable and responsible. I think one should be listening very carefully to that consultation, especially for new matters that hadn't been considered before and new information. In that sense, yes, I think that this process is an important process.

In terms of how you as elected officials ultimately deal with the information brought to you, that's what you gentlemen were elected for. and it was to exercise a judgment, not to just add up numbers or rate things on an applause meter. MR. L. SHERMAN: In conclusion, Mr. Chairman, to help me, Mr.

Maldoff, just to understand precisely where the Alliance stands on this question, is it safe to assume that the position of the Alliance is that these public hearings are all very well and good, but they should really constitute no more than a rhetorical exercise; and that regardless of what Manitobans say to this committee during these hearings, the government should proceed with its pro posed cons titutio nal amendment? MR. E. MALDOFF: We are the first group appearing before you in this process of hearings, so it's hard to speculate on what may come forward.

In the exercise of public hearings, and we have appeared before others in our pr ovi nce and in Otta wa at the Federal Government, I don't think that this should be treated as a rhetorical exercise. I think that would be really a manipulation of the public, a ploy of democracy that really isn't intended to be a substantive act by the government.

But this is a process of consultation that we're going through, and I think that the role of elected decision-makers is to receive this input and see, not what necessarily the will of the majority of deponents may be before this committee, but to carefully analyze what people are bringing forward to see if there is something which has not been considered before, which is of merit, which would improve this matter, which would help the government come to an even more just solution.

The issue is not whether this is good for election or re-election, and let's get a - this is not an opinion poll that is being conducted here. This is a request by the Government of Manitoba for people to come forward and present thoughtful, reasoned positions to help the government understand a proposal or deal with a proposal which is put forward to the people. I think it must be understood in that light. 76 MR. CHAIRMAN: Further questions, Mr. Sherman? MR. L. SHERMAN: No, Mr. Chairman. I would like to thank Mr. Ma ldoff for his pres entation and his willingn ess to deal with the questions I've put to him.

Thank you. MR. CHAIRMAN: Mr. Doern. MR. R. DOERN: Mr. Maldo ff said that he deplored referendums. I want to ask him whether he deplores the democratic process or whether he deplores the electoral process which, in a way, is a referendum on the government? MR. E. MALDOFF: This morning has been a very interesting exercise for myself. As a lawyer, I have appeared in court on occasion but, being on the other end of this, the cross-examining lawyers keep changing.

Through the course of this, I have heard arguments that Parliament is supreme or more or less supreme and now arguments that perhaps the people are supreme and Parliament isn't supreme. I think we have to understand what process we use in Canada to make decisions. We have recognized decision-making bodies. We have courts. We have trust in both of those structures working together to produce the kind of society we want to have.

The concept of a referendum or a plebiscite being used as a decision-making process is to usurp the role of all those levels of decision-making that we, as Canadians, have agreed upon. it may be appealing at the moment for political and partisan reasons, to call to the people and say, don't you want to have a say on this issue? But there are ways that we have agreed upon, as Canadians, through which the public does have a say on issues and that is informed discourse before bodies such as this and debate before the House by elected members.

We strongly support the values of our Canadian society and the approach we've had. lt was of great concern to us when in Quebec, the government of our province chose, instead of saying we will stake our mandate on independence, oh no, we won't stake our mandate on independence, what we will do is create a referendum, which really doesn't have any effect on what this government believes in, it's just another chance for the government to find out whether most people agree with the polit ical party that formed the government. That was a usurpation of the democratic process in our view.

A democratic process is more than just majorities from time to time. lt is a process of making decisions which respect the will of the majority, and the rights and the need to protect the minority, and we have an entire system that we have set up in order to do so. When we approach issues, we should always be thinking of improving that system and not moving back to forms of democracy which didn't work in the past and can lead to results which no Canadian would want to have. MR. R. DOERN: Mr. Maldoff, you obviously were uneasy and feared the referendum in Quebec, but yet you won it, so what is your concern here?

MR. E. MALDOFF: I don't know if the honourable member was in Quebec during that period. it's an

Tuesday, 6 September, 1983 experience I wouldn't like to live through again as a Canadian, or as a Quebecer. lt was divisive; it was emotional; it was often irrational. We were subjected to demagoguery and manipulation. We experienced all the things we hoped in Canada that we would not experience. Yes, we won it because we were right, but the point is, that is not the decision-making process that we, as Canadians, should foll ow. If a government has its views, it puts its policies and its platform forward and it stands on that policy and platform.

We were not afraid of the referendum so much for the outcome, as we were afraid of the referendum for what it does to a society, dividing brother from brother, dividing parents and children, dividing a society in so many ways, family to family. We just do not think that's the type of emotionalism and divi siveness which responsible leaders would want to impose on their citizens.

I think we all have responsibility to spare the citizens of this country that kind of an experience and to respect forms of decision-making which allow for all parties to recognize consensus and move forward together, after a decision is made. MR. R. DOERN: So in your judgment elections are fine; elections are rational; elections are non-divisive. But referendums are not fine; they are not rational; and they are divisive? MR. E. MALDOFF: Elections are not singl e-issue matters. Elections are questions when a series of measures are put forward to the population.

Yes, there are times when population does have to make a decision and that's the ultimate way we ensure that our rights, as citizens, are protected or going to be advanced. But the fact of the matter is, there is an entire difference between an election campaign, where one is judging the quality of the candidate, where one is judging the platform that he stands for, on so many different :ssues and putting a single issue to the people. This is not a hypothetical debate. We're not debating a municipal by-law on whether we should change the zoning of a certain area.

What we're talking about are some pretty basic values here and the question one has to ask is, does one say to Canadians, well how do we feel about French­ speaking Canadians this week? Well I don't think that's the approach. I wouldn't like to see that approach taken in Quebec. In the early days before the referendum, the Government of Quebec did attempt to do that by trying to, in some way, say that the English-speaking population weren't really Quebecers, that we really didn't belong there, that we are Canadian interlopers, that we were the cause of so much of the damage.

Certainly there was an attempt in the early stages - which our community handled with great responsibility and dignity by showing restraint - but there was an attempt to set our community as one of the issues in the Quebec referendum. Does Quebec belong to all Quebecers, or does it belong just to French-speaking Quebecers? Who does the state function for? My friends, I really would never like to live that again and I wouldn't want to thrust that on any group in our society, be they French-speaking Canadians, English-speaking Canadians, or any ethnic group or other group that exists within our society. 77 MR. R.

DOERN: Mr. Chairman, if the P.Q. Government of Rene Levesque put a plank in its platform in the next election calling for separation, you would say that because it's in an electiofl campaign it would be fine and rational and non-divisive? MR. E. MAlDOFF: I think, at that point, people assess whether they want to live for four years or five years, as is currently guaranteed, with this government. I think that the question would be put to people, as to whether they want to have this as their government.

Yes, it would be divisive but at that point people are being asked to choose a government based on that option and many others. Because they not only have to ask the question, do you favour independence, yes or no, but at that point it is incumbent on those who propose the option, to elabor ate the entire nature of the society they propose, as an independent Quebec society.

How are we going to deal with the debts that Canada has, and how are we going to divide up the assets that Canada has, and how are we going to deal with minority rights in this new independent Quebec that would be proposed in such a hypothetical situation, and how would we deal with a government, and how would we deal with the issue of sovereignty and international trade, and who are our allies going to be, what sphere of influence are we going to be, and how we going to defend ourselves, what sort of Navy are we going to have?

All those issues would have to come forward at the same time and I'm qu ite prepared to see a government come forward with an entire proposal that doesn't just say - in your wildest dreams how would you feel about being independent - but says, this is what indep endence means, do you like that? At that point that's a responsible way to proceed with the debate. MR. R. DOERN: So to sum up here, you're saying that some elections are divisive and most referendums are? Is that what you're saying? MR. E. MALDOFF: I don't claim to be an expert on all referendums held throughout the world, throughout our history.

I can only speak, based on the experience we had in the Province of Quebec, and speak on a very profound conviction that questions of basic values of Canadian society, like treatment of our minorities, is not the appropria te su bject matter or plebiscites or referenda. MR. R. DOERN: Your delegation has come here a number of times. They're obviously well financed. They have some pretty expensive literature that is being passed around. Could you inform us as to what your annual budget is and what your sources of funding are? MR. E.

MALDOFF: I don't have our financial statements with us, but I will be glad to give you - as long as you don't hold me to the last dollar on it - a rough breakdown. Alliance Quebec was formed as a result of many organ izat ions in the Englis h-spe aking community coming together and recognizing that if we were to have a future in our province and a future in Canada, we have to create an effective vehicle through

Tuesday, 6 September, 1983 which our community could articulate its vision of Canada, our vision of the future. The organization is democratic in the sense that our leadership is elected, our pol icy is voted upon at an annual convention.

We have 22 regional organizations around the province working on such issues as being able to get adequate health services, social services, government service in our language, getting our fair share of government resources allotted to us for cultural activities, for example, dealing with problems like the prohibition agains t bilingual signs and problems that were experienc ed with things lik e franci zation and overzealous bureaucrats, who are attem pting to define their own political priorities within the Province of Quebec.

So we have 22 regional organizations or chapters around the province that are actively involved, each with their own board of directors with at least a dozen people and hundr eds of members. As I said, we have over 40,000 members. In terms of the annual budget of the Alliance, and I would point out before coming to this that I believe, and please correct me if I'm wrong, the population of this province stands at approximately 1.2 million people. A MEMBER: One million. MR. E. MALDOFF: One million?

Well the English­ speaking population of the Province of Quebec, which is up against a government which has been dedi cated to undermining us for quite a few years now, numbers one million people, and we have to service that entire community in the face of a government that only gives us service to the extent that we can drag it out of it.

Our budget in the past year was $900,000 of which we received approxi mately 60 percent through the Official Language Minority Program of the Secretary of State of the Federal Government of which we received almost all of the rest by private contributions which we raised in a fund-r aising campaign across our province to finance the operations of our community.

Our organization was established in January of 1982, and we have aimed to move to at least matching funding from our commu nit y on the principle tha t our organization and our community must be independent and compl etely in depen dent in every way from government. We have in one year made a very substantial stride in that direction, having raised in excess of $400,000 this time around. In addition to that, we have received funding to a fairly limited extent, but to the extent that the Government of Quebec was embarrassed into giving it to us from the Government of Quebec. MR. R.

DOERN: So, you receive approxi mately $540,000 a year from the Federal Government? MR. E. MALDOFF: Well, the amounts are changing as the years go on but, in the past year, it was roughly in that area. MR. R. DOERN: Do you have regular contact with the Secretary of State or the Federal Government in regard to your policies or programs or personnel? MR. E. MALDOFF: Absolutely not. No. In no way, absolutely not. I think the inference really would be of 78 concern to all of us who have been elected by our community to serve our community. We have contact with every level of government on a regular basis.

We have more contact with the Parti Que becois Government of the Province of Quebec than we have with the Federal Government and in terms of our policies as I told you, they originate from resolutions put forward by our regional organizations and are voted upon at an annual convention, the last of which took place in early June of this year. lt' s at that point that our policy is adopted. MR. R. DOERN: How large is your full-time staff? MR. E. MALDOFF: We have a full-time staff of approximately 25 people. MR. R. DOERN: And your membership is 40,000, is that what you indicated? MR. E.

MALDOFF: Roughly, in addition to that, we have institutional member organizations which include all of our school boards, all of our hospitals, and there are over 13 of them, most of our junior colleges, most of our social service organizations, several of the theatre companies servicing our communit y, most of our universities and almost every other institution and association that services our community.

The experience we have had in the Province of Quebec is that the Government of Quebec has tried to explain to the population that the English-speaking population of the province is a threat to the French-speaking population.

We have experienced initiatives by the government on every front to weaken our community, be they in the area of allocation of resources to universities, be they in the area of the francization and excessive language req uirements being imposed on English language hospitals, social services and educational institutions, be they in the area of commerce and business, be they in the area of culture. Therefore, we have found that we have to respond as a community on every front that affects the quality of our lives in our province.

The government has not missed a chance. lt has gone so far as to legislate recently in the area of films and the availability of films in the Province of Quebec, now perceiving that the unrestricted access of a non-French language film in the Province of Quebec was also a threat to the future of our province. So, let us not underestimate what our community is up against and the fact that we have the resources at our disposal barely covers the challenges that we have to address. MR. R. DOERN: How many trips have you made to Manitoba so far? MR. E. MALDOFF: Two. This is the second trip. MR. R.

DOERN: And you ind icated you are prepared to come a third time or more? MR. E. MALDOFF: Well there are some things in life which are important and this is one of them. MR. R. DOERN: Will you be visiting Manitoba to campaign during the next provincial election? � I

Tuesday, 6 September, 1983 MR. E. MALDOFF: We do not get involved in partisan political issues. We are concerned about promoting better understanding between French-speak ing and English-speaking Quebecers. We are concerned about a Canada in which French-spe aking and English­ speaking Canadians can live together. We are concerned about seeing a Canada in which both lang uage communities put the language debate behind us so we can get on with talking about much more important issues, rather than dwelling on this in some interminable way. MR. R.

DOERN: Are you planning to travel to Saskatchewan and Alb erta to advise or support any measures, or encourage any measures, to have those provinces become officially bilingual? MR. CHAIRMAN: Order pl ease. I fail to see the relevance of that question to the matter before this committee. Mr. Doern, can you explain the relevance. MR. R. DOERN: Mr.

Chairman, this is a group that is coming from Quebec to give us the benefit of their experience and advice and they have passed out a set of press clippings in their handout, one of which I'm familiar with from the Globe and Mail, Tuesday, July 5th, Manitoba's way could be a model for achieving bilingu alism , from a professor of law at Ottawa University and I'm quite familiar with the article.

The professor argues that the formula may be repeatable in Saskatchewan and Alberta and then after Manitoba becomes bili ngual and Saskatchewan and Alberta become bilingual, then there'll be a big hole and that'll be called Ontario. Then Ontario should become bilingual. So there is sort of a domino effect here: first New Brunswick, then Manitoba, then Alberta, then Saskatchewan, then Ontario. I want to know whether or not in anticipation of this, you are, in fact, in contact with people in these other provinces and, if any measures are taken, whether you will go across Canada and campaign coast to coast? MR.

CHAIRMAN: Mr. Doern, I still have reservations about the relevance of the question. I'm at the will of the committee, but I'm inclined at this point to rule the question out of order. MR. R. DOERN: Well, Mr. Chairman, I simply put this question to Mr. Maldoff. He is prepared to visit Manitoba in regard to the language issue, is he prepared to go to other provi nces and assist them as well? MR. E. MALDOFF: I'll be glad to answer that question if it will be of assistance to the committee in getting on with its deli berations.

We do not believe that the same solutions are appropria te or applicable in every situation in Canada. Each society, each province has its differences, has its history, has its distinctiveness. Solutions should not be imposed from some ideological lofty height, but rather should be constructed by reasonable people to respond to the problems that exist at any given time. We are committed to certain principl es which I've mentioned before, and that is the achievement of a Canada in which French-speak ing and an English-speaking people can feel at home, feel 79 secure, and live with dignity and mutual respect.

To the extent that we see, as a result of developments in any province, the need to come and support initiatives taken by the people of t�at province, not initiated by us, we are prepared to come and assist people who stand for what we consider to be good and right and positive. MR. CHAIRMAN: Further questions, Mr. Doern? MR. R. DOERN: Yes, Mr. Chairman. Can you indicate the approximate population in Quebec of people of German and Ukrainian decent? MR. E. MALDOFF: I don't have the census statistics with me, and I really couldn't answer that question offhand.

In the Province of Quebec that has not been an overriding concern, and it's therefore not a statistic which is popularly publ ished and appears regularly in our newspapers, or in other material. Perhaps you might have it. MR. R. DOERN: I do. Mr. Chairman, according to my information from 1981 the German-speaking or German descent population in Quebec is about 33,000, and Ukrainian is 14,000, but in terms of Manitoba these are much larger groups of 100,000 and then some. I'm just asking you whether you think there is any relevance whatsoever to the size of a particular group in relation to the government.

For example, it's quite clear that in New Brunswick there is a sizable French­ Canadian population and bilingualism probably makes a great deal of sense at the provincial level. In Qu ebec, if you want to jus t take langu age breakdowns, and you want to break it into French­ speaking and English-speaking, the English-speaking minority is the largest and significant in numbers.

In Manitoba, the second largest group after the English­ speaking, namely in terms of background etc., is the German community which is some 12.5 percent; the Ukrainian is some 11.6 or greater percent; and the French-speaking is about 8 percent. I'm just saying to you, do you think there's any relevance in terms of numbers? For example, would you be arguing this if there was 1 percent of Manitoba's population that was French-Canadian, or if there was one person living in Mani toba who was French­ Canadian, would you still say that this is im portant?

Would you say that numbers are unimportant, that size of population is not a consideration? MR. E. MALDOFF: After hearing that kind of an analysis, the Canadian mosaic, having met the Premier of the Province of Quebec on several occasions, I would be more than happy to introduce you to him because you share a very similar appreciation of Canada and a very similar understanding of the country. MR. R. DOERN: You and Mr. Trudeau, share a similar view as well. MR. CHAIRMAN: Order ple ase.

Earlier in response to a question I heard interjections from the Gal lery, they are not permitted, I would ask that they not be repeated.

Tuesday, 6 September, 1983 Mr. Doern, will you allow Mr. Maldo ff to complete his answer? MR. R. DOERN: I will, but I won't suffer any insults from him either. MR. CHAIRMAN: Order please. Mr. Maldoff. MR. E. MALDOFF: Premier Levesque is a highly esteemed Premie r of our province. I can hardly understand why that wou