Manitoba Committee Hansard — 17 November 1980 (Statutory Regulations and Orders Committee, Sitting 2, 31st Legislature, 5th Session)

31-5-sro2

Manitoba — Debates (Hansard)

LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON STATUTORY REGULATIONS AND ORDERS Monday, 17 November, 1980 Time - 10:00 a.m. CHAIRMAN - Warren Steen (Crescentwood) CONSTITUTIONAL REFORM MR. CHAIRMAN: Committee come to order please. We have a quorum and as members of the committee, I think they've been supplied with the lists of persons who have ind icated thr ough the Clerk 's office a desir e to appear befo re this committee. We have a few persons from outside of the City of Winn ipeg that have asked that they be permitted to appear before the committee today.

We have two persons who can only appear this morning - Dr. Doyle from Ste. Anne, a medical doctor, and Sidney Green, ML A, who is leaving for Ottawa at noon today. We have two others persons who have indicated that they can only appear today but they don't specify a.m. versus p.m. Perhaps before we hear any of the seven persons who have indi cated that today is the only day they can appear before the commit tee, maybe Mr . Mercier would like to make a statement or a comment. HON. GE RALD W.J. MERCIER (O sborne): Mr.

Chairman, on a procedural matter, you received and I received a copy of a letter on behalf of the Societe Franco-Manitobaine with respect to their brief and a request that simultaneous translation service be available for them to make their representations to the committee. I had indi cated last week in response to some questions from the media that we were attempting to provide a simultaneous translation service for the constitutional reference to be heard in the Court of Appeal within the next few weeks. My advice now is that will not be necessary for that court case, and if the committee is agreeable, Mr.

Chairman, on an experimental basis and without setting any particular precedent for any future meetings of the committee or the House, I would suggest to the committee that we would do our best to provide a simultaneous translation service for the Societe Franco Manitobaine tomorrow, I think, when they are to present their brief. If tha t is ag reeable to the committee, Mr. Chairman, we will attempt to have that available for tomorrow. We have to confirm that the translators will be available, but we will do our best to provide that service. MR. CHAIRMAN: Mr. Desjardins. MR. LAURENT L. DESJARDINS (St.

Boniface): Mr. Chairman, I would agree with this in principle, but I think that there could be some form of amendment. I wonder if while you have got the translators here if there are any others that wish to avail themself of the same service. I see some names on today - and with the understanding that it would be done only on 21 the one day though, that you would move them to tomorrow.

I see George Forest, I don't know, I think I got a copy from him that he had requested the same thing - copy of a letter to you, and I would suggest that we ask these people and try to group them together with the understanding that they would have to be here the same day to save on the cost, not have the translators here for two days straight. MR. CHAIRMAN: Mr. Desjardins and to members of the committee, would you accept my suggestion that at 10:00 a.m. tomorrow morning we hear Mr.

Forest first and others who wish to have their presentat ion in French, we hear them and complete those persons first tomorrow and then go back to our regular schedule? MR. MERCIER: Mr. Chairman, we will do our best to have them available for tomorrow. I expect to have that confirmed some time this morning as to whether or not they'll be available. If they're not, we may have to set another date to hear them when the service is available, but we'll know later this morning. MR. DESJARDINS: With that underst anding, and trying to co-operate, Mr.

Chairman, that we put it up to the other people on this list that might want to, if this service is available, that might want to take advantage of it, but with the understanding that they would have to be going on the same day, if they're available. MR. CHAIRMAN: All right. To the members of the committee, is it agreeable that we try and hear the persons who have made special requests first and then go on to others? As all of you are aware, we have a very lengthy list of persons who wish to make representation and we, as a committee, did not set any guidelines or rules as to time limits.

I would ask ?11 persons making representation to be aware of others and extend the courtesy to others that they do wish to make presentations, and ask members of the committee to be aware of the fact that it is a lengthy list when it comes to quest ioning, etc. The two persons, I indi cated earlier, that wish to speak this morning and were only available, and I've had a third one indicate to me, Mr. Vaughan Baird, that he's only available this morning and that is why he is present. Could we take them in the order that they're printed -Dr. F. P. Doyle of Ste. Anne first and then Mr.

Sidney Green, MLA, second, and then Mr. Vaughan Baird, third. Is that agreeable to the members of the committee? (Agreed .) MR. CHAIRMAN: Agreed. Is Dr. Doyle present? Dr. Doyle, would you proceed with your presentation, please. DR. DOYLE: Thank you, Mr . Chairman. The background for my presentation .

Monday, 17 November, 1980 MR. CHAIRMAN: May I interrupt, Dr. Doyle? Do you have copies of your presentation for members of the committee? DR. DOYLE: I just have two copies, sir. MR. CHAIRMAN: Would you present one or both to the Clerk, please. Please carry on, sir. DR. DOYLE: The background for my presentation . I would like to thank the Government of Manitoba for granting this opportunity to express an opinion on the Canadian Cons tit ution.

My opinion, though personal, reflects my experience as a Canadian-born Manitoban, who, expo sed to an anglophone upbringing, had the additional opportunity of gaining at a later date a thorough knowledge of the French language.

Thus I have the very good fortune of appreciating the anglophone mentalit y, and additiona lly, of un derstan ding the francophone element, which understanding was acquir ed in both the provinces of Manitoba and Quebec. 1 have served the community over the years as a physician, school board trustee, member of the Manitoba Health Services Commission, Director of the former !'Association d' Education de la langue franvaise du Mani toba, Reg iona l Director of the Council of Christians and Jews, and in various other public posts.

During those years I have learned the extraordinary advantages of knowing two languages, and hence, of being exposed to the positive aspects of another culture.

This has led me in turn to a greater appreciation of the cultures of still other fellow citizens, all of which has enriched my personal life and enabled me to appreciate our country the more. lt is my wish ther efore to express my support for the proposed resolution respect ing the Constitution of Canada as a method not only of assuring certain basic rights to our citizens, but of es tablishing a foundation upon which to build a more stable and lasting nation. 1 believe that after so many years of effort that this first positive step of Patriation, Charter of Rights and Freed oms, and equalization can be a sign ificant accomplishment for the security and the pride of our citizens.

Although it may be consi dered incomplete, it would appear far from final, and in my view does not prevent the subsequent entrenchment of other rights, whether individual, provincial or federal. 1 welcome the entrenchment of the freedoms, and additionally of the democratic, legal and mobili ty rights, as well as the no n-discri mina tion and language-of-education rights. The latter are more relevant than might appear at first consideration.

We need go no further than Manitoba to realize how the right to French education has been buffeted over the past many years by provincial change. lt is of note, nevertheless, that the present Manitoba Go vernment is sympathetic to French education. In view of the compromise and the minimal nature of the proposals on language-of-education rights, the latter should be accepted, I believe, by all provinces. 1 find it, however, unfortunate that the use of either English or French in the Legislatures, the courts, statutes and records of all provinces may not be established as it would in Manitoba and Quebec.

However, this is not nearly as important in my view 22 as the language-of-education rights and, furthermore, the other provinces are not prevented from such entrenchment in the future. Hopefully, they will follow the lead established by Quebec and Manitoba. I believe that except for the Amending Formula, that the other elements of the proposed Resolution on the Constitution should no t pose serious obs tacles to acceptance by most Canadians.

However, even with respect to establishing a formula for amendment, it would seem that simply extending the two-year time limit would not necessarily contrib ute to the fin alization of the process. Furthermore, superior modalities to a referendum have so far eluded our leaders, except perhaps for the alternative methods which are actually proposed in the Resolution. In any case, the Resolution would still allow opportunity for at least two years in which other possibilities of amendment may be developed.

On the other hand, the December 9, 1980 time limit, set by parliament for reception of the report from the Special Parli amentary Joint Committee, appears unseemly short given the large number of hearings. Recommended change. There is one area which I would draw to the attention of the committee for specific action: lt is my view that it is most important that under the

section of the right to life and the security of the person, that the right to life of the unborn child must not be forgotten. This fact, I believe, should be established in the wording of the section. Conclusion.

I understand that the government of Manitoba, though not against patriation itself, is against the method and package of patriation, and to this end has sought a ruling in the courts. lt would be a happy event indeed if constructive recommendations for legitimate changes could be effected within our own Canadian family to lead us to the realization of the Canadian Constitution in the most just and acceptable way possible. Hopefully, we may replace what has become the somewhat ridiculous spectacle of division before the worl d, by an example of compromise based on understanding.

When one hears the multip le object ions with respect to rights made in good faith from many ind ividuals and sectors of the nation - the provinces, the native peoples, the educators, the handicapped, etc., one begins to wonder whether it is possible to ever establish the Constitution. But surely we may be assured that the rights to be entrenched in the Constitution are basic human rights, which are common to all our peoples, and to every individual in every part of Canada.

Surely these basic rights can only lead to the benefit of all Canadians and can be built upon but not abrogated, nor because of their nature somehow deny other rights that we now enjoy. lt is nevertheless most important that the authors of the Constitution take special note of these many concerns. In

summary, I would urge the Government of Manitoba to support the proposed Resolution on the Constitution with the specific proviso concerning the right to life of the unborn child, and with special attention to rights generally. I sinc erely believe that the Constitution will increase our sense of direction and of personal security, as well as our pride in Canada and in being Canadian, and that it will lead ultimately to a better understa nding between the

Monday, 17 November, 1980 peoples of our nation, the provinc es and the federal government. I thank you, Mr. Chairman. MR. CH AIRMAN : Dr. Doyle, will you permit questions from members of the committee? DR. DOYLE: Sure. MR. CHAIRMAN: Mr. Mercier. MR. MERCIER : Dr. Doyle, while you expressed some general support for the entrenchment of a Charter of Rights, you made reference to the rights of an unborn child.

I point out to you, without getting into any great discourse over what the Supreme Court of the United States have said, that generally they have said that the leg isla tures and elected people in the United States cannot interfere with the right of a woman to have an abortion. Now, Dr. Doyle, I suggest to you that that is an example of the kind of decision that can be made by non-elected persons.

Judg es appointed for life, can make a decision binding on a country, in this case the Uni ted States, perhaps in Canada, under an entrenched Charter of Rights, that would not be acceptable to you and to perhaps a majority of the citizens of that country.

Now, are you suggesting, sir, and are you in favor of non-appointed or of appointed people, appointed for life, making those kinds of decisions binding on the whole country, binding on you, and thereby you no t ha ving any reco ur se to your elected representatives - the only way of changing that kind of decision would be by amending the Constitution, we have seen how difficult that is. I suggest to you, sir, if you have that concern in this particular field, did you really want to support entrenchment of a Charter of Rights, where decisions will be made by people not responsible to you? DR.

DOYLE: Yes, I would, provided of course, that particular right can be established. Now, you will notice the way that I worded it, that the right to life of the unborn not be forgotten. I think that there are ways certainly of bringing this into the Constitution without abrogating that right. MR. CHAIRMAN: Mr. Parasiuk. MR. WILSON PARASIUK (Transcona): Mr. Doyle, thank you very much for your presentation. I think you have obviously been concerned about this topic and I think we welcome your presentation and others that will come forward through the course of these next two days. With respect to Mr.

Mercier's question, he brings in the case of the United States and the fact that accord ing to their set of constitutional provisions some court cases have in fact ruled in favour of abortion. Are you aware of any particular provisions in the constitutional package or in the present constitution, The BNA Act of Canada, which provides for abortion on demand as is the inference that I draw from Mr. Mercier's question? Are you aware that exists right now in what we have? DR. DOYLE: Not to my knowledge. 23 MR. PARASIUK: Thank you.

Are you suggesting in your presentation that the Mani toba government withd raw the court challenge that it is presently taking before the courts. You are expressing some general agreement with the position that has been taken by the federal government; you have basically in my es timation expressed that as a Manitoban in terms of what you think is best for Manitoba. Do you think it is in Manitoba's interest that the government of Manitoba be dealing with this matter by going directly to the courts? DR.

DOYLE: I would have rather that this procedure not taken place, but in view of the fact that it is now going ahead, I suppose that there is no harm in lis tening to what the courts would have to say conce rning the matter. But I would would have rather not have seen this happen. I was alluding in my presentation particularly to going to Europe.

I think it's unfortunate that our situation here in Canada, our constitution has been bandied around in Europe, in England, and this to me seems to not be very good for this country. lt's unfortunate that we are exposed to such a spectacle and this is one of the things - it's more the external situation than the internal situation. MR. CHAIRMAN: Are there any further questions to Dr. Doyle? Seeing none, thank you very kind ly, Doctor, for your presentation. DR. DOYLE: I thank you very much, Mr. Chairman. MR. CHAIRMAN: Our next person is Mr. Sid ney Green, Q.C., M.L .A. Mr. Green. May I ask Mr.

Green, do you have a prepared text, and if so, do you have copies? MR. SIDNEY GREEN (lnk ster): Mr. Chairman, I'm sorry, I don't, but I gather you will have one as soon as Hansard prints it. MR. CHAIRMAN: Thank you, Mr. Green. Proceed please. MR. GREEN: Mr. Chairman, and members of the committee. I am appearing here at this Constitutional Committee because it is virtually the only opportunity to express publicly and in a formal way constitutional positions before the horses leave the barn even though the door is presently open. I want to make it clear that I am going to deal with two positions, one very briefly.

The first is patriation. I want to say that the position of the government of Manitoba as far back as 1976 - I believe it was the first government that took that position - is that the Constitution should be patriated, plain and simple, and immediately, and we suppor ted the right of the federal government to do that. I must say, Mr. Chairman, th at the federal government in this respect is right when it says that the provinc es were the ones who prevented that procedure because the provinces have continually said that patriation must be tied to amending formula.

As far as the go vernment of Ma nitoba was concerned, although it is not a serious question and although it is much more symbolic than it is real, we felt that it would be preferable to all of the people of

Monday, 17 November, 1980 Canada to have this question dealt with by the federal government saying tha t what presently resides in Westminster would reside in Ottawa, and I think that that would alleviate the obscene scene that Dr. Doyle has pointed out, of us now becoming involved in the parliaments of Great Britain, not with regard to the simple question of patriation, but as to what laws will govern the federal government and the provincial governments. And that would never be, Mr.

Chairman, it would never be that parliament would be discussing Canadian legislative positions, either at the federal or the provincial scene if we were dealing with simple patriation. But we are not dealing with simple patriation, we are dealing with a funda mental signif icant profound change in the manner of parliamentary democracy in this country and how thi s cou ntry will operate in the future.

Because the federal go vernment is asking the parliament of Great Britain to make a law deciding as to how all futur e parliaments, both at the provincial and federal scene, will be governed, and in that respect this particular parliamentary majority - which is not the greatest parliamentary majority that was ever obtained in Canada - is asking for a right to do what no pre vious parli ament has ever presumed to have the right to do, and what it says that no future parliament will have the right to do.

So this parliament claims a wisdom which was not claimed by any past parlia ment and which it precludes to any future parliament. And that is, Mr. Chairman, a question as to whether we are going to have parliamentary democracy as we know it, which presumes, and I want to make this clear, legislators do not confer rights either by stat ing them or declaring them. According to the common law principles of Great Britain under which we operate, the citizen has every right except that which has been expressly taken away by parliament.

Parliament cannot confer rights, it can only take away rights, and what we are going to is a system whereby parliament declares rights and then th ese rights are not int erpreted by parliament, but are interpreted by people, a judiciary, who is appointed, which is not responsible to the public, and which for the future, in the absence of a constitutional amendment, and we know how difficult that is, has these items under their jurisdiction. Mr. Chairman, this is not a small matter.

The fact is, if you will look throughout the world and see which countries have had constitutional bills of rights entrenched and which have not, you will not find that rights exist in greater numer and with greater respect in countries which have constitutional bills of rights.

As a matter of fact, if there was a bias, I would say it was in the opposite direction, that countries which are governed by the principle that the citizen has every right except that which has been taken away, have a greater respect for rights, and furthermore, and what is more important, the character of the people is such that they say that eternal vigilance is the price of liberty and they continually watch to see that rights are not taken away. Mr.

Chairman, I submit to you that that is the basis, not what the laws say, but the feelings of indi viduals as to their rights and what they will do about them when either the courts or any other power tries to take them away is the key issue as to whether you will have rights and when th ese members of the Legislature last year voted to permit a doctor to forcibly take a blood test and pass it on to somebody who is a stranger to the citizen who has that test taken, I say that we have been willing to be rather passive about what our rights are and that is the danger, which will not be corrected by a constitutional bill of rights.

As a matter of fact, it will be made more difficult. I want to, Mr. Chairman, deal with the history in this matter. lt is my submission that constitutional bills of rights have continually been used, or at least have been used in a specific example, which is very close to us, as a means of preventing social and economic change. Those political parties who believe that the status quo is not the basis upon which they wish to exist, who believe that their future should provide greater social and economic equality to the citizens of society, should be the last parties who are calling for an entrenched bill of rights.

I am surprised and shocked that that is not the case with regard to this entrenchment. Mr. Chairman, the following things were held unconstitutional by the Supr eme Court of the Un ited States, the following categories of things, and I want to put a caveat here. We do have court decisions as between federal and provincial rights and we can't avoid that in a federal system, and we will continue to have it.

The difference is that in Canada there has always been an understanding, and I believe it is the law, and in this I disagree with the Manitoba position, tha t the federal go vernment could obtain a constitutional change and therefore when the federal go vernment used its sp ending power to make avai lable medical care thr oughout this country, although there were two threatened lawsuits, one by the government of Manitoba, one by the government of Alberta, the knowledge was that first of all the federal spending power had been traditionally used in that way and would probably be upheld, but secondly, the reaction would have been so strong by the cit izens of this countr y tha t the federal government would have had no difficulty in obtaining a constitutional amendment to permit it.

Therefore nothing happened and Medicare was achieved. That was not the case in the United States nor would it be the case if we pass this entrenched Bill of Rights. 24 These are the thin gs which the Un ited States Supreme Court held to be unconstitutional:

An Act for the Relief of Farm Mortgages; The National Recovery Act, which is broadly referred to as The New Deal; a coal code which provided for labour provisions and for the regulation of the selling of coal ; rai lroad pensions; in dustrial planning; minimum wages for women , minimum wages for men, minimum wages for anybody; the regulation of ticket brokerage in the State of New York; the charges of employment agencies in the State of New York; the restraint of competition in the ice industry - that would be similar, Mr.

Chairman, to our milk legislation; a petroleum code - signi ficantly, this is in the '30s; The Agriculture Administration Act; the Federal Gr aduated Income Tax; the labour provisions of the coal code; The Muni cipal Bankr uptcy Act; the right of Congr ess was held to be unconstitutional to say that slavery will not exist in the territories of the Un ited States. That act was struck down by the Un ited States Supreme Court on the basis of an

Monday, 17 November, 1980 entrenched Cons titution and Bill of Rights, and minimum wages generaily, whido i havt: relerrt:J iu. Now this is well documented, Mr. Chairman. In Schlesinger's book, "The Politics of Uphe aval", three full chapters are devoted to the struggle between Roosevelt, who was referred to as the socialist, and the Supr eme Court, because the Supr eme Court decided to strike down as unconstitutional all of Roosevelt's legislation. And here are the comments that were made by intellectuals at that time vis-a-vis an entrenched Bill of Rights.

This is Reid, Powell, Harvard Law School: "If the court is going to pick up new strange clubs to swat anything that it doesn't like, the subject of constitutional law will be as stable as a kaleidoscope operated by an electric battery." He feared that the court by its novel application of the privileges and immun ities cla use had created a fresh set of weapons with whic h to defend property agains t legislation.

And again, "The processing tax under AAA" - this is The Agriculture Administration Act - "it seemed was not a proper exercise of taxing and spending power because it imposed contractual obl igations on those accepting federal grants. lt therefore became a coercion designed to force farmers into a plan to reg ulate agricultu ral production." Federal grants were given on condition, as we have done on numerous occasions, that the farmer who received them would do a certain thing. This was held to be unconstitutional.

The doctrine that conditioning a federal grant cancelled the federal spending power he suggested would wreck the operations of government. This is what one of the dissenting judges said. Seven coal-producing states filed briefs supporting the government's contention that the Act did not endanger state's rights and that federal regulation was the only solution for th e coal ind ustry.

Sutherland, speaking for the majority, declared the labour provisions of the act unconstitutional in spite of the fact that they had not been put into effect and that ther efore the cour t was presented wit h no concrete question involving them. Further commentary, Mr. Chairman, and this is by Presidents of the United States. Nearly every forceful President in American history has come at one time or another into collision with the court. When he did he discovered a suprising resonance among the people. "You seem to consider the judges as the ultima te arbitrators of all cons ti tutio ns", wrote Thomas Jefferson.

A very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy." The opinion of the judges", said Andr ew Ja ckson, "ha s no more author ity over Cong ress than the opinion of Congr ess has over the judge s, and on tha t point the Pr esident is independent of both." And then Abraham Lincoln: "I f the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court the instant they are made in ordi nary litigations between parties and personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal." Theodore Roosevelt: "One way or another it will be absolutely necessary for the people to take the control of the

interpretation of the Constitution. We 25 cannot permanently go on dancing in fetters.

For the ia::.i thirty years there has been been a riot of judicial action looking to the prevention of measures for social and industrial betterment which every other civilized nation takes as a matter of course, and in some way or another this riot must be stopp ed." Woodrow Wilson: "The most obvious and immediate danger to which we are exposed is that the courts will more and more outrage the common people's sense of justice and cause a revulsion against judicial authority, which may seriously disturb the eq uili brium of our institutions, and I can see nothing which can save us from this danger if the Supr eme Court is to repudiate liberal courses of thought and action." Robert Lafalette, "When the constitutionality of the law is tested Congr ess ought to have a right to overrule the decision of the Supreme Court which, of course, they can't." "lt would be difficult to conceive of a real advance towards social justice in the United States," said Donald Rich bert, a New Deal intellectual, "that has not left or would not leave a vast wreckage of just judge-made law in its pathway.

"Tom Connally, "The real issue before the people of the country today is whether government should regulate and control vast aggregations of wealth or whether they through the Su preme Cour t shall domina te and run government. If the system of judicial law that is being written in defiance of state legislation and of congr essi onal legislation is continued, there is no human power in America that can keep the Supr eme Court from becom ing a political issue nationwide in the not too distant future." As early as March, 1935 , Edward F.

McGreedy, the Assistant Secretary of Labour - this is a man who is now part of the administration - told a Labour audience, "With stupid judges on the Bench, it is up to the workers to organize to such an extent that their economic strength will make it unhealthy for a judge to defy." I think that's a pretty wild statement made by an assistant Secretary of Labour, but that's the kind of thing that was aspired by the Supreme Court, merely deciding that it was going to stop the New Deal. Then, I consider this statement to be probably the best one.

There was a decision of the Supreme Court which was completely contrary to the will of the people and the outcry was immediate. "This means," said Hugo Black, "that 120 million people are ruled by five men. There has been a great deal of talk about the sanctity of the Constituti on," said Burton K. Wheeler, "but I suggest that constitutions are made for men, not men for constitutions." On what does the Supreme Court base this claim for power? "The Supreme Court now in effect, for all practical purposes" said George W. Norris, "is a continuing constitutional convention.

The people can change the Congr ess but only God can change the Supreme Court." "So long as we intend to remain a free self governing people," said Donald Rith bert. "We cannot sanction any effort to establish the worship of a man-made document and reverence for its human institutions as a state religion." Near Aim es, Iowa, six figur es in black robes representing the justic es who voted against the AAA

Monday, 17 November, 1980 were hanged in effigy and the import of the decision went far beyond AAA. "i t was" wrote Arthur Croake, "a decision so broad that few New Deal acts before the court now seem to have any chance of being upheld." "lt is a sad com menta ry on our for m of go vernment," said John L. Lewis, "when every decision of the Supreme Court seems designed to fatten capital and starve and destroy labour." "Every worker of every class," said Dan Tobin, "is pledged tonight to President Roosevelt as a result of the de cision toda y ." Fina lly, in June with th e minimum wage case, it alienated everybody.

Even Herbert Hoover said, "Something should be done," the ex-President said, "to give back to the States the powers they thought they already had." There are nu merous additional qu otes, Mr. Chairman, and I really want to get on with what I have to say, but they are contained in the politics of upheaval with three chapters dealing with how the Supreme Court tried to upset the New Deal. "The basic grievance of the New Deal" wrote Robert H.

Jackson, "was that the court has seemed unduly to favour private economic power and always to find ways of circumventing the efforts of popular government to control or to regulate it." Now some of you will say, yes, but that's history and we are going to be in a better situation. Well, let 's get to exis ting cases in this country, Mr. Chairman. I suppose the most important one - no, I shouldn't say that - one of the most important ones, which has been a subject of some cont roversy amongst the people of this country for several years, has been the issue of the right to life. I suggest to you that Mr.

Doyle doesn 't need his amendment. Mr. Doyle doesn't need his amendment. When the Constitution proposes that there be a guarantee of life, lib erty and the security of the person, I suggest to you that Mr. Borowski, who now has a cause of action in the court, and we can see it in current western week lies, saying that the federal government has no right to en act legislation with regard to the giving of money to the rapeutic abortion, that his first case was thrown out of court. His second case, he has now succeeded; he has got leave to appeal. Now this issue has been in consi derable controversy. Mr.

Doyle says he wants to put it in so that it's no longer a matter of controversy, that there are no two questions on it and I am surprised to hear that some of the people who talk most about an entrenched Bill of Rights fail to see the signi ficance of what could happen in the abortion case. There is no guarantee that it will come out like the Supreme Court in the Un ited States. lt may be that this guaran tee of the right to lif e will rule out all therapeutic abortions, will rule out abortions except as it existed under the previous Criminal Code and maybe worse than that.

The people who say that they believe in an entrenched Bill of Rights say that they are prepared to accept that decision, which I find inconceivable, or that they are prepared now to seek the constitutional amendment to undo what the Supreme Court has said about the right to life. That's not hypothetical.

That is now before the courts, and with a constitutional change, what is being done is taking that out of the realm of public discussion and putting it into the hands of courts 26 and lawyers to decide what shall be done and the leg islators will say we have no power over this question because the court has said that we cannot provide for an abortion other then - and then there will be some rule, presumably as it was under the old Criminal Code. Ano ther section, Mr. Chairman.

Some of the people who argue most about an entrenched Bill of Rights, I find that they are similar people who believe in affirmative action program, who believe that there should be a special law prepared, that people have certain rig hts because they are an impoverished group and all motives are fine, say that they also believe in a Bill of Rights. Well, in the Athabaska Tr ib al Council versus Amico Canada Petroleum Company Limited, the Go vernment of Alberta had a Bill of Rights - and let's not misunderstand what the argument is. Canada has a Bill of Rights; it is merely not an entrenched Bill of Ri gh ts. Mr.

Diefenbaker, although he enacted a Bill of Rights and they had 206 people in the Legislature, did not presume to say that a future government with 250 seats was not just as smart as he was and could change. That is what we have today. What is now being suggested is an entrenched Bill of Rights and when one thinks that this is being advocated by people who belie ve in social and economic change, Mr.

Chairman, it brings to my mind the suggestion that if I'm going to fight a battle to take a certain position, that the first thing that I would do is run over to the other side and build an impreg nable trench which would protect tha t position. That is what an entrenched Bill of Rights see.ks to do and the word "t rench " is an apt description of what is happen ing.

What happened in the Athabaska case is that there was a Bill of Rights and the province then went into an affirmative action program and the court said that the affirmative action program contravenes the law with regard to discrimination against race, creed, color, or religion. And so, because that case happened to happen in time, there is

Section 15 of this Act, which first of all declares that every one has the righ t to equality before the law, prote ction of the law without discrimination because of race, nationality or ethnic origin, and then it says, "This

section does not preclude any law, program or activity that has as its objective the amelio ra tion of conditions of disadvantaged persons or group." So they get in an amendment before the position takes place. But now a court decides whether that affirmative act ion program is in deed affirmative action progr am, does do th ose things, not the Legislature, a court starts administering, and that is in fact what has happened in the United States. They had to go and say when bussing shall take place, at what rate integration shall take place, and I'm not saying that these are bad things .

I'm saying that in Canada we have the means of doing them through parliamentary government. Let us remem ber tha t the Un ited States of America is the most sophis ticated system in the world set up to ensure that the public will never be able to obtain power, and they have done it. They have got two legislatures, the Congress and the Senate. Nothing can happen without eit her one. Then the Executive is separated and they don't have to do it or it can veto it, and then if even all these agree,

Monday, 17 November, 1980 there is the Supreme Court of Canada, and that's why you do not and never have had a party that has gained any signi ficant power in the Un ited States tha t is based on social change and economic change, because it's against the law. In the Un ited States it's not that socialism is undesirable. it has been made illegal and that is what is being sought, and if it's not being sought, that is the kind of thing that can be done by an entrenched Bill of Rights and why would anybody want to do it? I even have to respect my counterpart, Mr. Lyon, in this connection. I disagree with Mr.

Lyon's concept of government. but he has always been prepared to fight it out. He has always been prepared to say you present your way and I will present my way and one will win and one will lose. What the people now say, what Mr. Trudeau says is, we will pass a law and then make it illegal for you to change that law. We won't even be able to change it. There are going to be five arbitr ators there. I believe, Mr.

Chairman, 1 don't think that there will be much argument, that I am before the courts of the province of Manitoba as much as any other lawyer and have as profound a respect for the courts, but I have never wanted the power to seek social and economic change to be put into the hands of the ju dges rather than the legislators. Now what are the issues, which I can show the members of the committee, will be put into the hands of the judges? I have already discussed the abortion issue.

Capital punis hment. have always been opposed to capital punis hment, but I have always been prepared to fight it out because I think imposing abolition on the large majority of people will not result in abolition, it will result in vigilanteism. Under this constitutional Bill of Rights, where it says that there shall be no cruel punishment, it is open for a Supreme Court of Canada to say that hanging is cruel. I happen to think it is cruel. it's not really nice. it's a cruel form of punis hment. So the Supreme Court could declare capital punishment by hanging.

Maybe they will find a nice way of doing it, although I doubt it. They will ha ve a right to declare it unconstitutiona l. Now all of those people, who say that they want the Legislature to do something about it, will be in a position of saying that they have lost their right to govern. I would happen to agree with the decision, but I will never agree that it should be decided other than by the people of Canada, because that will do more harm than good, so that could be taken out of the realm of ordinary polit ics. Censor ship, Mr . Chairman, the right to free expression.

The courts could go one of two ways. lt could say that free expression does not include the right to display obscene subjects or it could say that it does. Up until now we have been prepared that the elected representatives of the people will debate that question and try to do the people's will on that question. What we will have in the future is that will be taken out. As a matter of fact, I guess there are certain politicians who would like to say take it away.

I'll tell my citizens that it's not up to me, it's up to the Supreme Court. it's a very convenient way of avoiding responsibil ity but it does not make for good responsible government. Interesting, Mr. Chairman. 27 The right to work. The very question that we have debated here back and forth for years, the question as to whether a person shall have a compulsory deduction of union dues, whether he is a member or not, to pay for the expenses of the union. lt could well be decided by the Supreme Court. As a matter of fact, I am certain it would be decided by the Supreme Court.

I am certain that union shops would be decided by the Supreme Court.

I am certain that right to work legislation will be decided by the Supreme Court on the basis of the provisions in this bill, which talk about a right for a person to be able to work anywhere in Canada, and I am certain, based on wha t I have read in the politics of upheaval, that a person will take these questions, have them decided by the Supreme Court and then, if the Supreme Court decides that a person doesn't have to pay union dues because it is contrary to his freedom of conscience which is mentioned here, then I have to get the governments of Quebec and six other provinces, repres enting over 50 percent, to pass laws saying that the Supreme Court doesn't know what it is talking about.

Now is that what people want? Do they call that the creation of right or is that the elimination of right? Calling it a Bill of Rights doesn't confer rights any more than saying freedom of information, as was used to be said in this House, will provide more information and will not provide more secrecy. For those glib intellectuals who say how can you argue agains t rights, they are doing thems elves an inj ustice.

They are doing the other side of the argument an injustice and they are giving force to the kind of argument that used to be advanced by the Manitoba Peace Council - "I f you are against us, you are against peace. If you're against the Bill of Rights, you're against rights." That's nonsense.

There are two sides to this question and generally Bills of Rights have been created in countries, which previously did not have rights, where there was an overthrow of government and where there was a Declaration of Rights and one can hardly say, as a matter of fact, that's what happened in the United States. it's exactly what happened in the Uni ted States.

But England has not, in my opinion, been less solicitous or has had less solicitude for the rights of its citizens than has the United States of America, and has also had a government which is responsible, and with response to the need for economic and social change. Another one, Mr. Chairman. I happened not to have been a fan of the Hate Literature Legislation.

In 1962 I was asked by my constituents to come out on the hate literature question and I said, "L ook, if I deal with that question, I'm going to come out against legislation", at which time they immediately told me to shut up, because I said I'd prefer to know that the literature is there, who is printing it and to fight it with good literature, with love literature as against hate literature, on the assumption that the people will be more responsive to what is intelligent than to what is st upid.

But there is now hate literature legislation and many people who believe in entrenchment to the Bill of Rights say they want Hate Literature Legislation. I am fairly certain that it is open to the court. Indeed it is probably a better legal decision that the court would say, under the right to freedom of expression, that hate literature legislation

Monday, 17 November, 1980 is ultra vires of the federal government and that hate literature is permitted. Now, Mr. Chairman, that won't trouble me a great deal because I believe that the best way to combat it is to combat it, but it will trouble those people who want it and say that they also want an entrenched Bill of Rights. Mr. Chairman, the school question. Mr. Desjardins and myself have been at opposite ends of this question, but it seems to me we've always been willing to say that we are willing to try to advance our position so that it commends itself to the people.

The Supreme Court of Canada could say one of two things ; that if a person is of a certain religion and that is not taught in the schools, he's entitled to have his money paid to him to set up his own school. They can say that or they can say that the schools will not teach religion and therefore the government has no freedom of conscious reasoning, that the government can't finance one religion or the other. They can say two things. Mr. Desjardins would not be prepared to accept one of the decisions; I would not be prepared to accept the other.

So why are we giving it to somebody, who we don't know what he's going to decide, to make that decision in advance, and we don't know what the decision is going to be? Now that's not my idea of democratic government and the exercise of democratic power, and res ponsible government. Mr. Chairman, there's another one -the fish case, and this is not hypothetical, Mr. Mercier will know about it. We started a new fish processing plant. We started the Freshwater Fish Marketing Corporation. We said that we were not going to use the old ones, and we didn 't, and we didn't buy their goods.

The Supreme Court of Canada came to the peculiar decision, and I say it is peculiar, that their right to carry on business represented property, the right to carry on business, not the property , the right to carry on represented property, and the government had to compensate them for that property just as if they were purchasing it as a going concern. This act says that you will not property without just compensation. The Supreme Court decision presently says that if you want to take it without compensation, you have to say so specifically in the legisla tion. This bill says you can't do it even if you say so.

Un der this legislat ion, applying the Supr eme Court's decision on the fish case, when we took over the rights to provide our own automobile insurance to ourselves, we would have had to pay goodwill to every company operating in the insurance business in the province of Manitoba.

Socialism would not be something that would be undesirable. lt would be something that is illegal, and the people who belong to a party, saying that they want social and economic change, supporting an entrenched Bill of Rights, I repeat, are putting up a trench on the opposition front, which is impregnable and which they can't go over before they start to fight the battle. Mr. Chairman, there is now requests with regard to Indian questions. There is requests with regard to women's rights. I believe that all of these people have rights.

I believe that one of the big problems with regard to our native peoples, the Indian peoples, is that it was entrenched in the Constitution under

Section 91, and they didn' t gain a great deal out of that entrenchment. If you will examine the conditions 28 under which they live, you will see that they did not gain a great deal under that entrenchment. To now entrenched positions, which would say, and this is wha t th ey 'r e asking - tha t th ere will be no development of the Northwest Territories without the consent of the Indian peoples who are there, would be self-defeating to the Indi ans because no one would accept it even if it was the law, there would be found some way of weasling out of it. To say, Mr .

Chairman, that the wealth of the country, the provinces, belongs to the provinces and have future decisions on that question interp reted by the Supreme Court, would be to undo all the federal protection that we've had now with regard to an energy policy. Interestingly enough, Mr. Chairman, would it lead to the conclusion which some people are willing to suggest they believe it?

That if billions of dollars of wealth were discovered in our Nor thwest Territories, and I use the word 'our' advisedly, that wealth would belong to the 40,000 people living in the Northwest Territories, to do what they would with it at the expense of the rest of Canadians. Well, Mr. Chairman, it is preposterous that 26 million people would put them selves in that position vis-a-vis 40,000, and I don't say that it's a tyranny of the majority, I say that it's only right that it not be so. I've never recognized that this land belongs to any individual or group of individuals, it belongs to all Canadians.

To do that, Mr. Chairman, would not only be the height of absurdity, it would be the furthest thing from anything that I know of that goes by the name of Socialism - the furthest thing. Mr. Chairman, somebody says, well it can be amende d . Why? Fi rst of all, we had dif ficulty amending up until now. The amending formula would represent a further hurdle in this trench that one has to overcome. But the bigg est proble m, Mr . Chairman, is what it would do to the democratic process.

In that bill there are numerous areas, which the Supreme Court could use to cover issues which have been the matter of constant and constructive debate by members of legislative assemblies and parliaments throughout this land, as to what is right and what is wrong, and which the people have had a knowledge that the debate has taken place and a participation from time to time in the debate. What this would do is to say the groups hire lawyers, the debate is no longer one of what is right, it's one of what is legal, and how do we get our argument through to this judge or that judge.

I know what that is all about, Mr. Chairman, and I tell you that I personally would not suffer by it. I am certain that I would get my share of constitutional questions bonanza from one side or the other or both. But it, Mr. Chairman, would be far less satisfying to me as a person who believes in the parliamentary process than going before the public, than going before a legislative opinion, and arguing not what some judge will say is legal or illegal, but what is right, just and equitable, and will commend itself to the people of this country, and on which I will seek their support.

That will be the essential difference. lt will be an essential difference of character that is taking place, and there will be a difference of character. Because don't get the naive notion tha t if there was a government, a federal government, that found that its views or its legislative program was being undone by the Supreme Court that would not figure a way of

Monday, 17 November, 1980 dealing with that question. The question of who was appointed and how reliable he is would become a very important quest ion, and we would not have clinical decisions by a Supreme Court, but we would have a continuing and gr owi ng amount of manipulation between governments and the courts, so as to see that somehow the legislative will of the people and the needs and exigencies of any economic situation are dealt with. I'm going to close, Mr.

Chairman, by saying that it's in tere sting that this presumed majorit y, parliamentary majority, and it's not that big, and it certainly doesn't represent the majority of the people in the country, is the one who's telling us that it will protect the civil rights of the people. We've had two examples of how it's done this.

One was The War Measur es Act, which is comparable to the interment of Japanese during the war, as comparable a violation of civil rights, and the second was the Anti-Inflation Board controls, which were a violation of all of the principles of free collective bargaining both on the part of the workers and on the part of their employers. This government presumes to say that it will pass a law and that law is better than anything that could ever be dreamed of in the future and therefore shall not be changed.

If parliament was satisfied on the question of the validity of its position, why would it not patriate and then get these changes by way of amendment, which is going to ask you to do in the future. The entrenchment Bill of Rights. A great thing? Repatriate? Now you have a constitution. Do you want an amendment? See if you can get what they are asking the future generations to get in order to change those laws. That is my submission, Mr. Chairman. MR. CH AIRMAN: Mr. Green, would you permit questions from members of the committee? MR. GEEEN: Yes, Mr. Chairman. MR.

CHAIR MAN: Are there any members of the committee who wish to ask Mr. Gr een a question? Mr. Einarson. MR. HENRY EINARSON (Rock Lake): Mr. Green, first of all, I want to thank you for your presentation and as you all are aware of it, I have always been an admirer of your comments that you have made both inside the House and outside. You gave us a review of the pros and cons of the whole matter that is before us, before the people of Manitoba and before the people of Canada. There is one question ·I would like to ask you. Could you tell me how many judges compose the Supreme Court of Canada? MR.

GREEN: At present, there are none. Ther e have been decisions in the Supr eme Cour t of Canada which have gone 5-4, and many of the New Deal decisions, which I have referred to, were 6-3 decisions and 5-4 decisions, so you are not getting a cli nical statement. You'r e getting a philo sophical statement.

If there is anybody who thinks that a judge who ha ppens to be of strong Catholic persuasion and I respect that, can think clini cally in the same way as one who is of strong Protestant 29 persuasion or of Jewish religion persuasion, on the question as to whether where life begins and when and where it can be taken, then they are naive in the extreme. They are fooling themselves. To suggest that it's going to be a question of law, there is no such thing as a clinical question of law, and many of the cases that I fought in labor matters dealt with this very question, because Legislatur e passed a law.

They did somebody a great favor. They said everybody has a right to be a member of a trade union. Now people did look around saying, "What did they give me? I always had that right." When did a person not have a right to be a member of the trade union? But then the courts went on to say, having been given that right by the Legislature, you can only exercise it in certain ways.

Where it used to be legal for you to walk in front of a store and say, "This man is unfair to me," it is now illegal unless you get certified, unless you have applied for conciliation, unless you go through the conciliation precedu re, un less you give notice to commence collective bargaining, and then it may or may not be legal, we will see. Perhaps the best example of this came out the other day in the Free Press with regard to the Anti Scab Legislation, as to how judges treat it.

The head of one of the big gest unions in Quebec says, which I am happy that I had the foresight to say more than three years ago, "The law is a failure." That first of all the courts are now talking about what is re-hiring and if you hire a contracting company, that is not re hiring, and if people do it voluntarily, that is not a breach of the law, and we don't know whether the strike is legal or illegal and we'll have to find that out before we invoke the law. All of these things will become the provinc e, not of the people who have rights now, and I defy anybody to show in those legisla ted rig hts, which Mr.

Trudeau and his parliamentary majority are so generous as to confer upon me and which I have never asked for because I will fight for them rather than let them be taken away from me. Almost every single one of them has been given by parliamentary government, and with regard to the French language question, that is entrenched in the existing Constitution insofar as it's use in the courts, etc. In sofar as education is concerned, it's my position, Mr.

Chairman, that we will go much farther in this area by convincing the legislators of the various provinces that it should be done, rather than we will by a Supreme Court decision, because if you look at the Act, it says, "Where the population warrants it, that will be a matter of continual legal argument." While it is being argued it will not be there and then the people who want it will have to accept the decision of the court as to what it means.

So I belie ve tha t I do no t have to again sho w my credentials vis-a-vis my commitment to the use of French as an official language in the Province of Manitoba and as to the desirability of more and more people in our country speaking French, but it's not going to come by this Constituion. As a matter of fact, it might be hurt by the Constitution, because the existence of French as a language in Canada will depend on the existence of a province where French is the spoken lang uage. French is the spoken language in only one province in Canada and can be the same as English is in Manitoba, and that's in

Monday, 17 November, 1980 Quebec, and this Constitution might prevent the Quebecois from making Queb ec as French as Manitoba is English. MR. EINARSON: The second question, is it correct to say that the appointments of judges are made by the Prime Min ister of the country? MR. GREEN: Yes, it's made by the Lieutenant Governor by and with the advice of the Cabinet. I suppose he has to have suppor t. MR. EI NARSON: Thir d que stion, Mr. Chairman. Many people have been concerned and wondering what is in the back of the mind of the Prime Mini ster of this country today and I would like to ask you?

You can answer if you wish to. Is it the ultimate goal of the Prime Mini ster to turn this country into a Republic? MR. CHAIRMAN: If you don't wish to answer that question, you certainly don't have to. MR. GREEN: I would be contrary to an entrenched Bill of Rights no matter which Prime Mi nister brought it forward. If it was Mr. Trudeau who brought it forward, I would be against it. If it was Mr. Clark who brought it forward, I would be against it. If it was Mr. Broadbent who brought it forward, I would fight like hell and be agai nst it.

I have not chan ged my position in this connec ti on and from my understanding of my work within a political party, that was the position of at least the majority of the people in its Legislative Caucus, that we would not be in favor of entrenched Bill of Rights. MR. EINARSON: Thank you, Mr. Chairman. MR. CHAIRMAN: Mr. Slake. MR. DAVID BLAKE (Minnedosa): I just wanted one comment from Mr. Green, Mr. Chairman. He referred briefly to the interment of the Japanese Canadians during the War. I would like him to comment further on that.

In your opinion, do you feel that the rights of groups such as that would be protected with the entrenchment of a Bill of Rights when a country was at war, a group that may be considered by the government of that country to be subversive in some way? Do you think their rights would be protected under an entrenched Bill of Rights? MR. GREEN: Mr. Chairman, Mr. Slake. I have never under-estimated what can happen with the tyranny of majority.

I have always been concerned that the democratic process can result in a hysterical government and a hysterical leader, and that government and that leader could have a very bad effect on my rights and that is why I say that the population of a country has to be on conti nual vig ilan ce agains t such thin gs and no t being themselves to be protected by a Bill of Rights. I am just as afraid of a tyranny of a minority, perhaps more so, and I don't see that a tyranny of a minority is more to be respected than a tyranny of a majority.

When there is hysteria in the country, such as there was in 1970, and if you want to see which people really believe in a Bill of Rights, see which 30 people stand up and say, "We won't do it, we're going to defend those people and we're going to speak agains t the go vernment ," such as David MacDonald did in your group, one person; and see which people say, "We can't say any thing now because the times are not right." Go back to 19 70, and you will find that some of the same people who are now talking about entrenched Bill of Rights were saying that we can't speak now. We can't speak now.

The only time that it is important to speak with respect to civil rights is when you are going to be incarcerated or else looked upon with abomination by the people because you are speaking, because that's when rights are endangered. Find the people who have done that and trust them more on the question of civil rights than you are now in trusting the person who did it, which is Mr. Trudeau. What did he say? How far are you prepared to go? Can any of you forget tha t sc ene, walking out into Parliament and the reporter saying, how far are you prepared to go?

"Jus t watch me." That person is going enshrine my rights? MR. CHAIRMAN: Mr. Mercier. MR. MERCIER : Mr.

Green, I assume in view of your position and in view of the Prime Mini ster's stated intention to proceed with the Federal Constitutional Proposal without the concurrence of the provinces, and in spite of the opposition of a majority of the provinces to the concept of the entrenchment of a Charter of Rights, that you would support th ose provinces who have referred this matter to various courts of appeal as a last resort, granting that the best way to resolve this matter is between the level of the governments in a political way. MR. GREEN: Mr. Mercier, I'm going to be perfectly consistent.

I wouldn't let the courts decide this question one way or the other. Mr. Trudeau is going to go ahead and do this thing. I believe that he has the parliamentary right to do it, just as he has the parliamentary right, if he can get a majority, to say that every fifth citizen will be disposed of. The parliamentary right - I'm not going to say that the courts are going to protect me from that Parliament. I want the people of Canada to protect me from that Parliament and I want them to undo the people who are doing it. I say, Mr.

Chairman, that there has been an abdication on the part of intellectuals who know what this question means and who are running around say ing, fi rst of all, hiding the qu estion un der patriation.

There is no argument about patriation, although I agree that the provinces behaved very badly on this question, but there is no argument on the question of patriation, and putting the Bill of Rights in as a means of a package and putting the British parliamentarians in the terrible position not of legislating that there will be a Constitution to be dealt with in Canada, but legislating as to the rights of citiz ens, which th ey have never done for the mselves.

The Br itis h Parliament has never enacted a Bill of Rights for themselves, and they are being asked to en act one for the Legislatures and Go vern ment of Canada. In teres tingl y enough, Margaret Thatcher, who sees the writing on the wall and no w wants to legi sla te for the future

Monday, 17 November, 1980 governments, wants to enact an entrenched Bill of Rights in Britain, and the Labour Party is diametrically opposed to it, because she wants to make the things that the Labour Party stands for to be illegal. MR. CHAIRMAN: Mr. Parasiuk. MR. PARASIUK: Mr. Green, do you know of any countries which have Bills of Rights? For example, does Sweden have a Bill of Righ ts? Does West Germany have a Bill of Rights? Does the Netherlands have a Bill of Rights, Denmark? MR. GREEN: There are many countries who have Bills of Rights.

I know of no countries where Bills of Rights have given more rights to the people than the common law of England, which says that you have all those rights except those which are taken away. I also know that Russia has a very nice-sounding Bill of Rights. In Russia, according to the Constitution, anti-Semitism is a crime punishable by death. Ha] Ha] I know that many of the Argentinian countries have Bills of Rights. I say that there are ways in which these things come about, but what has happened in Canada that needs to have them brought about? The protection of the French language?

If so, limit the entrenchment to language rights. We made that concession when we were the go ver nment. Even though I don't happen to believe that it is the best way, you all know me to be a very flexible and compromising person. If that's the great fear, then legislate an entrenched language right. lt won't do you any good, but legislate it. MR. PARASIUK: The reason why I brought in some of the other countries is that you paid particular attention to the American example which, I believe, has a right-of-property provision within their Bill of Rights.

I don't kno w whether the Bill of Rig hts proposed for Canada has that provisi on. lt's my understanding that . . . MR. GREEN: lt says, "L ife, liberty and the security of the person" and the security of the person will be interpreted by the Supreme Court to mean property. MR. PARASIUK: I don't want to debate with you in this forum because I don't think this is a debating forum, but that's again your

interpretation. MR. GREEN: No, it's not my

interpretation, it is a possible

interpretation of the Supreme Court. You cannot say that they won't do that. I can say that they may do it and if they may do it, why should I give them the opportunity of doing it? MR. PARASIUK: Getting back to known facts, you have said tha t some of the people who are proponents of the Bill of Rights are those people who were quite silent in 1970 when The War Measures Act was proclaimed. You mentioned a person called David MacDonald, who at that time was a member of the Con servative Caucus federally who voted against The War Measures Act.

If I can recall correctly, the facts of that circumstance, David Lewis, the Leader 31 of the New Democratic Party nationally at that time and Tommy Douglas, the former leader . MR. GREEN: Tommy was the leader. MR. PARASIUK: Tommy Doug las, the leader and David Lewis, who then became leader, who are both proponents of the Bill of Rights, did in fact at that time speak out very fo rcefu lly against The War Measures Act and did at that time very forcefully vote against it. MR. GREEN: First of all, I have never heard Tommy Douglas say that he is in favour of an entrenched Bill of Rights.

He was the Leader of the New Democratic Party at that time and he definitely spoke against it and so did the New Democratic Party group in Parliament, I believe, with one exception. I believe tha t Max Saltsman may have voted with the government, but I kn ow that in the Province of Manitoba that was not the case, and when I was talking about looking people, I was talking about looking here and I know what happened then. With regard to Mr. Douglas, I wouldn't say that - I could speak for David Lewis but I haven't heard Tommy Douglas say that he is in favour of an entrenched Bill of Rights.

I have not heard David Lewis say that he is in favour of an entrenched Bill of Rights. I have heard them say that they are in favour of Bills of Rights and Mr. Douglas enacted a Bill of Rights in the Province of Saskatchewan. We enacted and I voted for human rights in the Province of Mani toba with great misgivings, but because I am so flexible and compromise, I voted for it, but I would not vote for an entrenched Bill of Rights. There are certain places at which I break and I would break on the qu estion of voting for an entrenched Bill of Rights.

I don't see how I can presume that I have the wisdom of the ages today which governs you tomorrow, when you have a different opinion, and that's the presumptuousness that is taken upon themselves by people who say that they can say today what shall govern for the same legislators tomorrow. MR. CHAIRMAN: Are there any further questions to Mr. Green? Seeing none ... MR. GREEN: I kno w that Cy Gonick was the outspoken opponent of The War Measures Act in the Province of Mani toba and he was not treated very nicely on that account. MR. CHAIRM AN: Thank you, Mr . Gr een . Mr . Parasiuk. MR. PARAS IUK: Was Mr.

Gr een ans weri ng a question there or making a statement? I wasn't sure. MR. GREEN: I am making a statement. If it is difficult for you to understand that, I am making a statement. MR. CHAIRMAN: Are there any other questions to Mr. Green from members of the committee? Seeing none, thank you, Mr. Green, for your presentat ion. MR. GREEN: Thank you.

Monday, 17 November, 1980 MR. CHAIRMAN: The next person on my list is Mr. Vaughan Baird. Mr. Baird. Mr. Baird, I ask you the first question, do you have a printed brief? MR. VAUGHAN BAIRD: I have one that can be photostated. MR. CHAIRMAN: You have only the one copy which you will read from. MR. BAIRD: Yes, actually. MR. CHAIRMAN: Would you leave it with us at the conclusion of your presentation? MR. BAIRD: I will. MR. CHAIRMAN: All right. Proceed, Mr. Baird. MR. BAIRD: Mr.

Chairman, and gentlemen, I want to first off thank those people who pushed that the public should be heard on this question and I want to thank them si ncerely . I'll say this , I was disappointed to read in the Free Press just last week, the statement tha t Manitobans wer en't really interested in the Constitut ion. Well, when the horses are out of the barn and you shut the barn doors, what can you do? Even I felt discouraged coming before you today because the government has taken a stand. They hav en't heard from the public, and I am a member of the public, I am not a member of the Legislature like Mr.

Green, but I am the other side of the coin. I believe in an entrenched Bill of Right s. He mentio ned Ma rgaret Tha tcher. Wel l, Mrs. Thatcher on looking at it and being point ed out to her and seeing how government regulations and government powers go forth on destroying of the freedom of individuals, they are taking away rights all the time. Why not say what some of those rights are so the people can point to them?

When they entered the Common Mark et they signed a Treaty and in that Treaty there is a Bill of Rights and people say, "B ritain does now have a Bill of Rights." So she is going to put it before the Parliament and say, "L ook it, we signed that Treaty, we are bou nd by the Treaty, and there is a Bill of Rights in that Treaty of the European Go vernment." Mr . Green also mentione d Diefenbaker, but I suggest to tho se who are in terested, read Mr. Diefenbaker's memoirs, Mr. Diefenbaker said, "l t is the first step, my Bill of Rights.

" He wanted an entrenched Bill of Rights and goes on and says in his Volume Ill, "The protection of the dignity and worth of a human person is one of the most important functions of government." There are those that feel that it is not necessary to have a charter of basic rights and freedoms or an entrenched Bill of Rights. We today are living in an era of codification of laws. Thousands of laws are being put into statutes and regulations which restrict the right of a Canadian citizen. We codify everything of what man cannot do.

Why do we not codify what are his basic human rights to warn and protect from all would-be trespassers. Some say this is contrary to our parliamentary system, but sinc e 1867 we in Canada have had entrenched rights, the division of powers between 32 the federal and provincial governments to be more specific.

We hear people say, "lt will be the courts that decide." Yet right today our government is proceeding in the courts, trying to get them to say we have rights. lt rather seems when an individual, who feels his rights and wants them entrenched, wants the protection of somebody outside of the majority to say those rights are protected, and yet they go to the courts to say we have rights. Why can't the individual with his entrenched freedoms?

Mani toba has had its la ng uage and certain educational rights entrenched in The Manitoba Act, which was passed by the Imperial Parliament to make sure no legislature could override those rights. All parties have gone on record favouring adoption of a Human Rights Charter. Both in 1972 and 1978, joint Ho us e-Senate Parlia men tary Comm ittees unan imously suppor ted the federal govern ment's proposal on tha t behalf. The Canadian Ba r Association Committee on the Constitution has lent its full suppor t for an en trenche d Bill of Rights.

One can say no Bill of Rights is perfect and even the Right Honourable John Diefenbaker felt this was the first step. If one does not enshrine fundamental human rights in a Bill of Rights, there is no limit to the restriction which can be imposed on an individual. We have recently seen the Blaikie case in Quebec, where the Leg islatur e tri ed to overr ide th ose entrenched rights of the English-speak ing Canadians, and the Forest case in Manitoba, where the rights of the Fren ch-speaking Canadians have been overridden for 90 years by a Legislature violating entrenched rights. Warren J.

Newman in his thesis on the Blaikie and Forest case stated: "The Attorney-General of Manitoba intervened on behalf of his government counterpart, creating the spectacle of a province that had attempted to suppr ess the language rights of its English-speaking minority, finding itself an eager ally in a province that had managed to strip identical rights from its French-speaking minority." The learned Chief Justice Deschenes of Quebec Superior Court in his leading decision that was upheld by the Supreme Court of Canada stated: "lt was the the intention of the Fathers of Confederation to remove the question of the use of the two languages, English and French, from the possibility of the arbitrary or capricious or even very simply of the wish perceived legitima te by the majority, whether English in the Central Parliament or Francophone in the Legislature of Quebec.

They intended that this provision remains intangible and secure from all legisla ture intervention by one or other of the elected Assemblies." With an entrenched Bill of Rights, legislation which violates human rights of Canadians can be called to account before a court of law. If the rights of an indi vidual are not protected by the entrenched rights then those rights can be overridden by a legislative majority as they have tried to do in the recent cases of the Blaikie and Forest. Leg islatur es can be tolerant or ign orant of min orities and their special ri ghts.

Th ose who opposed entrench ment hold the colle ctive and majority rights must take priority over the individual and minority rights. lt is my submission that the majority rights end where the minority rights begin.

Monday, 17 November, 1980 Without the protection of the li berties of the individual we can see the erosion of the liberties of our society. No law is perfect and notwithstanding it is entrenched, it can be amended and perfected just as the Uni ted States of American has amended its Constitut ion. Remember this, Uni ted States has amended its Constitution on many occasions. We have seen Watergate in Uni ted States and some hold that as a terrible example of democracy. I think it is the best enema democracy has had in Nor th America.

The other side of the coin, the government of the day was not able to hide behind a veil of secrecy. lt was accountable not only to the people, but to the law of the land. The divine right of the President or of one man was once more struck down in that he was not above the law. No government in Canada should be above the law. We are a federal state with the division of powers of certain rights as already entrenched. Gallup Poll shows that 91 percent of all Canadians feel that our Constitution should guarantee basic human rights. Mr.

Green mentioned a number of cases, but we must remember in the United States they have a division of powers between the federal and the state, and the repository of powers resides with the state and what Mr. Roosevelt was trying to do was take over state rights in the majority of those cases mentioned.

That is why the Supr eme Court of the United States was saying, "L ook it, you are taking over state's rights and the repository of powers are with those states." Our Bill of Rights must no t be ju st guiding princip les but must be entrenched so tha t the judicia ry can apply it and override legislative and administrative actions which violate our fundamental freedoms. lt has been stated that the purpose of constitutions are to keep government off the backs of people.

Gentlemen, I am going to close because there is a number of people who would like to be heard from, notwithstanding we feel the hour is too late, the door is shut, diss evered governments have taken stands, both federally and provincially. In John Diefenbaker's speech to the nation from Winnip eg over CBC on the 10th of June, 1948, he stated as follows: "A Bill of Rights for Canada is the only way in which to stop the march on the part of government towards arbitrary power and to curb the arrogance of men clad in a little brief authority ." Mr. Diefenbaker was for an entrenched Bill of Rights, an entrenched. Mr.

Green, you were out of the room at the time, but I suggest you read his Volume Ill. MR. DESJARDINS: Mr. Chairman, on a point of order. MR. CHAIRMAN: Mr. Desjardins. MR. DESJARDINS: I don't think that we should allow this, because we will have a lot of problems. MR. BAIRD: Sorry, I apolog ize. MR. DESJARDINS: I think the meeting shouldn't be interrupted and we don't want a debate between the 33 people that are here to present br iefs to the committee. MR. CHAIRMAN: Mr. Baird, would you address yourself to the committee only please? Carry on. MR. BAIRD: Yes, Mr. Chairman.

I am keeping my subm ission brief because there is a number of people who want to be heard. I think there would be a lot more if decisions hadn't already been made. MR. CHAIRMAN: Would you permit questions, Mr. Baird? MR. BAIRD: Certainly. MR. SAMUEL USKIW (L ac du Bonnet): Mr. Chairman, I am very intrigued by the analysis of the American situation involving the President of the Un ited States. At least that is the example, sir, that you were using.

A person that you said was not above the law and yet my recollection, sir, is that the people, his aides, who were protect ing him under his direction were all sent to jail but he was not, and therefore I would like you to elaborate how you conclude that Mr. Nixon was above the law of the Un ited States? MR. BAIRD: Let me put it this way. I say, in my opinion, he was not above the law. He had to resign the hig hest office of th eir land and we must remember that the President who succeeded him gave him a pardon, so then you are not above the law. He had to obtain the pardon from the authority of the government.

MR. USKIW: Just to pursue that one more time, sir. I think it is a well-known fact that he had a major role to play in the dealings with his successor before he gave up office and therefore he was certainly not treated in the way that all of the other people that were inv olved were treated . He was giv en an exemption from the law. MR. BAIRD: Some think that the place he will take in his tor y and having the embarr assment of resigning, etc., was penalty enough, and that was the decision of Mr. Ford, the President then, deciding to heal his nation and get it back on the track of work.

Otherwise, you were going to divide the nation more. MR. CHAIRMAN: Mr. Walding. MR. D. JAMES WALDING (St. Vital): Thank you, Mr. Chairman. I am not a member of the committee, but I assume that won't prevent me from asking a question. MR. CHAIRMAN: No, I have recognized you Mr. Walding, proceed . MR. WALDING: I wanted to ask a question, Mr. Baird, following your presen tation. I no ti ce in

Schedule B of the Proposed Resolution that

Article 1 under the Charter of Rights and Freedoms says that the rights and freedoms are subject only to such reasonable limits as are generally accepted in the free and democratic society. I would like to ask you what reasonable limits are and whose reasonable

Monday, 17 November, 1980 limits will they be and who will set the reasonable limits? MR. BAIRD: I think that is where The War Measures Act enacts and the government of the day would make that decision. If we have, and I sinc erely hope we never have again that The War Measures Act will be invoked as it was, and I think that is the door opening for that MR. WALDING: For clarification then, what you are saying is that these privileged rights and freedoms are set out in here but Parliament can decide what the limits are? MR. BAIRD: In certain emergencies it has what they would class emergency powers, yes. MR.

WALDING: Other than emergency powers, who sets the reasonable limits? MR. BAIRD: The government itself may try and set reasonable limits by passing, for instance, things under the Criminal Code, and they say that this is the law and while Mr. Green has pointed out that there are certain things that may not be permitted because it is in an entrenched Bill of Rights, but the government of the day will certainly - there is going to have to be, shall we say, with the Criminal Code and with the qu est ion of rights, ther e will be decisions decided on how far the government can go in that regard. MR.

WALDING: The government will decide for itself how far the government can . . MR. BAIRD: Yes, and then the courts will be called on possibly, if somebody contends that they have gone too far, then take it to court. Just like our government today is taking it to the court, they feel the federal government has gone too far. MR. WALDING: Then it will be up to the courts to decide what reasonable limits are and what they are not ... MR. BAIRD: That is right, and I am one of those that have a respect for the courts.

Mind you, many times I don't agree with their decision, but I have respect enough that they are away from the heat of political battle that they can make what I consider what they think is a fair and just decision, but later if the Go vernment of Canada and the people of Canada don't consider it right they can amend that Constitution just as the Uni ted States have amended their Constitution. MR. WALDING: I would like to explore one different facet.

At the time of the Quebec Referendum it was suggested by the "Yes" forces that a sovereignty association was necessary in order to sati sfy the aspirations of the people of Quebec. lt was said on the other side of the argument that if the Refere ndum was defeated that there would be a renewed federalism and the asipi rations of the people of Quebec could be taken care of within the federal system and with the new Constitution. Do you see this proposal for changes in the Constitution as satisfying the aspirations of the people of Quebec? 34 MR.

BAIRD: I question that but I'l l say this just to start off with on the basics. I am not in favour, I'm one of those who are not in favour of referendums. I don't believe it's our type of system of government.

I was only speaking on entrenched Bill of Rights but the way you can amend this by referendum and the federal government setting up the rules itself and plus it can spend millions of dollars on advertising, I don't agree with that Now with regard to the qu es tion of the referendum, that type, and saying well, we're going to satisfy the aspirations of Quebec, I would say Quebec is just as violently opposed to what Mr. Trudeau is doing, at least the government, I should say. Now the government is as violently opposed to what Mr. Trudeau is doing as the government of Manitoba.

But there are those, if you take the gallup poll, who say, "We favour entrenched rights," 91 percent of Canadians say, "We favor entrenched rights." But now if you asked me who are in favour of entrenched rights, do I favour referendum, I say no. I say we elect our representatives and those people study the ques tions and they make the decisions and if we don't like it, we defeat them at the polls. MR. WALDING: Mr. Baird, the question was not on referendums itself, or whether you favour them or not. The question had more to do with what is called the new feder alism.

Do you see thes e proposed change s in here as bei ng renewed fede ral ism , whatever that phrase meant? MR. BAIRD: Yes, and tha t's why I qu est ion it because I think we're more divided today than we were before this came out and before the Budget came out. it's all political. But I would say when they talk about renewed federalism, I think the country is more divided today than ever. So I cannot buy that All I am saying today, there is many things I would like to deal with in that proposed amendment but I think you take one point and my one point is entrenched Bill of Rights. But any questions, I'm open. MR.

WALDING: Thank you. No more questions. MR. CHAIRMAN: Mr. Mercier. MR. MERCIER: Mr. Baird, it seemed to me that you indicated you agreed with the decisions in the United States Supreme Court that were cited by Mr. Green in his submission previous to yours on the basis that in the Uni ted States under their Constitution, there is a division of powers and tha t the pro posed legislation affected the States' powers. Is that right? MR.

BAIRD: In a number of the cases that were cited, and that's why the Supreme Court struck it down, is my submission, is that Roosevelt was trying to take over state jurisdiction and make it federal jurisdiction when it was the question, it belonged to the States. That's my point. MR. MERCIER: You would agree, Mr. Baird, that we have under our Constitution in Canada, a division of powers between the federal government and the provincial governments.

Monday, 17 November, 1980 MR. BAIRD: Yes, definitely, and that's why we have entrenched rights already and we've taken it since 1867 to the court and we used to go right to the Privy Council. MR. MERCIER: Then you would agree, Mr. Baird, that civil rights are within the jurisdiction of the provincial governments. MR. BAIRD: No. Property and civil rights come within provincial but those civil rights are restricted under the peace order and good government clause and the question of a Canadian citizenship. My attitude is that any Canadian can move from Prince Edward Island to Al berta or to Manitoba.

There are th ose who would state that civil rights, they can restrict people buying farmland, a Manitoban can be restricted from buying farmland in Saskatchewan or P.E.I, I say no. You'r e coming within the Canadian orbit of a federal government and you've got to watch it there and I am violently opposed when a statement like that, that civil rights are completely provincial controlled. No sir, we have Canadian rights too.

And just as the freedom of information, freedom of press is a federal right; freedom of religion is a federal right decided when the Premier of Quebec, Dupl essis, tr ied to strike do wn the Protest ant minority and they said, "lt's freedom of religion." When Alberta, with their Alberta Press Act tried to strike down freedom of press, I'll never forget, Time magazine in Ontario was banned. Why? Because Time magazine criticized the Premier of Ontario. Un fortunately the case - Hepburn, yes, it was Hepburn - but to me there are those freedoms that are national. MR.

MERCIER : You don't think those freedoms were national in the Un ited States then? MR. BAIR D: I do bel ieve th ose freed oms are national but certain bills that were mentioned were decided on questions as to whether they came within the state orbit. That's what I am saying. MR. MERCIER: Wh ere th ere is reference to minimum wage cases, do you think that is provincial or federal or is it not both? MR. BAIRD: lt can possibly be both. Now if we're talking about United States, let me put it this way.

The federal go vernment of Un ited States has assumed great powers. lt only has those powers which the states gave to it. lt doesn't have any other powers and they have to look into their Constitution which says, "Wh at did the states give to the feder al?" But over the years, the federal have assumed mass powers which, accord ing to constitutional experts would say were hig hly improper, and Roosevelt was the one who led the great lead on that. MR. CHAIRMAN: Are there any further questions to Mr. Baird? Mr. Einarson. MR. EINARSON: Mr. Baird, I would like to ask to start off with, one question.

Is it your understan ding, I think it is mine, that all Premiers across Canada agreed with the Prime Mini ster that the Constitution 35 be patriated from Great Britain to Canada? Is that your understanding? MR. BAIRD: That is my understanding. That is in the recent one but as Mr. Gr een poi nted out previously, it was the provinc es that blocked it. Let's put it this way. lt's amazing. One day we think one way and we said, oh no, we don't want patriation because they were scared. Once it was patriated, we hadn't got an amending formula. And it was Quebec really, who blocked it because they saw the question.

They blocked the question of patriation because it was brought back. They could never get rid of the English speaking rights in Quebec. lt was in the Constitution and they didn't have the amending formula so they blocked it at that time until they have a veto power. I'll say this, if you go into it, this veto power of certain provinces and they will have it for all time, is disgraceful.

As long as you have 25 percent of the population now, Quebec and Ontario, and say fifty years from now, if Albe rta and Saskatchewan and Manitoba each have 25 percent, Quebec still has the veto power even though she may have lost it, or Ontario. But what I am saying, Mr. Einarson, the provinces do at one time say yes, we're in favor of patriation. I think everybody is in favour of patriation. But when we patriate it, how do we amend it? And that's the big hang-up.

Now this one proposes amendments by referendum and I find that frightening and especially when they control our taxpayers' dollars and can publ icize with millions of dollars and saying we've got to do this, by television, radio, and sign boards. MR. EINARSON: Second question, Mr. Chairman, to Mr. Baird. Is it your understanding that the Prime Min ister wou ld like to patriate the Constitution through an amended formula being done in Great Britain before it comes to Canada? MR. BAIRD: Yes, it's my unde rstanding that his desire is doing that and I go along with what Mr. Green says and I go farther.

We're taking it to courts but our courts have no control on Great Britain. They're Canadian courts and it's only a resolution of the House of Commons. lt's a reso lution of the House of Commons. it's not

an Act. it's resolved. lt's a resolution, so you haven't got

an Act. I question very strongly taking it to court, I really do. But any decision by our Canadian court will only be psychological because it has no jurisdiction in Great Britain. MR. EINARSON: Mr. Chairman, on the question I ju st posed ab out an amending form ula to the Constitution before it comes back to Canada, is that not one of the criteria that you just mentioned about Ontario or Quebec having a veto power? Is this not what the Prime Min ister has in mind what he would like to see happen, and is this not a real danger that I, talking to people in western Canada, not see a real danger in it? MR.

BAIRD: I think it's a frightening danger when it comes to the question as to how he is proposing to amend the Constitution and I say this, it's very frightening for all Canadians, very frightening for all Canadians. When you conside r you control the

Monday, 17 November, 1980 publ icity, the rules, and how you can get things passed , it's just mind boggling, what is going to happen in that regard, if you have a person in power who is acting improperly. But even though he is not acting improperly, I find it frighten ing. MR. EINARSON: Thank you, Mr. Chairman. MR. CHAIRMAN: Are there any further questions to Mr. Baird? Seeing none, thank you, Mr. Baird, for your presentation. MR. BAIRD: Thank you very much, Mr. Chairman, and gentlemen, and I appreciate being heard. MR.

CHAIRMAN: Earlier I indicated that there were three parties from out of town that would like to be heard today. The first one is Reeve Dennis Heeney from Brandon who says that he cannot appear at the Brandon hearings. Is Reeve Heeney present? MR. DENNIS HEENEY: Mr. Chairman. MR. CHAIRMAN: Would you like to proceed to the lectern, pl ease? Do you have copies of your presentat ion, Mr. Heeney? MR. HEENEY: Yes I do, Mr. Chairman. If I may, I would like to make a few remarks that are not in my text. MR. CHAIRMAN: All right, carry on. MR.

HEENEY: Fi rst of all I wish to take the opportunity to thank the government of Manitoba for this opportunity and I am only sorr y th at the government of Canada did not see fit to do the same. I would share the sentiments of some of the former speakers who feel that maybe it is somewhat belated but nevertheless it's better late than never. I think one philo sophical thing, or a couple that I would mention before getting into this presentat ion is that I believe there is no such thing as a free lunch.

I think that every body has to pay sooner or later, whether you 're talking about rights or whether you'r e talking about economic matters and the concept of something for nothing or the welfare state is simply a progression towards communism and I think that communism, whether it has been indicated by some people in the Un ited States that communism is being financed by financial moguls, not only in the Uni ted States but in Europe and if this is true and it has not been denied, then I see no difference to the gun at my head, whether it's a communist holding it or a capitalist.

Therefore my main concern is simply that the democratic rights of all Canadians be protected in our Constitution. Do you wish me to proceed then with my text? MR. CHAIRMAN: Yes, please carry on, sir. MR. HEENEY: Gentlemen, at the present time Canada has no Constitution even though - and I interject - even though we keep referring to the BNA Act as our Constitution. We have The British North America Act and this is

an act of British parliament. There are many arguments in favour of retaining this system, our traditional ties with the British Commonwealth and the monarchy. But since 36 our relationship with both has been relegated to that of a formal role only then perhaps it is time that we had a Constitution written by Canadians and for Canadians. it's vitally important however, that first of all, all the people of Canada have an opportunity to be actively involved in the drafting of this document since it deals with basic rights and principles.

The fact that these issues are fundamental to democracy places the whole matter of constitutional reform above party politics. 2. We must determine what a Constitution should do or should not do for us, i.e., should it replace some of our political system or should it simply refer to

interpretation of the law? 3. We must agree to an amending formula that will ensure that in the future the basic rights of all Canadians are protected in a manner which clearly indicates a definition of democracy that is acceptable to all Canadians. What then is this definition of democracy? The most widely used definition was expressed by Abr aham Lincoln. He said , "G overn ment of the people, by the people, for the people." According to Winston Churchill this still remains the sovereign defi nition of democracy.

Ho wever, my per sonal favorite is John Gaylesworthy who quoted that "The measure of a democracy is the measure of the freedom of its humblest citizens." Now democracy in practice often falls short of its idealistic objectives but it should not however prevent us from continually striving to improve this system. Events in recent majority federal governments indicate that in fact, democracy and the rights of people are dimi nishing and I'll gi ve you some examples. 1.

The present Prime Min ister is seeking patriation of The BNA Act with an amending formula without the una ni mous cons ent of parl iament and the provinces. This has not been done in the past and puts the British parliament in an awkward position and forces them to take sides. Such a thing should not happen and need not happen if democracy were allowed to function to the extent that the people of Canada approached the British government only after they had reached agreement. 2.

After the 19 79 and 1980 federal elections, both go vernments fou nd thems elves without representation in certain areas, Quebec in 19 79 and western Canada in 19 80. Both times the Prime Min istgers appoi nted defeated candi dates and members of rejected political parties. This sho wed their disdain for the people who had exercised their democratic rights and elected people of their choice. In my es ti mation this is a flagrant abus e of democratic rights. 3.

Federal and provincial politicians are continually making conflicting statements on various subjects, but in all cases they claim to be speaking for the people. On matters as fund amental as the constitution and democratic rights, then no one can speak for that individual but himself. 4. The present system of resprese ntation by population has resulted in a majori ty federal government in which on e-half of this countr y geographically has no representation. 5. The present federal government has authorized the spending of up to six million dollars of taxpayers

Monday, 17 November, 1980 money to promote a constitution formulated by one indi vidual without consultation with the people of Canada, and it's rather ironic tha t th ose of us appearing today are doing so at our own expense because we have to oppose the views taken by the Prime Mini ster. 6 . The Quebec Referendum was validated by the Prime Mini ster and the Leader of the Opposition.

The people of Quebec were promised a better deal if they rejected sovereignty association, yet there has been no suggestion that the people of the other nine pro vinc es could have the same choice. lt is discriminatory to allow Que becers the right to decide their future without allowing the people of the other nine provinces the same option. In additi on, the results of that referendum have been misinterpreted by both politicians and media.

The actual vote was 60-40 in favor of federa lism, but it must be recognized that 20 percent of the voters in Quebec are English speaking and most certainly would not vote for something that could deprive them of their language rights. Now if this 20 percent are not counted the result is 50-50, with those voting no doing so because of a promise from two political leaders, who had no right to make those promises without the agreement of the other nine provinces. Now, there are infini tely more examples of an eroding democratic system.

No doubt a portion of this is attributable, and I think a large portion, to an apathetic and ill-informed electorate. This does not mean, however, that the present actions by those in responsible positions is acceptable. In regards to an amending formula, it's a very important part of this new Constitution, and since we are dealing with basic principles rather day to day legislati on, such a formula will be little used and must be quite rigid to protect the people from majority governments who make changes, which though suitable to them are not wanted by a large percentage of the population.

This formula should continue to be one of unanimity, which has worked well for 113 years. This unanimity should be between the federal and provi ncial go vern ments, or on the una nimo us cons ent of Parliament in a free non-party recorded vote. The Language Rights: English is the universal language, and it has not yet been practically demonstrated that the benefits of having two official languages offset the animosity and inconvenience that it has caused. Quebecers of French origin are not unanimous in their concept of a workable dual sys tem .

In deed , the present Government of Quebec is opposed to having The Offic ial Languages Act included in a new Constitution. I would support langua ge rights as stated in The BNA Act only insofar as they apply to the use of French in Parliament and the federal courts. In all other instances Englis h should, by tradition and pract ical ity, be our only official language. I also support the right of each province to declare as their official language whatever one the majority of their residents favor.

If there is going to be such a change as suggested by the Prime Mini ster, then it should occur only when the majority of Canadians have so decided. They should accept or reject the proposed change by a separate referendum held in each of the other nine provinces, and not a national referendum such as the 37 Prime Mini ster has suggested. To do otherwise is undemocratic and totally unacceptable. I have no objections to the

section on legal rights. They are desirable and inhe rent in a democratic society, which presumes in nocence until guilt has been proven, but we must be careful, however, that justic e is no t ob structed by bec oming overly protective. The

section on democratic rights, in my opinion, is the most imp ortant and sig nific ant part of this Constitution. If democracy and the basic framework for governments to operate in are ensured then human and individual rights will be protected. This can best be achieved by including some basic procedural rules for governments in our Constitution. If they are omitted then we could very well end up with a system similar to that in the USSR. As a people we must insist that included in this

section are changes that will limit the powers of governments and particularly individuals within those governments, such as the Pr ime Min ister and the provi ncial Premiers. To be truly a free democratic society we must have some protec tion from arrogant and di ctatorial major ity go vern ments. This can be achieved by including some checks and balances into our present system, and I should like to suggest the following changes which may help achieve this: 1.

The division of powers as is presently laid out in The BNA Act is quite satisfactory to me, but there should be a more definitive role for the federal government in resource control. This role will be decided by consultation between federal and provincial governments. If there is now unanimous agreement on the principal of equalization payments, then it would seem in keeping with this to consider that if Alberta oil belongs to Al berta, why then should not Canadian oil belong to Canadians.

This is simply to say tha t equali zat ion means that the "have" provinces are to help the "have nots", and if this is the responsibility of the federal government then they must have some access to resource revenue which is our prime source of financing. 2. Federal and provincial elections should be held every four years instead of five and on a pre determined date stated in the Constitution and not at the whim of the go verning party. If and when minority governments are elected, they should be required to fill out their term the same as majorities.

History has shown that some of our most productive governments, as far as the people are concerned, have been minorities. 3. Public disclosure of campaign funding. Now this may not be apt for inclusion in the Constitution, but I make mention of it because it seems that no political party is in favor of this kind of legislation even though in the past they have promised to do so. Prime Mini ster Trudeau, prior to the 1972 election, promised in his campaign that he would include this kind of legislation if he was elected and it's never happened, and the opposition parties have never insisted that it do.

If political parties have nothing to hide, then let's have this legislation . We need prote ction from go vernments who may allo w themselves to be controlled by large corporations and financial institutions who have financed their campaigns. Since politicians will not deal with this matter in the proper way then we should insis t that it be in the Constitution.

Monday, 17 November, 1980 4. Proportional representat ion. The 1980 election results, and to a lesser extent 1979 results, indicate that repres entation by population must be reconside red as the status quo in determining the make-up of governments. We need proportional representation or something simila r so tha t all regions and all special interest groups have an oppor tun ity to pla ce their concerns before Parliament and be assured of a fair hearing. 5. We should have the right to elect not only our MP , but also our Prime Mini ster.

Now an alternative to this would be to elect at large the Speaker of the Ho use, because someone in Parliament must be accountable to the people, and that isn't happening in the present party system. We should also move to red uce the powers of the Prime Mi nis ter and provincial Premiers so that we move away from the present dictator concept and put government back to Parliament where it belongs. it's interesting that municipal governments who receive their procedural direction from provincial governments are far more democratic, that is in my opinion, than either of the two senior levels.

And this is largely due to the non party system, which allows elected representatives to vote according to the wishes of their constitutents and/or their conscience. The head of the council acts more in the role of an adviser, rather than the principal legislator. 6. We should abolish the Senate as it presently exists, and replace it with one that has equal representation from each province. These members should be provincially elected or appointed for the same term as the MP 's, and this new Senate would have power to initiate, amend and veto parliamentary legislation.

They would serve as a check and balance in the system. 7. The Supreme Court judges should be appointed, one from each province and their term should be for a limited time, but not necessarily four years, it should not be for life. 8. And finally, the most important of all, a special clause must be included, and I have second thoughts about this, in the new Constitution. This clause would allo w 15-20 percent of the electorate of a constituency, province or the country as a whole to, by petition demand and receive an election of an MLA, MP, or provincial or federal government.

Such legislation would seldom if ever be used, but it's existence would act as a deterrent for irresponsible politicians. Surely the calling of an election by the electorate is not less democratic or reasonable than the present system which allows politicians to go back to the people because they simply are dissatisfied with the democratic choice that was made by those people. The classic example of this situation was the 1979 and 1980 Federal Elections. In 1979 the politicians were not happy, at least some of them, with the results of that election, so they demanded that the people vote again.

And yet in 1980 when the results showed that the majority was almost one-half of that country having no representation in the government, there appears to be nothing that the people can do to correct this situation short of separa tion, and surely the power of recall in the hands of the people would be a more sensible and democratic alternative. 38 In conclusion, I would stress once again that in my opinion, which I believe is shared by the majority of Canadians, we would see our new Constitution serving us best by protect ing us from dictatorial governments, and I would insert in here, I would rather have the power of dictatorships be with the governments than with the courts.

I would certainly agree with Mr. Green on that, rather than enabling these same governments to continually gain more and more control over our lives. I would like to clos e with two appr op ria te quotations referring to the subject.

One from the former British Prime Mini ster, William Gla dstone, "The unity of a state is inevitably strengthened and promoted, not retarded, by granting local autonomy to its component parts and that over-centralization creates hazards and brings ultimate destruc tion ", and from Woodrow Wilson "The history of liberty is the history of limitations of governmental power, not the increase of it." If we truly believe in a free democratic system, then let us return power to its rightful owners, the people, and let us further enhance that meaning by placing these objectives in a new Constitution.

In this way we will not only declare to the whole world our belief in democracy, but we will leave to our children the most precious of all legacies - the freedom of choice. MR. CH AIRMAN: Mr . He ene y, will you permit questions? MR. HEENEV: Yes. MR. CHAIRMAN: Mr. Parasiuk. MR. PARASIUK: Yes, I just want to clarify what you mean on Page 3 when you'r e talking about language rights, are you saying that the English minority in Que bec should not have any mino rity langua ge rights.

Is that what you are saying on Page 3 when you say the provinces should be in a sense unilingual, and tha t would be determ in ed by a referendum held in each province, is that what you're saying? MR. HEENEV: Yes. MR. PARASIUK: So that there would be no English minority rights in Quebec. MR. HEENEV: If the people of Quebec decided that way that's true, and the same would apply to every other province. MR. PARASIUK: Okay, I just wanted that clarified. The second point was on Page 4.

Are you saying then when you 'r e talking about you r division of powers, you are saying that the federal government should have a role with respect to resources; are you then saying that the federal government should have a role in setting oil prices, and in distributing some of the wealth they der ive from oil between provinces? Are you in favour of that position? MR. HEENEV: I suppose in general terms I would say yes, but that's dangerous to be generalizing in that regard, but I would rather say that the federal government should have some jurisdiction in a

Monday, 17 November, 1980 central form, but that that pricing and arrangement be arrived at by agreement between the provi�cia! governments and the federal governments. MR. PARASIUK: Right.

Okay, then that means you wouldn't be in favour of the position which seems to be adopted by Premiers Peckford and Lougheed, who say that they want complete total control over resources in all facets, and for example, the Premier of Albe rta would like to set the price of oil uni laterally, and since he really doesn't set the price of oil but the sheiks in the Middle East set the price of oil, that would mean that the price of oil would be set by the sheiks of the Middle East, and in a sense confirmed and put into effect by Premier Lougheed from Alberta.

Do you agree with that particular position that has been taken by the Premier of Alberta with respect to the underlying issue in the whole constitutional debate, mainly power between the provinces and the federal government? MR. HEENEY: I think you 'r e talking about two things , the pricing, and I think the pricing should be left to the free market system in the world, supposedly free market, but division of powers, I'm opp osed to the provi nces having compl ete jurisdiction over the resources. I would think that as a coun try we cannot exist un less that's shared federally. MR. PARASIUK: Thank you. MR.

CHAIRMAN: Mr. Blake MR. BLAKE: Dennis, you mention in here tha t resource revenues was the prime source of financing. That could be, I'm not sure of that. I felt that it might be some other source, such as income tax, it might far exceed that, but I just wondered if you had some basis for that, or if it was one of the prime sources maybe? MR. HEENEY: Typing error, it should not be "the" it should be "a". MR. BLAKE: Yes, okay that's fine, I thought maybe there was something there that . . . MR. HEENEY: But it is a principle source. MR. BLAKE: All right, one further question.

Are you in favour or opposed to entrenching in the Bill of Rig hts the rights and freedoms that have been suggested? MR. HEEN EY: I believe that if the principle of democracy works in Parliament tha t it's no t necessary. I would prefer it to rest with Parliament where it can be changed to the will of the people rather than to have it in a Constitution because it's been poi nted out that the Russians have the most probably eloquent Constitution in the world and it doesn't mean a thing.

The United States have a very eloquent Constitution, and they still have ghettos, and they still have problems with poverty, and they still racial discrimination, after what, 200 years, so ob viously Constitutuion do esn 't solve it. If the co llectiv e will of the people isn't ther e the Constitution is nothing. 39 So I think we're over-emphasizing the rights of Cc�Gtitution, except when we put down what you may or may no t do. As long as there's no Constitution fine, but if it becomes very detailed, then it becomes very dangerous, whatever it says. MR. BLAKE: Thank you very much, Mr. Heeney. Thanks, Mr.

Chairman. MR. CHAIRMAN: Are there any further questions from members of the committee? Seeing none, thank you very kindl y, Sir, for your presentation. Mr. Desjardins. MR. DESJARDINS: Mr. Chairman, may I make a suggestion before we proceed. I wonder if we could go on and priorize or number the people that will be appearing to help them out this afternoon, to see what we can do if they are here. MR. CHAIRMAN: To you, Mr. Desjardins, and other members of the committee, there are three others that I have had indicated to me that are from out of town, a Mrs. Edna Graham from Pina wa, a Mrs.

Friesen from He ad ing ley, a Mr. Lorne Pa rker representing the Farm Bureau who resides out of the city of Winn ipeg. Are any or all three of those persons present? I see one. Is that Mrs. Graham or Mrs. Friesen ? MRS. EDNA GRAHAM: I'm Mrs. Graham. MR. CHAIRMAN: All right. MRS. GRAHAM: If I could ask the commit tee to continue sitting perhaps for 10 minutes, my talk is very short, it only takes about three minutes. MR. CHAIRMAN: We were planning to sit till 12:30. MRS. GRAHAM: Good. MR. CHA IRMAN: All rig ht.

To you with your question, that is the next three that I was proposing to entertain and then I would go to the two others that asked that they be heard today and that is a Mr. Jeffrey Plant and Mr. Vie Savino, representing the Law Union of Manitoba. They have requested today to be heard and that they could not be heard tomorrow. So that would be my next five. MR. DESJARDINS: Mr. Chairman, then would it be the intention to follow those as they are on the list? MR. CHAIRMAN: Yes, I would follow the list as is. Mr. Kovnats. MR. ABE KOVNATS (Radisson): The last of the list you have a Mr. Kenneth Emberley and Mr.

Walker, who also prefer to present on the 17th, which is today. Would they be the next two in line? MR. CHAIRMAN: All right. They are after 4:00 p.m., I believe. A MEMBER: Right. MR. CHAIRMAN: Yes. Well, when we get to 4:00 p.m., let's see if we've gone through the five that

Monday, 17 November, 1980 wish to be heard today and then we can perhaps go to those persons. Is that agreeable? MR. DESJARDINS: We're not making a decision. I think that if you'r e saying that you're going to go with Mrs. Graham, Friesen and Lorne Parker then you follow the list but then you are saying that it's 4 o'clock. MR. CHAIRMAN: There are persons tha t have asked to be heard. MR. DESJARDINS: So th ese people migh t be waiting here till 3:30 or so and then you jump them and go to the one at 4 o'clock. I think we should decide that today because it's no use having them wait all day. MR.

CHAIRMAN: I' m open to suggestions from members of the committee. I know it's very very difficult to place one party ahead of another one and be fair to all, but the normal practice is that we try to look after out-of-towners first and I have listed five now. Let us see if the committee would agree to this suggestion that the five that I have listed that have asked for today and when we have concluded with those five, let us see what the time of the day is and where we sit at that particular time. How is that? MR. DESJARDINS: Mr.

Chairman, I have no objection to the five and after that I think maybe we should follow this, follow the list the way we see it now including the second page, they would come after the first page because it's not fair at 4 o'clock and say, oh, we quit. These people have been here and now we go to Page 2. This is what I don't want to see happen. MR. CH AIRMAN: I can see your point because there are people who . . . A MEMBER: Those are after four, that's all he's sayi ng. MR. DESJARDINS: Tha t's right, but the others should follow. They shouldn't lose their place. MR. CHAIRMAN: To Mr.

Kovnats, there are people that are listed on the list that are not in the first five that I've read off that I know that are present and what Mr. Desjardins is saying is that all of a sudden at 4 o'clock, are you going to deny them the right if they were to be the next person and go to that list that is requested, speak ing privileges between four and five. MR. DESJARDINS: Because it migh t be, Mr.

Chairman, if I add also, I think that the committee has decided that if in two days we're not finished we will come back to Win nipeg and it might be to accommodate these people that we might have an evening sitting because certain people apparently can't be here during the day, that's the way I take it. But I mean we shouldn't disturb today and tomorrow and follow the list. Okay. MR. CHAIRMAN: it's my opinion that some time tomorrow we will decide whether additional Winn ipeg 40 hearings are necessary and at what time they should be held. MR. DESJARDINS: Right. MR. CH AIRMAN: All rig ht, Mr s. Graham. Mr.

Kovnats. MR. KOVNATS: I would hope that maybe we could have some ind ication as to the order in which tomorrow would be followed. Would the ones not heard today that are listed as November 17th be heard in the order that they are listed on the 17th start tomorrow on the 18th? MR. CH AIRMAN: With the exce ption tha t the French translation, Mr. Forest would be first and others that have asked, that there is the Societe franco-manitobaine. MR. KO VNATS: Tha t would be my recommendation, Mr. Chairman. MR. CHAIRMAN: Because Mr.

Mercier has said that it does take some time to arrange for the equipment and it is expensive. We don't want those persons involved just to be sitting here doing nothing. So that would be the way we would start tomorrow morning and then we will go back to the list as to where we finished off. MR. KOVNATS: That's acc eptable to me, Mr. Chairman. MR. CHAIRMAN: Is that agreeable to the members of the committee? All rig ht, Mrs. Graham from Pinawa. Do you have copies of a presentat ion? MRS. GRAHAM: Yes, there are some copies here. I don't know whether there is enough. There are 12 or something there. MR.

CHAIRM AN: That should be sufficient. Mrs. Graham, carry on, please. MRS. GRAHAM: Yes. I would like to say this is just a small voice from a Canadian and it won't match these learned briefs that you have been listening to up to this point, but first I would like to thank this committee for giving me this oppo

Document details

Collection	Manitoba — Debates (Hansard)
Citation	31-5-sro2
Type	hansard
Volume / chapter	31st 5th hansardpdf sro2.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	8f67fbe498d17e57843630714c773412569c6ffb

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