Wednesday 21 August 1991

Tom Kierans

Canadian Ethnocultural Council .

Canadian Committee for a Triple E Senate

Task Force on Canadian Federalism .

Bryan Schwartz

Catherine Frazee


Acting Chair: Drainville, Dennis (Victoria-Haliburton NDP)

Vice-Chair: Bisson, Gilles (Cochrane South NDP)

Curling, Alvin (Scarborough North L)

Eves, Ernie L. (Parry Sound PC)

Gigantes, Evelyn (Ottawa Centre NDP)

Harnick, Charles (Willowdale PC)

Harrington, Margaret H. (Niagara Falls NDP)

Malkowski, Gary (York East NDP)

Mathyssen, Irene (Middlesex NDP)

Offer, Steven (Mississauga North L)

O'Neill, Yvonne (Ottawa-Rideau L)

Winninger, David (London South NDP)


Carter, Jenny (Peterborough NDP) for Ms Gigantes

Marland, Margaret (Mississauga South PC) for Mr Eves

O'Connor, Larry (Durham-York NDP) for Mrs Mathyssen

Ruprecht, Tony (Parkdale L) for Mr Offer

White, Drummond (Durham Centre NDP) for Mr Winninger

Wilson, Gary (Kingston and The Islands NDP) for Ms Harrington

Clerk: Brown, Harold


Kaye, Philip, Research Officer, Legislative Research Service

Murray, Paul, Research Officer, Legislative Research Service

The committee met at 1008 in room 151.

The Acting Chair (Mr Drainville): First of all, I welcome the viewers from across Ontario who have tuned in to hear the deputations that are to be made today before the select committee on Ontario in Confederation.


The Acting Chair: I would like to welcome you, Mr Kierans, before this committee today. I wonder if you would just make a brief introduction and indicate who you are representing.

Mr Kierans: Thank you, Mr Chairman. I am Tom Kierans. I am the president of the C.D. Howe Institute, which is a national public policy institute engaged in the analysis of public policy issues of the day.

The Acting Chair: As you know, you have half an hour. I hope that you will provide us with a little bit of time to ask you some questions at the end of that.

Mr Kierans: The clerk suggested that I take about 15 minutes, which is kind of difficult with an issue of this size. I will do my best to hold it to that. The clerk also suggested that it would be useful if I kept my remarks around pages 6 and 7 of the questionnaire that you distributed. I will do that, although I am quite happy to answer any questions to the best of my ability that the committee may have. Let me just put in one qualifier. At the institute we are examining these issues in very great detail. We expect to have completed our analyses by some time late in the fall. Anything I say here is certainly subject to learning better as the debate deepens and broadens and becomes more sophisticated.

Let me open by saying that from my perspective the failure of Meech Lake came at arguably the worst possible time for the country. It has led to an enormous distraction at a point in time when the challenges for the country from an economic viewpoint, which is the angle of perception through which we filter things at the Howe, are very great. Throughout the 1980s our debt due to federal fiscal policies and the debt due to gross domestic product ratio just shot right up. Our performance was the worst of any one of the Organization for Economic Co-operation and Development countries. As a consequence, a huge component of our annual budget is devoted simply to servicing the debt.

We have also been through a very difficult time because without a complementary fiscal policy, monetary policy has borne the burden of dealing with inflation. This has been very costly for Canadians in terms of interest rates, in terms of the exchange rate, and it is unfortunate from that point of view.

Taxes have also been rising as a consequence of our desire to provide our citizens with appropriate public services and the inflationary components and the dynamic components within them. We are now at the point, however, where we are looking at tax revolt from coast to coast. Taxes are punitive and this also constitutes a challenge.

At a time when national unity should be foremost in our minds, it is ironic and indeed regrettable that the fiscal flexibility of the federal government has really never been weaker. This is extremely important in terms of holding the country together and providing our citizens from coast to coast with a fair measure of opportunities.

We also signed the free trade agreement and that led to a whole series of adjustment problems throughout the last part of the 1980s. This, combined with globalization and competitiveness issues, really has meant that we ought to have been focusing, in terms of public policies, on human capital formation. It is my contention that, around the world, financial capital will chase human capital. It is my contention that we have the finest stock of human capital in the world. It is also my contention that if we are to remain competitive and continue to enjoy the levels and standards of living that we have enjoyed and improve them for future generations, the quality of human capital has to be raised constantly. Job skills, upgrading programs -- these are the kinds of issues that we should be concentrating on.

The Meech Lake issue has skidded us offside, however. The issue is pitting multicultural and aboriginal visions of the country against the vision of the two founding nations. It is pitting a centralist vision of the country against a federalist vision; it is pitting individual rights against collective rights, and it is subsuming economic imperatives under legal issues, as is indicated, for example, by Mr Clyde Wells's comment that the Constitution was too important to be left to economic considerations.

It has also revitalized some hoary myths. One of the pop words of the day is "asymmetric" federalism. We have always had asymmetric federalism. Quebec has collected its own personal income tax. It has designed its own personal income tax base integrated with its social policy programs, avoiding welfare traps. Nobody else does that. That is a form of asymmetric federalism. They have their own civil code. They have always had it. They have opted out on various programs such as national pensions and so on. The focus on asymmetric federalism as if it was somehow a new beast is rather foolish.

Another hoary myth that has been raised is the issue of equality of the provinces. I for one do not know where it is written that Prince Edward Island has the same say in the national affairs of the country as do other regions. I also do not know where it is written that the Maritime provinces can govern themselves in a very chaotic kind of manner and rely on subsidies from the rest of the country to do it. So equality of the provinces is distinctly a myth that has to be dealt with.

The third and final myth which I would deal with is the notion that equality of opportunity, of providing our citizens with safety nets from coast to coast, means that we have to give it to them in place, which is to say that in Newfoundland you can work 10 weeks and go on the dole for 49 weeks and you do not really have to go across the country and look for a job. I think as Canadians we have to be in a position to afford all of our citizens opportunities, but I do not think we have to afford them opportunities in any particular outport in which they might work.

When one goes through all these kinds of issues, I find it useful to trisect them, because it is complex and it is overlapping.

The first trisection deals with what I believe to be Quebec's legitimate aspirations. When I speak of Quebec in the present context, I am talking about the francophone population which is resident within the province of Quebec. Most Canadians seem to be prepared to acknowledge that this population constitutes a distinct society, but they are not prepared to acknowledge that the province of Quebec is the representative of that distinct society.

The reality of the matter is that the francophone population of the province of Quebec has captured the trappings of the government of the province of Quebec. The reality of the matter is that the francophone population of the province of Quebec has every reason to feel concern about its cultural and linguistic aspirations. It has a population growth rate of 1.5%. It takes 2.1% just to stay even. They are seriously concerned about being swallowed within a North American environment and they look to their government to promote and to preserve their distinctiveness, most particularly in the area of culture and linguistic issues.

These to me are absolutely legitimate aspirations for that society, but what we are running into in this country -- and one of the factors that led to the failure of Meech Lake, regardless of a final-second holdout -- is the fact that anglophones, English-speaking Canadians in the rest of Canada, do not see it that way.

What we are doing as anglophones, of course, is putting up our notion of charter rights against the Quebec notion of charter rights. We are pitting individual rights against collective rights. It is my view that it is a conceit for one liberal, pluralistic, democratic society to seek to impose its notion of the equilibrium point between collective and individual rights on that of another liberal, pluralistic, democratic society, but that in fact is what we are doing in Canada today.

We are going to have to recognize the distinctiveness of Quebec or else we are going to force it out. I think anglophones in the rest of Canada are going to have to understand that this is not the referendum of 1980. This is not economic blackmail against Quebec. The cost to all of us of Quebec being forced out because the rest of us were not prepared to recognize its cultural and linguistic distinctiveness would be colossal. Our standards of living in the rest of Canada, not just in Quebec, would in my judgement be impacted to the extent that they were during the Great Depression in the 1930s. So I think people should focus on this conceit that I am talking about. I think they should focus their minds wonderfully, because a great deal is at stake.

In so far as the rest of the issues are concerned, the federal government has correctly called this latest round the Canada round. This is quite true, because the issues are Canadian issues, they are not just Quebec issues. These are the issues associated with the division of powers, the duplication of programs, the debate over national standards.


They are also issues that have to do with how we treat our aboriginals, and while we are slow in coming to the understanding that for good and bad reasons we have treated them dreadfully, paternalistically, and that our actions have been nothing to be proud of, the solution will be a long time in coming, much longer in terms of coming than could be the Quebec situation, not because Quebec has put an ultimatum on the table but rather because the issue is incredibly complex and we have to determine what the aboriginal rights are, both before the courts and through negotiations, on virtually a band-by-band basis across the country. That is going to be time-consuming indeed.

In so far as the division of powers is concerned, there is another myth somehow that we are going to have to decentralize the country if we are to take into account all of the demands of Quebec, and that all provinces would have to be the beneficiaries of this same division of powers. The reality in my mind is that we are not talking about centralization versus decentralization; we are talking about recalibration, we are talking about efficiency, we are talking about measuring the extent to which we are overgoverned and overlapped and we are talking about analysing which programs can be run at what levels most efficiently.,

Within that context, certainly since before the Second World War we have moved from the decentralized society to a very centralized society. The pendulum comes and goes, and goes back and forth. It need not be a constitutional issue. It need not be etched in stone. These issue have been handled through fiscal negotiations between the federal and the provincial governments for an extended period of time.

I think that pragmatism is going to have to be the order of the day in dealing with the second of the trisecting issues I am talking about. I will say, rather controversially, that I do not think we need the federal government in national health care mandating national standards to sustain what has become a national value which would be preserved, in my judgement, at the provincial level if it were returned to that level.

On the other hand, job skills training and upgrading, argued from a constitutional point of view, is a provincial responsibility. I again would tend to regard the federal government as having a very major role to play. So when we talk about recalibrating, we are talking about doing it pragmatically so that we can deliver to our citizens the most efficient government possible, so that we can compete in a global environment with the greatest weight that we can muster among ourselves.

The third component of the trisection is essentially the demands of the Quebec élites. We in English Canada have had that before, not from Quebec but from ourselves during the nationalist surge of emotion during the 1960s. The élites were the beneficiaries of that, and ordinary people bore the cost.

Similarly, for those of you who have read the Allaire report, which was prepared by the Liberal Party of Quebec, one can see what the Quebec élite demands are. But I firmly believe that if Canadians are prepared, in my trisection, to recognize this distinctiveness of francophone Quebec and the obligation of the government to promote that distinctiveness, and if under the second trisection of the issue we are prepared to reallocate powers according to efficiency in the interests of all Canadians, then for the third trisection we just say to the Quebeckers, "The answer is no." Just say no.

Canada does in fact stand for something, and I believe that Quebeckers in a referendum will recognize that and vote overwhelmingly in favour of remaining within the union.

I myself am not overly concerned about the desire of some Quebeckers to separate. I think the transition risks and the transition costs would be colossal both for Quebec and for the rest of Canada. I do not think anybody is willingly going to take that kind of hit if the distinctiveness is recognized, on the one hand. But on the other hand, simply because the costs would be very great, we are not into an economic blackmail situation here.

The 1982 patriation of the Constitution and the establishment of the charter was devastating from the point of view of modern Quebec. It makes it very difficult to recognize Quebec's distinctiveness. I believe that once we have done that, the rest will fall into place and the transition risks and the transition costs will evaporate.

Those are my opening remarks. I will attempt to answer any questions you may have.

The Acting Chair: In that 16 minutes, you covered a great deal of territory. I thank you very much for coming today and presenting that.

Mrs Marland: I really enjoyed your presentation, Tom. It is true that you covered a lot in a very short period of time. I found it very interesting when you were referring to safety nets in place. I am substituting on this committee for a few days in these three weeks, so I do not have the benefit of hearing all the presentations since February and I do not know how many times, if at all, that has been mentioned before. I wonder if you would like to elaborate -- recognizing how employment opportunities vary from time to time in different economies for different reasons, whether it is fisheries in Newfoundland and so forth -- on how governments could deal with, by necessity through economic downturns, the relocation and retraining of people with special skills in one area.

Mr Kierans: This is, to my mind, the biggest challenge that we as a country have and the most complex issue, so my answer is of necessity going to be a little bit longer than would normally be the case. We have a problem in this country which I often characterize as being a problem of the fact that we no longer have enough German grandmothers or Jewish mothers to provide the incentive for our young people to go to school and to understand and develop an education and a work ethic. What this means at the end of the day is that society has got to figure out a way of letting people live to fight another day. This is crucially important. It means that when young people come out of high school, in many cases virtually illiterate and unskilled, and then find out what is going on out there, we have to have the means whereby we can reintegrate them back in terms of job skills and job upgrading.

Many of our industries from coast to coast are undergoing, not because of the free trade agreement, tremendous adjustment problems. I will give you an example. The fishery industry on the east coast of Canada is essentially a social industry; it is not an economic industry. The cost of supporting that many people in that industry is no longer a burden that can be borne by society. Philosophically, it is also no longer a burden that should be borne by the individuals themselves, because their dependency is increasing as each year goes by. What we have got to do is to set up systems -- and these exist in Germany, in Scandinavia and in a variety of other places -- in which people are trained into the new skills that will enable them to relocate at job level.

That is why I made at the beginning, in my opening remarks, that very controversial remark about how maybe this is a federal responsibility. Labour mobility and giving people equal opportunities from coast to coast may argue that the federal government would be the best agency for starting what I would think of as a new nation-binding program. Instead of trying to hold on to all the programs which they helped to start, and correctly so, in the beginning, such as national health care, they might get out of some of them and start a new one. This would involve integrating with community colleges; it would involve integrating with industry; it would involve very powerful training techniques. People would not fall into welfare traps under a new system whereby you do not get unemployment insurance if you are being retrained, for the sake of example.

I found it very interesting in the questionnaire that everything was about people's rights and nothing was about people's obligations. Nothing was about people's obligations to try to become gainfully employed. Once society offers people those advantages, which I believe it should do and do more thoroughly than is now being done, then I believe people have the obligation to go to where the jobs can be found. I am not sure that is a satisfactory answer. I told you it was a very long answer, and it is even more complicated than that.

Mrs Marland: I appreciate it. Thank you.


Ms Carter: I have two aspects I want to raise. You gave us a pretty thorough analysis of the situation. You say we should recognize Quebec's distinctiveness and just accommodate that into the government, and you are saying that is already done to a large extent, that we have a symmetry already in the government. But at the moment we do have problems, or else we would not be into all of this. So how do you see the recognition of Quebec's distinctiveness being incorporated into government at the federal level in a maybe more satisfactory way than we have at the moment? Maybe I could come back to the other point afterwards.

Mr Kierans: I do not see it as a federal issue; I see it as a provincial -- province of Quebec -- government issue. When all of the falderal is cut aside, what it really means is that if you live in the province of Quebec and you do not like having to speak French, that is life in the big city, and if we are not prepared to cross that Rubicon, then we can just forget the whole thing. That in a nutshell is what it comes down to.

Ms Carter: But then there is the question of federal members of Parliament voting on issues that in fact are Quebec's responsibility, so that they are deciding for other provinces on issues that they are not sharing in. Do you not see that as a problem?

Mr Kierans: I understand where you are going, but that is not how my model would work. I would simply recognize the right of the government of Quebec to promote, as was in the preamble of Meech Lake, the cultural and linguistic distinctiveness of the province of Quebec, period. That does not go into removing Quebec federal MPs from being able to vote on all of the other policies. It just reinforces the cultural character of the province of Quebec.

Ms Carter: Okay. The other thing is that you are saying people should be relocated from Newfoundland outports and so on. This is an enormous issue. I do not think we can really thoroughly go into it, but I think I would disagree with you on that. I think if fishing does not pay when you are an in-shore fisherman in Newfoundland, it is not because that is basically a bad way to live, economically or in any other way; it is because the big guys have come in with trawlers, with all their sonar equipment and so on, and scooped up the fish to the point where stocks are not being maintained. So I do not think the in-shore fishermen are the problem there.

I think we have to look at the whole question of not taking more from nature than it can supply. If that kind of question were solved, then people could live in these places and support themselves and be economically sufficient even when they are living on welfare for part of the year. Actually, the way of life is a frugal one, a sensible one, and really does not make a lot of demands on the rest of the world and is less subject to some of the ups and downs that the rest of us feel. If this can be maintained, I do not think it is such a drain on us as maybe we might think. After all, if you preserve this kind of lifestyle, this kind of place, it is something tourists can go to and enjoy. I think there is going to be a great future for wilderness, as there is less and less of it on this planet, and we need those people who belong in those places to stay there.

Mr Kierans: I respect your opinion. I disagree with it, and I do not think we have to take the time of the committee.

Mrs Y. O'Neill: I thank you very much for your presentation. I also want to make, I guess, a more blanket endorsement of the work of the institute. I think it certainly for quite a long time now has been one of the resources that we are following closely, and we do keep in touch with your work.

I am glad you used the word "myths." I too feel that myths are being inculcated into some people's minds. Being married to a Maritimer, however, I would have to be more gentle in some of your myths than you are.

Have you done impact studies that are very detailed or are quite focused? We seem to be having a lot of trouble finding those documents within our own province and beyond.

Mr Kierans: Impact studies on what, may I ask?

Mrs Y. O'Neill: On what separation would mean, the kinds of things you are suggesting would mean, that kind of thing.

Mr Kierans: Yes, we are doing those studies. Those studies will be progressively released as the summer and the fall go on, and they will be very detailed studies.

As a preliminary and very personal observation or conclusion, if you would, it is my view that the cost would take place around the currency, around foreign creditors' view of the country and around the impacts on the costs of capital that we would have to go through. It would also take place in terms of a flight of capital from the country. I am not talking about Quebec; I am talking about all of Canada. I believe that, as a result, our ability to sustain the nation would be much diminished.

It is my judgement that there are only two areas of Canada that can go it alone in the event that Quebec leaves. Clearly one is Ontario and the other is Alberta and British Columbia. But I believe that Ontario would be a loser, and a very substantial loser, number one, because of the trade arrangements between Ontario and Quebec, and number two, because of Ontario's export markets and its importation of foreign capital, which would be curtailed. So when I go through the thing at the end of the day, I see the people likely to lose the least, if at all, would be Alberta and British Columbia. The rest of us, beginning with Ontario and moving on down, would be tremendous losers.

The Maritimes would be in desperate shape, for the simple reason that the transfer payments that come out of Ontario, which are already getting curtailed because Ontario taxes are high -- Ontario has to remain competitive with the contiguous United States and so on. Under these kinds of circumstances, it is arguable whether Ontario would be able to afford the burden of making those kinds of transfer payments. That would be absolutely brutal for the Maritimes, and it always bemuses me that people like Premier Wells say that this is not an economic issue. It is an economic issue, in my humble judgement.

I go through all of that to make the point that I think that -- while it sounds very crass to say so, I will say it none the less -- the economics of the situation are so frightening that people have to concentrate their minds on the distinctiveness of the province of Quebec and decide whether that is a price they are prepared to pay or not.

Obviously there are conflicting visions of the country and obviously we all have respect for other conflicting visions. What we have is a head-on collision between Mr Trudeau's vision on the one hand, ironically a French Canadian Quebecker Prime Minister, and the vision of a more federalist society which permits the tectonic plates of the country to adapt to local preferences and local differences. If we cannot overcome that conflict, then I really do despair for holding the country together and therefore I really despair for the standards of living and the opportunities of our children.

Mrs Y. O'Neill: Will you be able to send us the impact studies?

Mr Kierans: Yes.

Mrs Y. O'Neill: Our report is not going to be prepared until November, so maybe you will meet our time lines. I had another question. I do not know whether the Chairman will let me close.

The Acting Chair: I am afraid we cannot; I am sorry. Mr Kierans, as I said, you have covered a great territory, and the questions have responded appropriately. So thank you very much for coming, and I hope to get some of those impact studies. I am sure the committee members would be glad to look at those.



The Acting Chair: I would ask our next deputants to come forward, please. Good morning. I want to welcome you to our committee today, and thank you very much for taking the time to come before us. As you know, the clerk of the committee has indicated to you that you have, I believe, half an hour for your presentation. If you could leave a portion of that time for questions from the committee, that would be very much appreciated. Could you please, for the record, give your names and the organization that you represent?

Mr Chan: First of all, I would like to thank the committee for allowing us to speak on this matter. It is the second time that I have been given the privilege of appearing. My name is Lewis Chan. I am the president of the Canadian Ethnocultural Council, and with me is Eureta Bynoe, representing the national association of Barbadian Canadians and a director of the CEC as well. I believe that the members here have a copy of our brief. Is that right, Mr Chairman?

The Acting Chair: Yes, we do, thank you.

Mr Chan: Perhaps I can bring you along with the brief in about 10 minutes or so. That would give us enough time for some questions and answers.

First of all, on page 1 is a summary of the recommendations. The second page, which on the top says "Brief to the Select Committee," gives a bit of introduction on our council. Our council is a coalition of 37 national organizations with our various chapters across Canada. Our mandate is to build consensus among members, and we have been working on matters, including the Canadian Constitution, since 1980. A substantial number of our members are located in Ontario and that is part of the reason why we are here.

Coming to the first point, the preliminary list of constitutional guarantees for ethnocultural minorities, one of the things we would like to see in the Constitution is inclusion of a Canada clause. We think this is very important and in fact would be absolutely necessary in this round of constitutional talks. Part of the reason for the failure in the last round was that the round was not seen as inclusive, so we would propose that this round be a Canada round embodying many other areas so that it can be supported by as many people as possible. The Canada clause would include recognition of cultural diversity as a fundamental characteristic.

To recap, the clause would include the following items: aboriginal peoples and their status as a distinct society; the recognition of the linguistic duality of Canadian society; regional diversity, including the distinctiveness of Quebec; the diversity of Canadians based on national or ethnic origin, colour, religion or multiculturalism; equality of gender, and social and economic justice.

Moving on to the second page, the second item which we see as being very important is the protection of the Charter of Rights. It is our view that the Charter of Rights must be secured and not be diluted over the years. It is still a relatively new document and the full effect has not been seen over the years yet, although we of course have seen some very dramatic interpretations of it. We believe that the charter is basically a very good document and adds to our Constitution in Canada. While there may be some critics of it, we think that we can take what we have and perhaps improve on it, rather than just tear it apart. In particular, certain sections in the charter are of particular concern to us, including section 15, which deals with equality of rights, and section 27, which deals with multiculturalism.

As a subpoint to that, decentralization or devolution of powers: It is our hope that decentralization be kept to a minimum. There has been in the last number of years a number of programs which help minorities to achieve equality at the federal level, and I believe that this is not the time to dismantle these programs or to go backwards on them.

Some of the policies include things such as the Canadian charter, the Canadian Multiculturalism Act, employment equity and amendments to the Broadcasting Act. As well, there have been a number of departments responding to these issues, including the Canada Council, Health and Welfare, Justice and so on. We believe that a devolution of powers or decentralization would not be in the best interests of minorities.

The next item is review of the "notwithstanding" clause. Section 33 of the charter, we believe, should be reviewed with a view to it being either repealed or seriously curtailed. It is our fear that this section may be an escape hatch for governments that may want to withdraw rights at a certain date in the future.

So our recommendations are highlighted in the first page, and at this point I will ask Ms Bynoe to carry on with the rest of the presentation.

Ms Bynoe: I would like to thank you for this opportunity to address this select committee, and I am glad that we can participate in the process.

I will deal with, on page 3, the involvement of the people of Canada. We know that participation for all Canadians at every level is very much something that everyone is involved in, but we would like that involvement to be meaningful. More and more we know that public participation will be essential in the years ahead. This is the only way, we feel, that public trust will be restored in the political system and the constitutional development system.

More important, we feel that all proposals must be open to amendment and improvement, because it is only when amendments are possible that hearings are seen to be worth while. Our recommendation for this is highlighted: that the people of Canada be meaningfully involved in the consultative and decision-making processes of constitutional amendment.

The next approach, the role of interest groups: We are all aware that interest groups play a key role in the development of government policies and programs. These groups articulate to the government the needs and aspirations of the membership they represent. We know that sometimes they praise good policies and sometimes they criticize bad policies, but that is what democracy is all about.

On an ongoing basis, viable organizations develop consensus among their members on a wide range of issues and the input gained from them is often based on years of consideration of many related issues. This is something the average citizen cannot do because he is not as deeply involved in the issues.

Therefore, we recommend that government should be open to public input. The interest groups, though, should be seen as representative of people. We know that our groups here sometimes are multi-interest groups, because they represent women, employers, labourers, minorities or francophones. These groups address a large number of issues of interest to their membership and also speak about issues which may not directly affect their constituents, but these groups address the big picture and consider their own interests in the context of several other interests in society.

Our council has recommended improved process using referenda or constituent assemblies. What we have thought about is that the referenda be used for large issues, several issues and not one particular issue, because it might be that the majority voting on a particular issue might be to the detriment of the minority.

As we go on to the constituent assembly, we really commend this type of assembly, because it is essential for a good model of involvement of a large number of Canadians. We have some thoughts on the constitution of this assembly, however. We feel that the mandate of such an assembly should be to make a report on all the constitutional and related issues regarding the future of Canada and, where possible, actually draft the wording of the proposals. We feel that interest groups will be important in adding a perspective to both the governments, national and provincial, and we feel that sectors of societies and various issues will be addressed by the various interest groups.

We know that deciding on a representative will be difficult, because the representative should not be seen as partisan in any way and should enjoy a wide degree of support in the constituency from which he comes. Election of such a representative would be difficult, but at present we have national organizations which have representation from many parts of the country as well as having been democratically elected. We feel that such representation is a result of democratic processes that have already taken place and it is important that these persons are answerable to the interests they represent. We feel that the representatives should not be persons who are elected to public office in any Legislature or appointed to a position relevant to the constituency they would represent.

We know that our organization is a national organization but all of our national organizations have provincial chapters. Therefore, we recommend that a constituent assembly be established to recommend on all constitutional and related matters consisting of federal parliamentarians, provincial legislatures and interest group representatives.


Mr Chan: That concludes our presentation. We are ready to answer any questions the members may have.

Mr Malkowski: You have made us a little bit more aware of the issues of your group.

You were saying you had a concern with section 33 and the "notwithstanding" clause. That section can be used as an escape hatch for some provinces to opt out of programs. Do you think that would have an impact on section 15 and section 27? It makes those sections weak in terms of rights. Do you think that section 33 would have a real impact on rights? Could you make a recommendation in terms of substitution for that or a strengthening of that?

Mr Chan: Yes. In regard to section 33, it is our view that this clause should be changed or deleted because we are concerned that a government of the day, of any day, may use it to override those parts of the charter or other laws which are important. We feel that is one of the weaknesses of the charter, it being an escape hatch that a government could use. It is nothing we need to worry about if the government is good; it is if one day a government is not good or is responding to some public sentiment of the day. As we know, public sentiment swings back and forth depending on certain issues. As minorities, we feel that one of the things that would be protecting us is the law, and of course the supreme law is the Constitution and the Charter, so we feel we need that protection and section 33 weakens that.

Mr Ruprecht: The work the Canadian Ethnocultural Council has done in the past is very noteworthy. I know most of your members realize this country will never be the same after the new constitutional arrangements that are going to be implemented. I would hope that Quebec will stay within Canada, but if we fail and if you fail, I think that all those people we have heard this morning and at other times, when they say: "We might be able to sustain a country with Ontario, Alberta and British Columbia. We've got impact studies" -- I think it would all be a real shame and waste. I would think that in the end, the force that will be in place with the Americans will destroy Canada, and I think it will be only a matter of time.

I know that you not only represent thousands of people who are looking to you for leadership and guidance here but also many other Canadians who are not members of your organization, because you are an integral part of this country. There is no doubt about that.

I see a minor problem in your presentation which needs to be clarified. On the one hand, we have the Canadian Jewish Congress, the German-Canadian Congress, the Italian Canadian congress, the Ukrainian Canadian Committee and a host of others who have appeared before committees of this kind. To the same point, they all agreed that the distinctiveness of the Quebec clause gives us a major problem in that they have always seen in the past that Quebec has not been overly friendly to ethnic culture communities. But in a new Canada clause you have included part of the cultural diversity, linguistic duality, and then you are saying this morning that you would agree to have the distinctiveness of Quebec within the Canada clause.

Here is my question: On the one hand, having witnessed personally the many organizations that are part of the Canadian Ethnocultural Council, saying it has a major problem with the distinctiveness clause, and on the other hand you are saying that part of the distinctiveness clause should be recognized within your Canada clause. I would like you to point out how this could be done, because I think this could be a major benefit to the deliberations of this committee.

Mr Chan: Not having heard the other witnesses, as you may have, I am not sure I can comment directly on what they may have said when they appeared before the committee. Our draft or proposal has been circulated among our members and approved.

Coming back to the question of the distinctiveness of Quebec in isolation and accommodating it within a Canada clause may be two different things, initially, maybe over the last two or three years, we struggled with this concept somewhat. What exactly does a distinct society mean? Does it take away certain things from other minorities? Does it infringe on other rights?

Looking at the overall perspective, if there was a Canada clause which embodies the diversity of Canada or multiculturalism and a symbol of Canada, as well as other characteristics, our council feels that it is supportable. If we do not have the recognition of the diversity of Canada, the peoples of Canada, then our support would only be lukewarm. I think maybe if you take a look at the overall picture, what we are proposing is that there be a Canada clause encompassing recognition of various realities within Canada, including the native peoples, the distinctiveness of Quebec, the diversity of peoples in Canada. So in that overall context, we would find it supportable.

Mr Harnick: I am interested in your views on the "notwithstanding" clause, particularly the idea of curtailing its use, if it is not repealed altogether. What I would be interested in is the method or what you have in mind in terms of the ability to curtail the use of section 33 of the charter.

Mr Chan: At this point in time, the only thing that would curtail it is public opinion. Perhaps a shortening of the period could be one option. So the government of the day would have to return more frequently to have that clause used, but our preference is to have the clause deleted.


Mr Curling: The work that you are doing is extremely important. I know how complex it can get.

I want to put a question to you, answering actually two questions. First, it is indicated quite often that the public has lost trust in politicians, and we want to restore that trust. I just wanted to know if that is the way your brief actually says that public trust can be restored.

In doing so, I presume we lead to constituency representation and presentations. But many politicians are voicing the opinion that we have to get the public to have input into all of this process. Quite often we say when we have representations or a gathering of ideas, "Please exclude politicians."

Let me say it from this point of view: the women's movement, for instance, and women's rights have been asserted -- which over the years have been excluded -- and placed in the Constitution. We would talk about women's rights. We would not dare exclude women, even parliamentarians who are women, from the process.

I have noticed that even in multicultural discussions -- and I am asking you if you have observed that -- that they have; I say "they" -- the process seems to exclude visible minority politicians, which I think is a loss.

I say that because while we do the constituency assembly, we seem to somehow say, "We don't need politicians," or "We don't need anybody who's appointed by the politicians to represent people of that constituency." How do you think one can go about that in making that kind of selection?

Mr Chan: I personally do not think that everyone has lost faith in politicians, but these days in the consumer age, whether it is politicians or institutions, a lot of them are under attack. Even the policy of multiculturalism is under attack.

I think it is important to note from that area that there is not only a policy but there is legislation. I think these slings and public opinions come and go. Institutions are here to stay.

As to how to improve it and to regain the public's faith, I think politicians, first of all, cannot be excluded from the process. Our proposal is that in the constituents' assembly, or however you call it, some sort of committee, perhaps a third of it be federal politicians, maybe a third at the provincial level, but there has to be also representation from non-politicians, because politicians are elected to represent their constituents and they have to represent that area.

Other interests groups, whether they are in the environmental area, or minorities or women, have specific expertise in certain areas and I think they can contribute a certain view and perspective and deliver in very clear terms what the discussion may not have otherwise. They can bring that perspective to the committee or to the assembly, so I think they should be included.

So our proposal is a convention or assembly that would include politicians and non-politicians, but it is important that the person who takes part be accountable to the constituency that he represents, whether it is in the environmental area or the poverty area, or whatever, and not just be a token person who is an ethnic or a woman and who does not represent the views of the broad majority of people there.

Mr Curling: On page 4 of your presentation you say at the bottom: "Deciding on the criteria to pick representatives is difficult. It is important that such representatives not be seen as partisan in any way and should enjoy a wide degree of support in the constituency from which they come." My question is, who makes that decision?

Mr Chan: First of all, that part refers to the non-politicians, obviously, because politicians are partisan in themselves.

Mr Curling: Who will make that decision to pick that individual?

Mr Chan: Those names could be put forward by the federal or the provincial government, or a combination of them, but we could use some sort of formula so that it is not a partisan way.

One proposal would be to have perhaps 50% of the politicians decide, at least the support of two parties, so it is not just the government of the day, whether it is any provincial government or the specific federal government. We would have at least two parties, with 50% of the elected officials deciding. That could be one model.

The Acting Chair (Mrs Y. O'Neill): Thank you, Mr Chan. You and Ms Bynoe have a few more minutes. If you would like to make closing remarks, we would certainly welcome that.

Mr Chan: I do not really have too much to say to conclude other than perhaps two things. It is important to recognize, both within Ontario and within Canada, the diverse nature of Canada and how it has changed over the years. Our constituency is, I believe, an important one and wants to be part of the mainstream in helping to decide and chart Canada's future. We want the system to be an inclusive one so that we can be supportive of future developments. We would be working closely together with other interest groups, governments and opposition parties to further Canadian unity. In fact, the unity of Canada is within our council's constitution, so we have some bias there.

We would like to do what we can to help and it is our hope that the Canada clause, including the recognition of diversity, be included within the Constitution. We have many members in Ontario, including Toronto, and if there is any way we can help in further documentation or information you would like, we would be glad to assist.

The Acting Chair: Thank you very much for bringing us up to date on your constitutional work and for your continuing interest in this very important issue.


The Acting Chair: Mr Brown is next.

Mr Brown: I am Bert Brown from Alberta and I am national chairman of the Canadian Committee for a Triple E Senate. I have held that position since the start of that committee, which was originally a provincial committee. It lasted only six months as a provincial committee, moved into three other provinces and had to become a national committee in 1983.

The Acting Chair: I understand you have a little bit of Mr Clark's ear.

Mr Brown: We have one E of three anyway.

I would like to highlight the presentation that I think you have all been given copies of. I will skip entire pages, so if anyone loses me, you will have to just ask me what page I am on. In the interest of time, I would like to give as much time for questions as possible. I think most people have a fair understanding of what my committee is all about already.

I would like to thank you, first of all, for allowing me to appear. Queen's Park is becoming quite familiar to me. This, I think, is my fourth appearance here over the years. The first time was with the Deputy Premier of Alberta, Jim Horsman. I was a member of his task force on Senate reform.

To begin, I would like to define first the three basic principles upon which the Canadian Committee for a Triple E Senate has operated for some eight years. It is the goal of our committee to reform the Canadian parliamentary system to make it more attuned to the needs of a modern confederation.

The first principle would be to elect in future all representatives to the Canadian Senate. The second principle would be to give the provincial partners in our Confederation an equal number of elected representatives in that reformed Senate. The third principle is to confer upon the Senate, through an amended Constitution, the powers necessary to make that legislative body an affective voice for all the provinces.


We have participated in a number of task forces across the country, one for the Reform Party of Canada, and one, as I have already said, for the Alberta government. My committee has never commissioned its own polls, but it is greatly encouraged by the rewards they reflect for our efforts to explain the need we see for Senate reform, the benefits thereof and the dispelling of myths and roadblocks to reform which are thrown up by those opposed to change in the status quo.

The national percentage in favour of a triple E Senate parallels the recent poll, at 55% in favour, which interestingly is the same percentage in favour in Ontario.

The balance of my presentation will be broken into two parts. The first is to describe the focus of where the body of work on Senate reform has led us to date and the second is to explore the concerns of those sincerely opposed to reform.

With regard to the present focus, after years of promoting an idea based on the three principles -- elected, equal and effective -- we have found it desirable to translate widespread agreement in principle into something more specific. A great deal of work on the mechanics and details of various Senate reform proposals has already been done by various committees early in the past decade. For references, we have listed a number of reports.

The body of this legitimate work has made a clearer focus on the areas of agreement and disagreement in comprehensive reform much easier for all of us. My assessment will begin with the one principle of complete and unanimous agreement among the works mentioned, that the Canadian Senate should be directly elected by the people of Canada. As your Chairman has already said, Mr Clark apparently agrees with that assessment.

I will preface remarks on the second principle, equal representation in the Senate by province, regardless of size or population, by stating that no legitimate advocates of Senate reform intend to fundamentally change the democratic principle of one person, one vote currently represented by the existing makeup of members in the House of Commons. What we do desire is a vehicle to democratically represent the legal entities which make up our Confederation, the provinces, on an equal basis in the Senate. Such representation is justified by the recognition of this second principle of a confederation: representation for the partners. Examples of this are found throughout the world, most notably Switzerland, Germany, the United States and Australia.

The provinces of Canada now exist as legal entities complete with legislatures solely empowered to enact legislation for the protection and benefit of the interests of their residents in specific areas of education, health, resources, etc. Equality of representation in the Senate would provide a democratic voice for all the provinces whereby their interests would not always be vastly overshadowed by the influence of provinces holding the larger populations.

Understandably, this second principle of equal representation in the Senate finds greater favour with the smaller provinces than it is expected to find in the central provinces of Ontario and Quebec. However, it is worthy of note that even in Metropolitan Toronto my committee finds support among minority concerns which see a reformed Senate as a legitimate vehicle for expression of their interests.

No clear consensus on the exact number of equal senators which should represent each province has to date been reached. The number proposed has varied from a low of two to a high of 20 per province.

In addressing the third principle of the triple E concept, the need for an effective Senate, I think it can be fairly stated that no legitimate purpose exists to reform the Canadian Senate unless the objective is to make that institution an effective instrument of some agreed-upon jurisdiction. The achievement of real Senate reform will require extraordinary effort to reach consensus, and few would argue that we undertake this task merely to entertain the academics in the political science departments of our universities or the intellectual élite among us.

I was pleasantly surprised by the comments of former Attorney General Ian Scott during my first appearance at Queen's Park in the fall of 1988. Mr Scott stated that certain precedents had taken place in Canada -- such as the Edmonton accord, the first ministers' conferences and the preamble to the Meech Lake Accord -- "which had firmly established in the minds of Canadians the principle of equality of the provinces." He went on to say that Ontario "may" not fight the principle of equality and ended his comments by saying, "Ontario will want to have major input into the effective powers of this new Senate." I am sure this will be no less true of Premier Rae's government.

To date, there seems to be agreement that to be meaningful, Senate reform must result in a degree of power residing in the Senate that would enable its majority vote to be reflected in the decision-making process at the national level on an ongoing basis. Concurrent with this desire for effective and legitimate power in the Senate of the future, there is an underlying concern that such power not result in a deadlock where the House of Commons would be paralysed by a mischievous and obstructionist Senate.

No amount of assurances that such an event would rarely happen in reality are able to assuage the fears that it could happen. In fact, this once did result in deadlock and double dissolution of both Houses in the Australian experience. A clearly understandable and workable method of preventing deadlock must be agreed upon for Senate reform to win the hearts of Canadians in general. The current actions of the existing appointed Senate do not help to allay such fears.

If a weakness exists in the first triple E amendment drafted, it is the deadlock-breaking mechanism suggested where a joint committee of both houses would meet to resolve disputes. A more clearly understood and workable suggestion may be found in the amendment proposed by the roundtable discussion in Calgary of February 1990. One of the participants, Dr Alan Cairns of the University of British Columbia political science department, suggested the use of an unusual majority to break deadlock. This unusual majority would have two components.

1. To overrule the defeat of a bill passed by the House and defeated by a majority vote in the Senate, the Commons would be required to repass such a bill by a percentage vote larger than the percentage vote in the Senate.

2. Such a percentage vote would have to reflect a majority of members of Parliament representing seven out of 10 provinces and 50% of the population. This provision is quickly recognized as the majority currently required for constitutional amendments. In all but the rarest of cases, it would require the support of opposition members of Parliament in at least some provinces, and proving such widespread support throughout Canada would clearly be sufficient justification for maintaining supremacy of the House of Commons on any particular issue.

In summing up my presentation here today, I would like to dispel a few myths about the goals or motives or fears surrounding the triple E Senate.

First is the assumption that tiny Prince Edward Island will somehow frustrate the will of Ontario or Quebec in a triple E Senate. This assertion is patently absurd, since the Senate would operate by majority vote of its members. The addition of the smallest 26 states by population in the United States shows they represent 17.4% of the total United States population. The same addition of the six smallest provinces by population in Canada would represent 19.1% of the population. Interestingly, 78 years of a triple E Senate in the United States has never produced a single occurrence where the smallest 26 states have combined exclusively to veto the largest 24 states.

Second, a charge is made that the Senate would simply become a mirror image of the Commons. This would almost never be so if the senators were elected by the provinces and supported by provincial party coffers only, ineligible for cabinet positions, elected by provincial parties not having a national mandate -- for instance, the Parti québécois, Social Credit, Western Canada Concept, the Confederation of Regions, etc -- as well as the mainstream parties and if elected on fixed six-year terms, with staggered elections for continuity.

Third, the argument is made that the reformed Senate would make Canada harder to govern. Reform could possibly make it harder to govern as badly as it is being governed today, but by providing for reform into which provinces, large and small, can have an equal voice to promote their interests, Canada would be easier to govern, with both the perception and the reality of fairness.

Some critics of the triple E are beginning to label it as the power grab by the west. In reality, the triple E is a design for a counterbalance to offset the unfairly weighted influence given to populous provinces which allows interests of both the western and Atlantic regions to be effectively ignored when national decisions are made. The west and the Atlantic provinces do not wish to always win, or even always automatically oppose the Senate. They want only to be heard, with some real chance of having influence in national policy.


More, even sustainable growth throughout this vast country would reduce the environmental stresses along with the man-made stress of traffic congestion, cyclical inflation, boom and bust economies and frustrations of those who feel left out of the mainstream of Canada's future potential.

The most often asked question of my committee and myself over the past eight years is, why would Ontario and Quebec ever agree to equality or effective powers in a reformed Senate when they have everything their own way now? While our answers have always been sincere and each with some merit, they have repeatedly changed and evolved.

Our first response was to say that the eight other provinces will some day accept nothing less. Then we grew to honestly feel that the central provinces would agree to meaningful reform because Canadians are basically a fair people. It is now apparent that eventual agreement on Senate reform will come in the simple interests of an ever-increasing need for national unity.

Canada is a democracy. With meaningful Senate reform it is capable of becoming a great democracy. The Canada we have now is too vast, too diverse to be governed intermittently by first ministers' conferences, and it is far too important to be governed by heated confrontation.

I leave your committee with this thought: It is only through public participation at these types of forums that we can prevent the kind of divisive rhetoric and constitutional crisis that we face as a nation in the months ahead. Conversely, when our government's leaders participate in constitutional deals which exclude Canadians, they set us against one another and create tensions which may be impossible to erase.

As a Canadian, I fear that the people of Quebec have erroneously convinced themselves that the vast majority of English Canada is rejecting them. Nothing could be more untrue. Yet, deceptively fostered, perception has become reality. It is difficult to imagine how Canada could be stronger or compete better globally by becoming smaller and more divided. It is impossible to imagine how Quebec people could effectively preserve or protect their language and culture by isolating themselves in an enclave and passing laws which would effectively restrict options and opportunities for their own people in a global economy in a shrinking world.

The inexorable move to universal communication is a very real threat to the French language. We have no magic solutions, but of one thing I am certain: The threat to French is real and that threat does not originate as a conscious or planned course of action by English Canada. It is a consequence of a collective direction in the modern world.

The constitutional bottom line for western Canada is a Triple E Senate. Without this minimum, western Canadians are fully prepared to see the future federal government so decentralized as to make it impotent and without the tools to continue national programs.

My committee feels it cannot be overemphasized to state that the preservation of the Canadian Confederation rests on two fundamental principles: an effective and equal voice for all the provinces and no special status or privileges for any one province.

The Canadian Committee for a Triple E Senate believes in three basic principles for the renewed Canadian Confederation. They are: equality of citizens in a reformed House of Commons, equality of provincial communities in a reformed Senate and equality of charter language communities.

Ontario has a golden opportunity to be pivotal in the renewal of Confederation as a mediator between western, Atlantic and Quebec aspirations. If partisan issues can be put aside, perhaps we can yet reach out to Quebec with generosity, and it will give enough to understand the compelling need to compromise and reach back to us.

For your committee the task is great, as we honestly feel that consensus on Senate reform has the potential to be the foundation upon which a bridge to the interests of Atlantic, central and western Canada could be built. It is to be hoped that sufficient goodwill exists in the hearts of Canadians to overcome the real constitutional crisis we face. I believe the goodwill still exists. Thank you.

Mrs Y. O'Neill: Thank you very much, Mr Brown. It is nice to meet you in person. I certainly have read about you and your work for some time. You must be happy that you represent one of the three major discussion points that have consensus across the country, and that is significant.

I would like to ask you a couple of things. On page 10 is the first time I have really seen that written down as completely. No doubt you have written it before, but I have not read it. There seems to be a real attempt here to divide the upper and lower houses as we knew them in former times and now the Commons and the Senate. In other words, the cabinet positions being totally out of the upper chamber and these kind of provisions that you seem, in my mind, to be underlining, those two houses now have to become very much more separate. I would like you to comment on that.

The second comment: Could you say whether your plan could accommodate something else that is coming along from the left, it seems, and that is another federation, another kind of economic union representative of the provinces?

If you could just comment on those two things, it would be helpful.

Mr Brown: First of all, I would not use the word "separation" in terms of the two houses. It is not our intent to separate them as much as it is to throw every roadblock possible into the path of any partisan interest which would make the reformed Senate a mirror of the House of Commons.

By example, we do not want senators to be eligible to become members of cabinet, in order to prevent the Prime Minister of the day from reaching back into the Senate and tapping John Smith on the shoulder and saying, "I have an opening in cabinet coming up and I've got you on the short list." Then he taps John Doe on the shoulder, and pretty soon he has tapped a hundred-and-some senators on the shoulder and they are all on the same short list for one appointment, but in the meantime he has effectively co-opted the Senate to get his support for whatever measures he wants. So that is one of the roadblocks we want to throw in their way.

The second one is that if we cut off the purse strings of the federal political parties from supporting senators of the future, then it leaves only the party coffers of the provincial wing to support them. Therefore, they owe their allegiance first, last and always to the provincial interest. This is not in any way to affect the mainstream parties, but it allows again a separation of the interests in the Senate from the mirror interests in the House of Commons. All of our designs have been to separate them only so that the provincial interests can be clearly represented in the new Senate. We do not wish to change, as I said, the democratic principle of one person, one vote.

The second part of your question refers to a new economic union between parts of Canada. I guess that is really what you are getting at. I have had some very disturbing meetings in Alberta in the last six months since the death of the Meech Lake accord. I have attended six constitutional conferences in this country, including one at the University of Saskatchewan in Saskatoon, one in Calgary, one in Toronto the day the war broke out on January 16 and one at McGill University in Montreal, all of which seemed to have the unanimous opinion that Quebec is gone.

I disagree with all of them. I think what is happening is that there is a political, a business, an academic and a media élite in Quebec which would rather lead a Quebec nation than it would a Quebec province. I do not believe the people of Quebec, in the mainstream, wish to divide this nation. I think they want to remain a part of this country, but this élite class would like to get as much as it can out of the constitutional poker game we are playing in this country. I do not belittle them for that. I guess if I were one of the élite in Quebec I would like to get as much power as I could. That is only natural human ambition.


My answer to that is, I do not see how we can have strong economic union in this country by having devolution of political power. I do not think you can expect the two things to happen. I think that is the main problem we are going to have: When we decide to divide up the political power in this country, by nature we will be dividing the economic power as well. So I do not see any major new economic strengths coming out of whether you call it sovereignty association or separation or anything else, and I do not see how you can devolve so much central power to the provinces that you make the national government impotent and without any ability to have national programs and make anything stronger in this country either.

The world is moving into stronger and stronger trading blocks such as the European Community and the free trade agreement with the United States. I do not see how we can divide this nation and make it stronger in any way. I do not see that happening.

Mr Harnick: I appreciate receiving your brief, which is certainly of great interest and very topical. The one thing I find difficult about it is that we are trying to determine the future of the Senate in a procedural sense without really understanding what the Senate, in a substantive sense, will be doing. Have you, in any of your development of this proposal, developed any ideas of those areas of jurisdiction that the Senate will have, or will it continue, in your view, to be a body of second sober thought?

Just to give you some idea of some of the things we have heard, we have heard that a Senate could potentially be the body that will ensure equality of national programs across this country, or that a Senate can be an economic body developing federal economic policy and dispensing economic policy. What substantive proposals are you making about the function of the Senate?

Mr Brown: I should have passed out a copy of Western Perspectives, published by the Canada West Foundation. I will leave your Chairman a couple of copies of it. It is a booklet, so it is difficult for him to have copied it for you this morning anyway, but it is a blueprint for Senate reform which was published by the Canada West Foundation in January of this year.

The actual roundtable discussion took place a year earlier, and we were a whole year in massaging the results of that roundtable. The participants were Gordon Robertson, a former member of Privy Council, and Dr Allan Cairns of the University of British Columbia. Premier Clyde Wells was a participant, as I was myself, and some other political scientist, Dr David Eltis, president of the Canada West Foundation.

This is a complete blueprint from what we expect from the Senate, but just to give you a thumbnail of it this morning, we see the effective powers of the Senate being what they are now. They have an absolute veto over the House of Commons on all issues if they wish to exercise it. They do not have the right to initiate a budget and they have only a six-month' suspensive veto over constitutional amendments to the Senate itself, and we would see that those would remain in power as much as possible.

What we really want is just simply this: that the House of Commons remain as the first cornerstone of democracy -- one person, one vote in the House of Commons -- but we want a counterbalance to that for the members of Confederation. What we are saying, very simply, is that the House of Commons will rule supreme as long as it has the support of at least a majority of the provinces, but when it does not, that piece of legislation will be defeated or amended. We are not saying that the Senate would necessarily just be obstructionist, that it would just get out there and decide it was going to defeat all the bills coming forward. It would either amend them or it could defeat them or it could initiate a bill of its own which was more in the interests of the majority of the provinces. This is really all we are saying.

To give you quick examples, the GST recently, in my opinion, would not have been vetoed by the Senate, but it would have been substantially amended. It would have been amended to more accurately reflect the interests of most Canadians. Number one, it would have been tied to legislation to reduce the national debt, which is I guess now happening, but it did not initially happen when it was passed. It would have been simplified. It would have had fewer loopholes and been more fair. Other instances could be given, but it is difficult to sit here and say exactly how the Senate would perform in every instance.

But all we see is that when the majority of the provinces combine to say, "This is not in the interests of our province," or a combination of senators representing different provinces -- they do not necessarily have to be six provinces that would be opposed, but that the majority. Another example would be the drug bill of a year or two ago, when clearly a number of people were concerned across this country about the changes in the drug act in this country. If a combination of a few senators from each province made a majority and wanted either to defeat that bill or amend it, then the Senate would have been able to do that. That is, I think, the easiest explanation I can give you.

Mr Harnick: You certainly answered my question. Thank you.

Mr Malkowski: Your presentation was very fascinating, the concept of the triple E Senate. Your point is to have the equality of provinces so that we can hear the provinces' voices. Related to the Senate election process, could you clarify who would call Senate elections? Would it be the same situation as a federal government? It is called by the Prime Minister. So who would do that?

The second point, you would say a six-year term for senators. Would the election process be similar to a federal election in terms of nomination of candidates and having it from all the parties or a non-partisan Senate? How would you explain the election process? Could you clarify those two points.

Mr Brown: First of all, the Prime Minister would have nothing to do with the call of the election for the Senate. The Senate would be on fixed term so that you would know when the election was coming. If it was six years, then every six years that Senate would be elected. The Senate would not be able to bring down the government. In other words, a defeat of a bill by the Senate would not be a vote of confidence, so the government would not fall. The piece of legislation would fall or be amended, but it would have no impact on the Prime Minister's election of his own House of Commons.

Second, it would be a partisan Senate, but only in the sense that all registered provincial parties and all independent candidates who wished to run for the Senate would be eligible to run. The provincial party wing would be responsible for raising financial contributions to support those senatorial candidates. This would allow the Social Credit Party in BC, which does not have a national mandate, to run senatorial candidates; also the Parti québécois in Quebec and various other provincial parties that do not have a national wing. It would also include candidates from all of the mainstream parties and, as I said, independents. As much as possible, the elections would be run by the provinces, but the timing of them would be set in stone.

The Acting Chair (Mr Drainville): Thank you, Mr Brown. The work that you have done has been very important as we have looked at the future of our institutions in Confederation, and we thank you for coming before the committee. If you have any other information or reports that you could send to the committee for us to look at, we would greatly appreciate that in the future.

Mr Brown: Fine. I thank you again, and I will leave a copy or two of this Western Perspectives: A Blueprint for Senate Reform.

I would like to leave you people with one last comment that comes more from my heart than from my diplomacy, and that is that if we would renew the Confederation of this country, we must treat Canadians equally in all aspects right across this country, and I think that there can be no more fundamental characteristic that can unite Canadians than to know that the three principles of equality are going to be adhered to in a renewed Confederation.

I reiterate those three principles: The first is equality of all Canadians, regardless of race, sex, ethnic origin or any other individuality in a reformed House of Commons that truly represents Canadians and not partisan political interests. The second equality is equality of the partners in Confederation, regardless of their size or their population or their wealth or their lack of any of those, for the next hundred years we reform the Senate, not for the next term of somebody in office. The last equality is equality of the charter language community, with no preferential or denigrating legislation to promote one language over the other. Thank you.

The Acting Chair: Thank you, sir.

Are there any procedural questions before we adjourn? Okay, then we will come back here to the committee for 2 o'clock this afternoon. This committee is adjourned for now.

The committee recessed at 1141.


The committee resumed at 1407.


The Acting Chair (Mr Drainville): I welcome Professor Julius Grey, who is coming before this committee for the second time, I believe. You have come a long way, so if we could look at the 40-minute, 45-minute mark and if you could provide time for questions as well that would be helpful.

Mr Grey: It is a pleasure to be here again. I am the president of the Task Force on Canadian Federalism, an organization based in Quebec which has appeared before you in Cornwall; we have appeared before the Alberta committee, we have appeared in a very stormy session before the Bélanger-Campeau commission and we are back here. I think your allotment of time is very generous.

I received from you seven pages of questions, which would be impossible to answer very quickly, nor could we prepare a new brief in the week in which we knew this was going to take place, so instead I have brought in a certain number of publications in which I have articles published. Most of them are in La Presse or the Gazette; one is proofs of an article that is coming out in Policy Options Politiques, another one is from there, and one is in a law journal. I think these articles tend to bring out some of the points I want to make and I will refer to a few of them.

The first point I would like to make is my total refusal to accept what I fear is a new concept growing in Canada, which I call "philatelic federalism." In other words, people go around saying, "As long as we save the name of Canada, as long as stamps keep coming out saying `Canada,' then we have saved this country." That is just not good enough. For one thing, we may not have stamps next week, but apart from that --

Mr Ruprecht: Philatelic?

Mr Grey: "Philatelic" is the word I used, for stamps. People think that any concession you make, any Constitution you come up with, is good enough as long as stamps appear with "Canada" on them, that if you take out an atlas of the world published, say, in Germany or India you will see the word "Canada." Countries and borders change over thousands of years. If we look at a map of Europe 2,000 years ago, nothing is the same. If we are going to save something, then it surely is much more than a name, a stamp, a trademark or anything like that.

I think we have to ask ourselves what we are trying to save. I think we are trying to save a very good society, not a perfect society -- there is not a perfect society anywhere -- but a very good society which most people in the world today would like to live in. What are its essential characteristics? I know I will leave out a few and some people are going to be upset at one or another, but I am really trying to put first of all the things without which I think Canada would not survive, and second, would not be Canada.

I think bilingualism is an essential characteristic. As an aside, in answer to one of your questions, I will add that even if Quebec should leave Confederation, which I hope will not happen, one should not use the francophones outside Quebec as hostages or take away their rights. That is an essential and important part of any Canada. Bilingualism is a fundamental characteristic.

The second thing I would like to stress -- I think it is essential and it was not always the case; it was not so in 19th-century Canada, which may well have survived originally as a defence bulwark for the British Empire -- today an essential characteristic of Canada is social justice. Some people might call it a compassionate society, other people use a word that has gone out of fashion in certain countries, which is "welfare state" and other people use all sorts of expressions for it. What we mean basically is that Canada as a society has not fully accepted and should not accept the extremes of American liberalism; it sees the need to redistribute to some extent the goods and services in our society, while maintaining a fundamentally free economy, and we do so very effectively. Canada has one of the best systems of protection anywhere in the world.

The third characteristic of Canada is liberty. There, I think, Canada does borrow from North America. It is clear that while we are a compassionate society, we are also one which maintains individual liberty at what I would call the American level. I do not mean only freedom of speech or freedom of press, because most European countries, including eastern Europe now, have that. It is more than that. It is freedom of choice for the individual, freedom to belong to any ethnic group or not to belong to it, freedom to develop in his or her own way, liberty in a much broader way, the freedom of movement and of social choice.

I think those are the three essential characteristics of this country: bilingualism, social justice and liberty. The question I would like to ask at this point is, can we effectively decentralize this country further while maintaining those three goals? The first point one would make, of course, is that Canada is already largely decentralized. It is the most decentralized of the major federations. One could also point out that very decentralized federations tend to be unstable. They either move towards greater centralism, Europe being an example moving towards greater integration, or they tend to fall apart over time if there is very little left.

Given the fact that we are already highly decentralized, I think we have to ask ourselves the following question: If you take into account the equalization payments right now, the federal government administers no more than 30% to 40% of the total budget of this country, depending on how you count it -- substantially less than 40%, actually. If that is the case and if you decentralize further, will these structures of the federal government be economically viable? Will it be worth keeping this very costly and, especially because of the shape of our country, very lengthy communications thing for what are basically very few powers and very little administrative efficiency? Then there is the problem of simple efficiency.

But there is another problem. Could we resist US liberalism in a more decentralized state? One of the points I would like to make is that I think the economic and constitutional issues cannot be separated. In the first article I gave you, which I wrote, "Le Canada seul offre un projet de société clair," I make that point to such a degree that I have even included in this package an article I published in 1988 opposing free trade, not because I think we can reverse free trade or that this is the issue we are now talking about, but because I think we cannot possibly keep out of the debate the question of what would happen. How can we have sufficient bargaining power to keep a different economy?

I think the point I made in the anti-free trade article is that in the long run, if Canada forms part of the same economy as the United States, people will want to join the United States for the very simple reason that if all decisions are made in Washington, then the very nature of patronage will mean that before every American election the senator from Ohio or the senator from Michigan will try to get jobs away from Ontario to give to his electorate, especially in a period of scarce jobs. In order to maintain Canada successfully over a long period of time, we would have to have sufficient clout in bargaining to be able to withstand that type of pressure.

Of course the first conclusion from that is that it is not only Quebec. Some people have said, "Let Quebec leave; Canada will continue." I think English Canada will not continue without Quebec either. I think it will continue for 20 or 25 years because our generation has been brought up in the consciousness of being Canadian and it is very difficult for us to say we will not be. For about 20 years we would maintain some sort of separateness, but as the next generation grows up and there is no economic reality to it, obviously the consciousness would fall.

The next thing I say is that the only way we can maintain sufficient clout -- and even that is not certain, of course -- is if a single economy existed, if the water of British Columbia, which is very much needed in California, the oil of Alberta, the industries of Ontario, the electricity of Quebec and Newfoundland and the industries of Quebec were part of a single economy that could bargain with our partners, friends, allies and those who oppose us. It therefore seems to me that from an economic point of view, any decentralization would be disastrous. We are already very decentralized and in a situation where we are, for the foreseeable future, in some form of partnership with something so much larger and much stronger. If we want to maintain a different economy and a different social structure from the United States, then we must remain united.

The first point is the economic point, but there are other reasons why I think decentralization will not work. I am very much afraid that in the fall the people who believe in a philatelic Canada will say: "We have to accept something like the Allaire report, a big giveaway of powers. You must accept this because if not, Canada will break up tomorrow." In desperation and fear people will accept that and the long-run consequences will be both the separation of Quebec and the weakening of the compassionate side.

I have included the article "Why save Canada?" which has not yet been published, where I point out that there are those who believe that weakening the central government might be an effective way of getting rid of the social programs they do not want and maintaining some sort of shadow Canada afterward. Canada without the social programs has no long-term future.

So far, I think what I have said is particularly controversial in Quebec. Quebec has said it wants to do away with interprovincial trade barriers to keep a single economy. So far that is not the issue in Quebec, although I must say the demands of Allaire cut right across economic issues as well. If you took them all the way, they would be destroying the single economy. But the next point I would make is that when you are faced with a nationalist movement such as Quebec's, concessions do not work. There is not a single example in the history of the world where the ardour of a nationalist movement has been cooled by concessions to that movement. One of the best examples, if one wants to be esoteric, is the Austrian government's desperate attempt to play in favour of the Czechs against the German speakers in the Bohemian mountains. It did not stop the separatist movement; it did not stop nationalism.


Nationalism basically feeds on itself and the reason why a nationalist movement will not be satisfied with concessions is, first of all, because the year after that, nationalists like Mr Parizeau and Mr Bouchard -- even if one were to accept that Bourassa is some form of Liberal or federalist, I do not know -- the people who want an independent Quebec would not go away; they would keep working. But there is an additional reason why they would keep gaining support and that is because the nationalist goals, the illusions of nationalism, do not bring an improvement in anybody's standard of living, way of life or anything else. A year later, two years later, those people who thought the apocalypse had come and everything would be wonderful, would be just as disappointed as before. It does not solve your employment problems. It does not solve gradual reduction in the standard of living or anything else. It would therefore be a natural thing, two years later, to say: "We did not get enough. It would have worked, but we did not get enough, so now let's start with the base of what we got and continue fighting for further concessions."

I have put in a couple of articles on that issue. "À quoi ressemblerait un Québec independant ?" in which I pointed at a very bleak future, I thought, for an independent Quebec which would gradually, as the economy declined, go into xenophobia, blaming the minorities for its woes. It is a natural process. It is not because Quebec is any worse than anyone else but because, in all cases where nationalism has gone all the way, that has been the experience. Secondly, I have included an article which is just coming out called, "French is in no danger in Quebec." The reason for it is that I think one of things that is repeated -- and I am sure the advocates of philatelic Canadianism are going to come forward -- is that Quebec must have the powers it needs to protect its culture. The point I want to make is that Quebec already has the powers it needs. Culture and language are basically provincial matters. The Supreme Court said so about language in the Brown's Shoes case. It is basically a provincial matter.

The only limitations on it are either the functioning of the federal government itself -- nobody can tell the federal government not to be bilingual, and a non-bilingual federal government would be a disaster across the country; it would be a disaster for the francophones -- but secondly, the limitations on Quebec's powers within the area of culture and language have been only two: basic human rights -- they have lost a number of cases in the courts based on the charter and so on, the signs being the best known one, and even there they had the power to overcome it through the "notwithstanding" clause. That is the first one. The second type of limitation is spending power, but spending power should not be confused with legislative power. It too is a check and balance.

I have given you an article I wrote about the Arpin report, the cultural report in which Quebec claims total and complete powers in the field of culture. That is very pernicious. That means they do not want The Canada Council or institutions like that to give money to Quebec artists, or writers or anything. They want all of it to be centralized, but there is nothing more dangerous than that.

In fact, in these areas, spending power acts as a check and balance and not even of a political or linguistic sort. Imagine that an avant-garde group gets control of one spending institution, and it is the only one, and no one who is not avant-garde can get funding for arts. Or, the other way around, some crusty old academicians take control of the art of a particular province saying, "That is it," and the federal government cannot spend. Spending is not the same thing as legislative power. Quebec already has all the legislative powers in the fields of language and culture.

There is one thing of course: communications; but there, even if one were to hand over some of the powers -- because I am not against all changes, you could change some of them -- you would have to protect the CBC because that is one of the basic institutions of this country. You have a number of institutions: the transport system, the CBC, the banking system, things that hold the country together. If you do away with all those things, if you allow the provinces to cut the links that bind them together, you will find yourself over five to 10 years with a totally independent and separate Quebec, having nothing in common. Quebeckers have often complained they do not feel at home: They go to Toronto or Vancouver, it is not their country, they do not feel at home there. We should address that problem, make sure they feel at home. But cutting the links that bind is not the way to make them feel at home. It is a way to make those cities even more foreign.

Therefore, when you look at the Allaire report, what you find, I think, is a large number of powers which they claim Quebec already has, and where the real thrust is against the civil liberties side of things, which one cannot concede because, if we are going to have common standards, one of the basic areas is civil liberties. There is no way we can have one area of the country that does not have the same standards with respect to the charter or anything else.

And then you have a number of other powers that touch the economic issues and, in my view, those cannot be touched because in this common market that is the long-term end of Canada. If you do not have the separate economy, you do not have a country.

What then can be done? Because of course the reproach can be made that I have just said what we cannot do. Somebody is going to say, "But what can you do? If you do not give something next year, Quebec will separate." There is a little bit to be said against what every law student learns is the "Mutt-and-Jeff" technique of interrogation. Quebec's negotiations have been a little bit that way. Mr Bourassa goes out and says, "You've got to give me everything because if you don't give me everything Mr Parizeau will come in and he will take everything."

There would be something to be gained from saying that, but I think we also have to ask ourselves realistically, "How can we sell a Canada that is not decentralized, to Quebec?" First, I think there can be some constitutional changes. Any constitution after 125 years can be revised. There are some powers -- immigration, for instance, could be; I am not going into details of every power, but immigration is one area where Quebec already has de facto powers. There is no reason not to recognize it.

There are some other areas, family law, for instance, where the original reason for having marriage and divorce federal was because of the fear that the strong Catholic lobby in Quebec would never stand for divorce. That fear no longer has any basis, so it may be a rational thing as long as we have an American-style understanding that each province must recognize the other's divorces. We could have that open.

In the same way, some economic powers should clearly be restated to be federal. There must be an end to all those trade barriers and everything else. We could have a somewhat restated Constitution. My position is not that we should not have constitutional reform, but that the ultimate balance between the provinces and the federal government should not be different from what it now is. You can move some powers one way, some powers the other.

There has been some suggestion that the federal government could fix the standards and that the provinces could carry them out. First, I worry about the viability of the federal structures in those conditions because of the economic problem: Is it then worth keeping this whole network of governments and so on? Second, I do not think it will work for another reason: Quebec will simply not accept federal standards in things like education. I noticed a comment by the Premier of Ontario in today's Globe and Mail that there must be a certain degree of common standards in culture and education. I think that will be just as hard to sell to Quebec as a federal structure and, therefore, I do not think we should simply set out the standards and let the provinces carry them out. I think, basically, we have to sell Canada to Quebec.


There are many reasons for selling Canada to Quebec. One of them is, of course, that the Quebec media have so far been very delinquent -- at least, one-sided. I would not say delinquent. For every article that appears defending Canada, you get 25 pointing out the deep injustices that reporters see in the federal structure. In order to sell Canada to Quebec I think people are going to have to go and campaign in Quebec.

What is to be said in Quebec? I think we have to call a spade a spade, not say, "We are going to give you everything," not act like so many politicians all over the world are acting right now, trying not to face the issues, but simply putting it in a way which is electorally acceptable for everybody.

I do not think there is ultimately an acceptable solution unless we convince Quebeckers. The point we have to make in Quebec is that French is not endangered in Quebec. The great myth of Quebec nationalists has been that French is about to disappear. Mr Henripin, the demographer who first raised the alarm about French in the 1960s has now taken it back. He has published new studies showing that French is in no danger at all. I have given you my historical argument, which is coming out in Options this month, as to why French is not in danger. There have been articles even by Quebec journalists like Lysiane Gagnon pointing out that it is totally unthinkable that Quebec would disappear. There is not a single instance of any country which had a majority in one area and a free and compulsory education system, whose language has been lost. The examples of Louisiana or Wales where there was no free and compulsory education system simply do not work. There is no danger.

This point is being raised even in Quebec right now. Yesterday I picked up a book by the British historian Hobsbawm, Nations and Nationalism Since 1780. He dismisses Quebec nationalism in one page with the sort of statement that would have created a tremendous outcry if an English Canadian had written it: just a dismissal of the whole claim of danger to Quebec. I would not dismiss it in quite the same way, but I think the point must be made to Quebec that there is no way French is going to disappear. Indeed, since the 1960s French has made tremendous strides across the country, and must continue to make strides. One of the essential characteristics of Canada which people would not have said 40 years ago is bilingualism and the presence of French.

The second thing that must be pointed out to Quebec is that not a single country can be shown to have profited substantially from breaking up a federation. People are inevitably worse off, at least for a generation or two, and nobody wants to be sacrificed. The problem is made worse by the fact that many countries that walked out of federation -- look at today's Soviet Union -- had a real history of oppression and problems, but it is very difficult to argue that an average Quebecker faces any injustice, that his career is any worse in today's Canada than anybody else's. It used to be different and there could have been an argument made 40 or 50 years. There was an argument made, a legitimate argument, that things had to change in Quebec, but today it is obvious that is not the case.

The third thing that I think has to be said and said firmly is: We do not want Canada to break up. And if we do not want Canada to break up, we are not going to co-operate with those who are working for that goal. We are not going to guarantee in advance a common currency, a common market or anything else. We are not going to say in advance, "We'll make it easy for you if you choose that." I think the answer is: We want Quebec. Quebec was not rejected during the Meech process. The Meech process was a series of accidents, and in many ways flawed. The difficulty with Meech was that, at a time when everybody should have discussed a few clarifications, they just got their backs up and hissed at each other.

The thing that goes together with the devotion to Quebec, the love of Quebec that Quebeckers think does not exist in the rest of the country and that must be expressed, is an unwillingness to part with Quebec. I think that point must be made clear to Quebec. But who is to make it clear in Quebec? I think English and French Quebeckers who believe in Canada, and English Canadians and French Canadians from outside Quebec, must come to Quebec to campaign. This has never been done before. We have allowed this sort of media screen to dominate the debate in Quebec, giving it a totally skewed, one-sided view: "We've got to get concessions -- country doesn't work -- everything's got to be changed from the beginning -- if we don't have a new Constitution by next year, we're getting out of it."

What if the Premiers of the other provinces were to go from city to city, from meeting to meeting, in Quebec and explain the vision of Canada; point out the economic dangers of having different units face the United States, the real difficulty with the social programs; point out the successes of Canada, the fact that the rest of the country has not rejected Quebec, that the narrow nationalism that has come out of Quebec is really an old-fashioned thing, something that dates back to 19th century Europe, or first half of the 20th century, that has no place in a modern, open, free society; that while Canada has changed tremendously and should change some more with respect to reinforcing the role of French in the whole country, Quebec must also make some of the changes, the changes are not one-way. It is not that one place has been wronged and concessions must be made to keep it there, but that we must ask ourselves: Do we want this country, the basic elements of this country? And if we want it, then we must do the things that are necessary to keep it going. I would like, before passing over to the questions, to go through some of the articles.

I have given you two articles that I did not write. One of them, in this Saturday's La Presse, is by Marcel Adam, one of the most federalist commentators in La Presse, pointing out that it is very difficult for a federalist to be optimistic. Whatever happens, whether we accept last week's by-election as a true measure of what Quebec thinks -- because there are all sorts of things and a by-election is just a by-election after all -- it is nevertheless clear that if things go the way they are going, sooner or later, in a year, in two, four, eight, the opposition in Quebec will be in power. That is the nature of things.

The opposition in every democracy eventually comes to power. Making concessions when you expect to be dealing with that opposition in the future is simply weakening your position to begin with. What I would suggest to you is that the way to win Quebec is to make that option totally unviable. There is one country in the world today where the present main opposition party will never come to power. At least not until it has abandoned its principal option. That country is Italy. The main opposition party, with its 32% or 31% or 26%, whatever it is, will not come to power because its option is so passé. It might have 20 or 30 years ago, but today it is so passé nobody believes in it -- they themselves do not.

The same thing will have to happen sooner or later to the sovereigntist idea if Canada is to have a stable existence. Not that the party would disappear. But the idea of sovereignty must not be on the agenda every four years. No country works with a four-year plebiscite on its continued existence. That simply means that sooner or later in a bad year, in an economic crisis, the country will fall apart.

Given the fact that I think Marcel Adam is right, that making massive concessions in the jurisdictional area will simply be a prelude to separation, I would suggest to you one situation in which making such concessions would be justified and that is if we thought that Canada is bound to break up no matter what. Then it would make sense to do it over 10 years, to have a slow letdown in order not to have an economic jolt. But anybody who wishes to maintain Canada must argue against a massive decentralization of powers, against removing the federal government from all funding or from anything else, and against the idea that we are going to have two totally different Canadas.

The other article is from the Globe and Mail, pointing out the federal economic strategy for decentralizing. I think there is a connection between the extreme liberalism we sometimes see in the federal government and the decentralizing. One of the purposes for trying to weaken the central government is to attack the social programs and the type of Canada we have known, the Canada that people like, that all three parties, really, built up. Because it can fairly be said that for a period, 1950 to 1980, all three parties differed about the speed of changes but were basically creating this compassionate society. The compassionate society owes a tremendous amount on the one hand to Woodsworth and on the other to Trudeau and perhaps even to Diefenbaker. But there is a connection to be made between extreme liberalism, the free trade movement, and the attempt to decentralize Canada. I think it would be easier to do these things without a strong economically powerful central government.


The other thing I wanted to discuss is the notion of a distinct society. Should we recognize it? My answer is, yes. The reason we should recognize that Quebec is a distinct society is not because it needs special powers but because as a sociological thing of course it is different. It may be that Newfoundland is also a distinct society in some ways, if it were to want to be called a distinct society, as is British Columbia in certain ways. But Quebec has a more immediately visible difference: You arrive in Montreal or in Quebec City and it clearly is different. There is nothing wrong with recognizing it.

The logical error of Quebec nationalism is to assume that because you are distinct you need different legislative powers. It does not follow. It does not follow that you need asymmetrical federalism or anything like it. But I think all Canadians should recognize, first, that Quebec is different, and second, that Quebec has a role in assisting and promoting French across the country.

I think the presence of a strong, what we call a "foyer" of French culture permits us to generate the funds, the educational material, and so on that makes French viable across the country. The recognition of Quebec should be given right away and it should not depend on a deal with Quebec. We should simply recognize, all Canadians should recognize, the distinctiveness -- indeed the precious distinctiveness -- that Quebec brings to Canada. Because I think that without Quebec there is no Canada. Without bilingualism, there is no Canada. It is one of the things that is essential.

We should not go for asymmetrical federalism. There is a distinction to be made between recognizing Quebec's differences and asymmetrical federalism. Going against asymmetrical federalism and against weakening the economic union cuts out massive opting out or any of those things. I think the answers follow from what I have said.

The articles that you have, other than the ones I have commented on, deal with the essentially reactionary and narrow nature of modern Quebec nationalism. To put it bluntly, many Quebeckers are I think barking up the wrong tree. They should be looking for solutions to social and economic problems. The article entitled Why Save Canada? has not yet been published. It reflects much of what I have told you today: the need to maintain the union to a large extent; yes to Quebec, no to its extreme demands; in other words, the need to reassure Quebec without giving in to the legislative demands.

I think we are facing the moment of decision. If nothing is done we will either let the philatelic Canadians do away with Canada and then watch a 10-year or 15-year decline until we all say we had better join the United States because then we would at least have a vote about the economic decisions. It could reasonably be argued that in 15 or 20 years we could affect it in some ways. Just think about it. If you added 25 million people, of whom 20 million voted and 17 million would vote Democratic, you would possibly change the United States. We do not want that right now, but that is what would probably happen over 20 years if we decentralized.

The other thing to do is to let Quebec separate. I think that is an even quicker way for Quebec to become both totally provincial and marginal, a Puerto Rico, and for the rest of the country to become states in the United States. The one thing that must be done is an overture to Quebec and a campaign in Quebec. What we need is people with courage to call a spade a spade, to go to Quebec and to call it that in French. To say: "That is what the situation requires. We are here to tell you why we want you to stay and why we are not going to make it easy for you to leave. Nor are we going to make it easy for our own rednecks to do away with French or anything else. We are here to defend Canada and the three essential elements in Canada." That is the message.

Mr Bisson: I would like to thank you for your presentation. It left a lot to think about and challenges some of our views on the particular issues. Just a couple of quick points, and I have two specific questions.

One of the points you made was about the media. For every one article written within the Quebec media in regard to Canada, 26 of them are against a stronger federal government or a better presence within Canada. I would say that, to the opposite, the same is true here. We have seen the incident in Brockville a few years back. I think there has not been a real opportunity for the media to do some real education around this issue and get people in Canada, inside and outside Quebec, to appreciate what this country is all about and what it has to offer.

You made the point, and it is a crucial one, that no one ever tried to sell themselves to Quebec. I would think that is what happened in the last referendum. Mr Trudeau, then Prime Minister, travelled extensively through Quebec, along with many people from his cabinet and people on the pro-Canada side, to talk to Quebeckers about the benefits of staying within Canada.

The difficulty we find ourselves in now is that for a number of reasons, including what has happened in Quebec and how people feel about their governments because of economic situations or whatever, quite frankly people do not trust us. The average Canadian on the street looks at politicians at the provincial or federal level and says, "I don't trust you." And they are not willing, or maybe do not have the opportunity, to get into that dialogue with the citizens in Quebec or, for that matter, within their own provinces. Many, many politicians at the federal and provincial levels would love to be able to do that. On the other hand they also have to convince people within their own backyard of some of the things that you talked about. Can you shed any light on that?

Mr Grey: When you talk about the media here, I agree with you. I always maintain, and I think you will find it consistent with what I have written, that my criticism of Quebec is a criticism of nationalism in general. It is not a criticism of Quebec. I love Quebec, and I think Quebec is no worse, that it follows the same rules. For instance, I have always maintained that if the French had won the Seven Years' War, and Massachusetts had, because of its strength, retained an English minority, you would have exactly the same problem and same type of Bill 101 and Bill 178. It would be just as wrong. People tend to behave in certain ways for various reasons, and the media are the same in both parts of the country.

I would stress that there is one thing Ontario could do and I want Ontario to do it: that is, to disallow all the unilingual municipal resolutions, pass a law preventing such a thing as happened in Sault Ste Marie. I do not understand why it did not do it in 1986-87. I know you might have a problem with that. Sault Ste Marie, after all, does vote, does return a member, but of course that member voted against the resolution. I think, in particular, the present government could do it more easily because it does not have to worry about, say, the Orange vote, which it does not get anyway. When you pointed out that people are afraid of their own backyard, I think the moment of courage has arrived. I think the time has come not to have politicians but to have statesmen, to rise above the partisan, to risk losing a seat or two, or to risk displeasing portions of the electorate. One of the problems with the whole country, and all countries in the west, right now is that the fine developments in political science have allowed you to poll everything. You know that if you say this you are going to lose four seats there, and if you say this you are going to lose three seats there. Everybody can exploit it. The time has come to have a certain amount of courage. One has to risk that.

Ontario could immediately, because of the amount of publicity the Sault Ste Marie thing got, create a tremendous amount of goodwill by passing a law making it impossible for any municipality to do that in the future. You would not be hurting anybody either. After all, that was a symbolic thing, whereas in Quebec, say, the Rosemère thing was real.

About politicians, you are quite right. I think politicians, and I mention it in one of the articles, are in disrepute all over the world. I am saying it to politicians. It is unfortunate, but it is true. The things I say in "Why save Canada?" are so. I particularly doubt the capacity of some of our federal so-called statesmen to sell anything to anybody any more.


But that does not mean people should not try. I think particularly the provincial leaders of the other provinces would be taken seriously in Quebec if they spoke French and so on, but I would say further that I do not think the delegations campaigning in Quebec should be limited to politicians. Where are the artists, the athletes? What about people like Margaret Atwood, people like Robertson Davies? What about people like Mordecai Richler, who lives in Quebec but who has made a few sardonic statements that were given wide currency all over Quebec? With his wit, of course, he hit the point home, but why does he not go on a campaign to point out why he is doing that? What about people who are scientists and so on? There is no reason to limit this campaign to politicians.

It is a twofold answer: One, it is time for politicians in Canada to become statesmen in the crisis; and two, it is not only for politicians, it is also for other outstanding Canadians to join. Politicians could perhaps organize it, but when the delegation went to Quebec to speak, it would contain all sorts of non-political people.

Mr Ruprecht: I enjoyed your presentation. I found it of real interest, because I essentially find myself in agreement with it. I do, though, have two questions. The first point I want to make is that I think you are absolutely right: The moment of truth for us has arrived, we must come to some kind of an agreement with Quebec. We will be unable to stay in a country called Canada if Quebec secedes.

You said that the whole nationalist movement in Quebec will not be happy with concessions, and yet you are essentially making a number of concessions. One, you said, "Let's give them de facto power over immigration" -- which they already have -- "let's make concessions in terms of family law and provide them some economic powers." I would like to see how you can explain the differences, as I see them, on the one hand saying, "Let's not provide concessions, they don't work," and yet you are willing to make some concessions.

On the other hand, I have another point to make in terms of your "distinct society" clause. We as cabinet ministers at the time of Meech Lake were told that our job was to assure the residents of Ontario that the "distinct society" clause was not much, simply a symbolic gesture that Ontario would make towards Quebec, and that essentially it did not mean very much. Then of course we found out what happened, Bill 101 and other surprises. That is why when I hear you saying that we should again make some symbolic gestures in terms of a distinct society, because it does not mean much, there are no extra powers that Quebec needs -- those are your own words -- I am wondering how you can come to some kind of a consensus on that point.

Mr Grey: First of all, I am not talking about concessions. I never viewed the changes in the Constitution as concessions. I merely say that every constitution can be usefully amended after 125 years.

My amendments go both ways. On the one hand, I would concede, say, immigration and family law to the provinces for a number of reasons. I think immigration has lousy results in the provinces, but unfortunately I think it is de facto there and there is no point pretending constitutionally that it is not. But in exchange for that, we shall have stronger economic powers to deal with interprovincial trade barriers and so on. In other words, it is a modernization. Every constitution can be amended. The United States' Constitution had to be amended a few times to get rid of slavery, to allow an income tax, and it was very unfortunate that they could not get the equal rights amendment for women in the United States.

All I am talking about is, use this opportunity to bring it up to date. It is not a concession at all, because it goes both ways.

As for the distinct society, you are quite right. I was against Meech Lake. My point about Meech Lake was its extreme vagueness, and I think one of the death blows to Meech Lake was Bill 178. How can you assume that the matter is settled when you pass repressive legislation of this nature?

What we are talking about right now is something else. One should recognize two things: that Quebec, and perhaps other places if they wish to be so recognized, are, as a sociological matter, distinctive. Meech Lake would have been fine had we had a clause there saying, "Nothing in here derogates from the Charter of Rights." It would then have been a declaratory one. The problem with Meech Lake was the lack of clarity. What I am suggesting to you is that we can recognize the distinctiveness, but in such a clear way that nobody could possibly interpret it as a license to discriminate either for or against francophones across the country. All I am saying is that we can recognize the sociological fact that Quebec speaks a different language, that it has a different culture, but as long as we make it clear that this specifically does not involve additional powers, which is what Meech Lake did not do, then there is no risk.

This would be basically the answer to those two questions. The first one is that it is only what you would call in French a "remaniement," a modernization, a change of powers but without a net winner or net loser, simply to bring it up to date. The second one is that we should not pretend that everybody is exactly the same when they are not, as long as we make it clear that no special powers are being given for that.

Mr Harnick: You have indicated that the concept of selling Canada to Quebec is, in your view, a paramount procedure that we should be going through. At the same time, you indicate that you believe there has to be some recognition of a distinct society.

I put it to you that if you want to be practical about this and you want to sell a constitutional package that people understand and is palatable, we have to sell Quebec to a great many Canadians outside the province of Quebec. It seems to me that when you refer to things like Bill 178, and at the same time the distinct society, the contradiction in trying to sell Quebec to some Canadians becomes so obvious. It seems to me that, if you want to bring this home and solve the problem we are in, we have to have Canadians understand the position of Quebec. We have to understand why a distinct society is necessary, and in order to do that, we have to be able to demonstrate to Canadians outside Quebec that minorities in Quebec are not going to be forsaken by a "distinct society" clause. That kind of explanation seems to be lacking, virtually from every witness we hear from Quebec. No one will say, "Look, the `distinct society' clause is something we need to sell a constitutional package to the province of Quebec, but at the same time, minority language rights and minority rights generally in Quebec are not going to be forsaken, and that is something that Canadians have to understand." What can you tell us about that?


Mr Grey: I think you will find an awful lot in what I have submitted to you that says exactly that. I have an article that I published in the Toronto Star called "Bourassa Proposals Pose Threat to Minorities." There is one about "Strong Language against Nationalists is not Anti-Quebec" that came out in the Gazette, and you have another one about "Anglos as the Best-Treated Minority Doesn't Add Up." I point out that Quebec has not been fair over the last 20 years, that Quebec's claim to being so generous -- well, anybody who claims to be so generous is always very suspect. It should be the recipient who says that, not the giver, and that is all over the world. Anywhere you look, national claims of generosity are always somewhat suspect both ways.

But I agree with you. I think Quebec nationalism is one of the problems. When we are selling Canada to Quebec, one must point out to Quebec the difficulty of the rest of the country swallowing that type of nationalism. I think there are two distinct -- the word "distinct" comes up all over -- there are two sides to it.

There are some people, unfortunately, in the rest of the country who simply are a vestige of the old Orange sentiment, who do not like French, who would like Canada to be unilingual English, who do not understand why Quebec would keep a different culture. Those people simply have to be demonstrated to be a minority, a very small minority, no more than the visceral anti-English people in Quebec.

The other problem is that Quebec must do away with Bill 178. All I can tell you about Bill 178 in itself is that I am the lawyer for a group that has now received permission to present it to the human rights subcommittee of the United Nations, which binds Canada. We got past the first stage and we are now going to be permitted to make the argument that Canada should be ordered by the international justice system to do away with Bill 178. That would be one way in which the matter could be resolved.

But of course there are other problems. We know that Quebec is the one place, for instance, where public employment is not available for members of the minority, not yet. Quebec has made some admissions on that score in the last year. There appears to be a certain growing realization. But I do agree with you that one of the problems is nationalism. I am not saying we must give Quebec its distinctiveness and then let it do whatever it wants inside. I think the distinct society must function fully under the charter; and one of the common standards which is essential, the third principle that I gave you, liberty -- after the compassionate nature of the society and the bilingualism, the third one is liberty -- Quebec must conform to that one too.

I think we are in fundamental agreement, and if you read what I wrote, we definitely are. I will tell you that when I come outside Quebec, I argue for recognizing Quebec's distinctiveness. When I argue inside Quebec, I tend to go much more head-on for the nationalism and the narrowness of Quebec. But I think both of them must be recognized.

Mr Harnick: Who else makes up the Task Force on Canadian Federalism?

Mr Grey: We have a large number of people. I will give you a number of names. As with politicians, we have perhaps an oversupply of lawyers: Mr Roger Comtois, the former dean of law at the University of Montreal; Mr André Casgrain; Monty Berger, a communications person; Mr Morton Brownstein, the man who originally challenged Bill 101, and that led to 178. We have a mix of English and French Quebeckers, an imbalance of lawyers, but all sorts of people anyway.

Ms Carter: I agree with most of what you are saying, but there is one problem I had in the earlier part of your presentation. You said that Canada needs to stay together so that we can deal in a united way with the USA in marketing our things, like electricity and water from BC and so on. That is the idea I want to challenge, that our concept of the future of Canada is based on the idea of Canada as a resource-exporting country, because it seems to me that puts us in a Third World category. When you export these things, you usually do not get back the real value of what they cost you in environmental and other terms. I think somebody said earlier today in a presentation that our real wealth is our people and that we should concentrate on making sure we have a highly trained workforce that can do things that are going to bring wealth into this country.

Mr Grey: I certainly did not mean to say it is for the purpose of export. That is only a short-term thing. If we were being threatened, one could say we will not send you -- but normally, no. But I think one should understand that in a much broader economic way. First of all, I mentioned Ontario industry and other things like that, and high tech, but I would also say that, for instance, the possession of all of those resources permit us to have things like the national energy program, which might, for instance, allow us to have a double-tier price system for energy to develop Canadian industry. In other words, it might allow us to have countervailing force against free trade. The United States has all sorts of countervailing things; we do not. I find myself in a difficult position defending an economic system based on free trade, because I still do not believe in it. I think I was right in 1988. I believe it does not really work in our interest, to our advantage, whatever we do. But I would say this: The unified economy is not for the purpose of selling the resources but for the purpose of using the resources. They can be used in all sorts of different ways when properly planned. Of course it will not mean that we will be only selling the resources. I would hate to see that happen to Canada, and I do not think we would be able to keep up the social programs as a Third World exporting country. We would keep them up only if we have the greater wealth generated by the judicious use of the resources.

Ms Carter: I have a particular problem with the James Bay developments which, of course, are partly done and partly to be done. I think if I have a bone to pick with Quebec, that is what it is.

Mr Grey: I would say that environment is one of the things that must be federal. Quebec's statement that it will not allow a federal review of environmental things is simply not reasonable. That part, surely, is something that has to be dealt with across all borders. In fact, let's co-operate with the UN on environmental matters if we can. But certainly I would agree with you on that one.

Mr White: Just a couple of small questions, Mr Grey. I much appreciate your contributions. The issues of a distinct society; what powers are intrinsic in that; economic issues; the overview of the last 30 or 40 years as well; the definitions, what it is that makes up our community, compassion, bilingualism, liberty. Some of those things are implicit; some of those things are very clearly outlined. Bilingualism certainly is -- unilingualism, in certain areas; liberty, certainly with the charter, in terms of legal protections, at least. Compassion is not. You point out a period of 1950 to 1980 when a large number of programs were developed that really defined what our community was. I think implicit in that is that in the last while, those programs have been somewhat desiccated. I would think, from many of the presentations we have heard, it is important to make statements about those kinds of programs and that kind of compassion as part of a constitution, as part of a vision of what we are as Canadians. Implicit is a recognition of certain social and economic rights within a constitution. I am wondering, from your experience in Quebec, how you feel those kinds of issues would be felt within the province of Quebec, how they would be responded to.

Mr Grey: Those things have to be in the Constitution, those things are essential. I have tried to be non-partisan about it. I realize that it is much easier for these matters to be dealt with when speaking to New Democrats and Liberals than Conservatives, because for the last seven years, the Conservative Party has been more liberal in its orientation in Ottawa. Although I think in the 1950s, 1960s and 1970s, all three parties were working in the same direction.

But what I would say about Quebec is that nationalism, by its very nature, tends to be conservative all over the world. That is something Mr Hobsbawm pointed out as well. Ultimately, there are brief periods when nationalist movements appear to be progressive and reformist, but in the end, they are almost always used by those who do not want to discuss the economic question, because if you do not want to deal with the economic issue, what is easier than to say, "We, as a group, are fighting for our national ideas."

Quebec has been extremely conservative since 1973 or 1974, I would say. There was a short period at the beginning of the Lévesque government when they passed a few -- I am very much an admirer of the Loi sur les normes du travail, which I think was a very good law. But on the whole, Quebec is today conservative. Quebec is a society in which the heroes are the entrepreneurs, and the great tragedy is, if one of them goes down, it is a peculiar type of short-term blinding to the other issues.


My theory is that there was a time when Quebec was working to build exactly the same type of society with the rest of the country. That was the Quiet Revolution. The Quiet Revolution certainly restored French to its rightful place in Canada and in Quebec, and I am a great admirer of that revolution. Although it has been seen by many as a beginning of the nationalism -- Lévesque was in it and so on -- I think quite the opposite. That was the time when both Canada and Quebec were working in the same direction in the creation of a better, more open, more just, more compassionate world. One of the arguments I have with Quebec nationalists today is that it is people like myself who are the true heirs of the Quiet Revolution, people who were children then or teenagers. I want to go back to the ideals of the Quebec that I remember of 1963, 1964, 1965, which was breaking with Duplessis, breaking with a period of narrow nationalism. Exciting for French, yes, across the country, but not in this narrow way. I think the social issues will be easier to sell to a Quebec which departs from the narrow nationalists.

The Acting Chair: Professor, thank you very much. You have provided us with a very full verbal brief today with all the documentation that you have brought to us. You have helped us a great deal. I thank you also for your very quick responses to so many questions.

Mr Grey: I would like to thank you for having heard us, and I would like to see all of you in Montreal debating this in front of the Quebec media and showing how close Ontario and Quebec really are and how wrong those people who think that Ontario turned its back on Quebec are.

The Acting Chair: I would ask Professor Schwartz to come forward, please.

Mrs Y. O'Neill: Mr Chairman, as Mr Schwartz is coming forward, I wanted to question the timing this afternoon. I am wondering why one presenter is being given only half an hour who is quite an outstanding servant of the province, and everyone else this afternoon is being given an hour.

Clerk of the Committee: The scheduling was prepared on the instructions of a half-hour for each of these individuals. They were allotted the time shown. I was unable to schedule anybody for the 2:30 slot or the 3:30 slot. Each of the two presenters this afternoon requested that they be allowed, if possible, additional time. If I had been able to find anybody else to fill those slots, I would have, but I was unable to.

Mrs Y. O'Neill: I hope that when we get to the third presenter this afternoon, we will have some latitude, because I think this person serves the entire province in a very high profile position, and I think somebody looking at the schedule would get a very funny interpretation. I accept your explanation, but it is very hard to explain with just a piece of paper to present.

The Acting Chair: Let me be very clear, then. As far as I am concerned, we can stay as long as the committee wants to in response to questions and answers with Ms Frazee. There is no problem as far as I am concerned. We have had one cancellation as well. Mr Slattery will not be with us, so that gives us more time to question Ms Frazee.

Mrs Y. O'Neill: Thank you.


The Acting Chair: I want first of all to welcome Professor Schwartz from Winnipeg, Manitoba. It is very kind of you to give us a little bit of direction in terms of our deliberations on these very important issues. As you know, because there is no one on the 3:30 time slot, we do have some flexibility with time. It would be helpful if you would give us a good piece of time so that we could question you about some of the things that you raised in your deputation.

Dr Schwartz: My name is Bryan Schwartz. I am a professor of law at the University of Manitoba. First, to alleviate what is probably the greatest anxiety in the room, I will try to conclude my formal remarks as soon as possible and leave as much time as possible for questioning. With respect to whom I am representing, it is funny you should ask that because one of the points I always try to get across when I go to these things is that I am here as an independent academic, and I think it is very important that my particular segment of society try to contribute our own strictly independent, non-partisan views, which I will get to in a moment. I myself have advised governments from time to time, but I think when we speak at forums like this, it is extremely important to call it as we see it.

I think it is very unfortunate that one aspect of the Meech era has been the extent to which academics have not been available to provide you with independent, forthright, courageous advice, but are working for this special interest group or that government, and one has to have a good deal of scepticism about the sort of candour and the forthrightness of the advice you are getting.

Just to give you a little bit more background, I have been a student of Canadian constitutional reform for some time. I was a participant, as a government adviser to three or four different governments, in all the constitutional processes from patriation right through the last Meech round. So I have had some opportunity, not only as an outside academic observer, but as a participant from time to time, to see what is going on.

I have written a number of books in this area. One of them, which your predecessor committee was kind enough to order, was called Fathoming Meech Lake. I also wrote a book on constitutional reform with respect to aboriginal people. It is called First Principle, Second Thoughts. What I have provided you with is a collection of some of my post-Meech writings.

In these remarks, I want to focus on the question I was specifically directed to, which is the amending formula, and then just highlight what I have said about this other stuff very briefly. If people want to pursue it, I will be very happy to, but it would not be my intention to orally review all of this material. Of course, it is stuff I am very concerned about and I would not be at all displeased if people did pay some attention to it, but I will leave that up to the individual interest of members of the committee.

I was very honoured to have been invited here. The fax expressed a special interest in my speaking to the question of the amending formula or amending process. I submitted a comprehensive brief to the parliamentary committee on the amending formula -- that is known as the Beaudoin-Edwards committee -- and I have included that in my material. I cannot even deal with all the issues there.

Let me just focus on one point I would like to get across which is, in a nutshell, that consultation is not consent. There is no substitute for binding referenda. You can have forums like this in which you ask people what they think, but my experience and the experience of the Canadian people is that the only way you can guarantee that the wishes and aspirations of the people of this country will be respected -- not paid lip service to, not condescended to, but respected -- is to give people the last word. You can conduct all sorts of hearings, and I have seen it done, and it may not have the slightest impact on the outcome.

Let me speak a bit from personal experience. This is about the seventh committee, I believe, that I have appeared before. Largely at my own expense, I went out to the New Brunswick hearings. By the time the report was issued, the chairs of the committee, I think, had been removed and replaced by other people. The final report did not even accurately reflect what the objections to the accord were. What emerged was basically what Premier McKenna obviously would have arrived at with or without public hearings.

Mr Ruprecht: Interesting comment.

Mr Schwartz: I appeared before the Beaudoin-Edwards committee. Before the Beaudoin-Edwards committee issued its report, the federal government had already announced what the process was going to be, the supercommittee.

I appeared before Spicer. Before Spicer was issued, we were already told what the process was going to be. In fact, since the Prime Minister, without consulting the other party leaders, appointed the members of the Spicer commission, it was possible to predict pretty much what was going to be in the report. In fact, I did, in writing, and I think my prediction, which was issued four or five months before the report was issued, was pretty good, right down to predicting which buzzwords would emerge.

I appeared before the Charest committee. A unanimous report, actually in some ways responsive to what people had to say. A couple of weeks later, Lucien Bouchard resigns and the Charest report ceases to exist for any practical purpose.


I think the report that your predecessor committee did had some merit to it. I did not agree with many of its conclusions, but I think it made a better effort than most to at least try to acknowledge difficulties. Your predecessor committee was very clear that the public demanded consultation, but what happened at the end, what happened after three years of people saying, "There ain't going to be any more Meeches, never again"? I was there in June at what I call the Stockholm-syndrome meeting in which premiers were once again closeted in a room, once again forced to make decisions under tremendous psychological coercion. What ever happened to the three years of people going to committees and saying, "The Constitution belongs to us"? What happened to, "Never again"? It happened again.

I do not think politicians should be bound strictly by what people say at these kinds of forums and I do not think that just because the majority of people say something, you have to agree with it; or that if the majority of people say something in these forums, that makes it right. But on the other hand, I do not think that what parliamentary committees decide ought to be the authoritative voice on what we do with our Constitution. It seems to me it is a first principle of democracy that when you make fundamental and irrevocable changes to the nature of this nation, the people get to decide. Why not? Let me deal with some of the "why nots" I have heard.

First is the parliamentary system. Ours is a parliamentary system and therefore politicians will decide and people will not. One of the whole ideas of a parliamentary system is that yes, you can make these decisions and the next Parliament can reverse them. Sure, you have a system of accountability. You can make decisions and then, if the people say, "Throw the bums out," and they do, they can reverse the decisions.

With constitutional reform what you do is, for all practical purposes, irreversible. This is not a pendulum when it comes to constitutional reform. The pendulum does not swing back and forth. There is no practical possibility, for example, that once there has been decentralization, this pendulum can ever be reversed. Can you imagine 10 provinces agreeing to transfer power back to the federal government? It is not going to happen. So we are talking about changes that cannot be undone, even at elections. Of course, even if we get to elections, who has promised us we are even going to have an election before this next constitutional package goes through? I do not think anybody has.

Even the creators of the parliamentary system we talk about, the people of Great Britain, recognized that when you are doing something structurally fundamental and practically irreversible, you consult the people directly. That is what Great Britain's Parliament did with respect to entry into the European Community. That is what they did with respect to devolution of powers to Scotland. If you are citing the parliamentary system as the reason not to have a referendum, the parliamentary system is based on a system of electing people, giving them power and, if you do not like it, throwing them out and reversing it. That does not apply with respect to constitutional reform.

Why not consult the people? It is said: "We can't consult the people because we don't want yes/no decisions. We want to be able to consult and adjust things and play around with things until we get it right. You can't do that if you've got thumbs-up/thumbs-down referenda." Of course, everybody is in favour of adjusting things, compromising and consulting, but the bottom line is that sooner or later there is going to be a ratification point. Sooner or later the legislatures have to vote yes or no. Whatever package emerges from this and comes to this Legislature, it is not going to be, "You want to adjust this clause," it is going to be yes or no.

There is a yes-or-no point, and I say that yes-or-no points should be left with the people. The fact that the people get to decide the bottom line is going to very much encourage people to compromise, to consult. Who wants to face the people and then be told, "Get lost"? The fact that at the end of the day you have to face the people, it seems to me, is going to encourage a spirit of accommodation and compromise.

Then there is, "The people aren't smart enough or enlightened enough. Sometimes politicians have to make courageous decisions," or "Sometimes politicians have to look after minorities," or "Majorities cannot be trusted to protect the rights of minorities," or whatever. When it comes to questions of minority rights, some majority is going to decide. Again, the question is, is it going to be the majority of people in the Legislature or is it going to be the people? Do we have reason to believe from recent experience that legislatures are more sensitive, more enlightened about minority rights than the people? It is hard to say about the people because they have never really been asked.

I cannot guarantee it, but during the Meech round I did not see a great deal of sensitivity to minority rights. I did not see a lot of people terribly worried about what was happening to the future of self-government in the Yukon and Northwest Territories or the rights of anglophones in Quebec. It was not such a problem, was it? Was anybody too terribly concerned about the effect of the spending power clause on the future of social programs? Some people were, but apparently not enough politicians to make any difference.

On the other hand, I think that if politicians of this country trusted the people enough, they would be pleasantly surprised to find that the people of Canada are actually quite well informed and quite tolerant. The prospects of achieving a state of reconciliation and amity are considerably better if people have chosen solutions for themselves rather than having them foisted upon them by people who purport to be somehow more enlightened.

The people of Canada will eventually support some form of aboriginal self-government. They will not support a state within a state, but they will support some sort of reasonable federalist accommodation. They will be a lot more happy about supporting it and financing it and living with it if they have been given the opportunity to approve it rather than thinking, once again, "These guys are forcing this down our throats whether we like it or not."

With regard to the idea that not consulting the people avoids a division, I do not quite understand the reasoning here. Is it that you are going to force through some sort of package which, if put to the people, would cause division? That is how you avoid bitterness and confrontation? You do something anyway even though, if you had put it to the people, they would not have accepted it? It does not make a whole lot of sense to me.

The Acting Chair: Could I interrupt just for a moment, Professor?

Dr Schwartz: Yes.

The Acting Chair: I am not quite clear yet. Are you at this point making a presentation or are you speaking about the process that this committee has gone through over the last period of time?

Dr Schwartz: No, I am speaking specifically to the question of whether the amending formula should include provisions for binding referenda.

The Acting Chair: I am sorry. I was not quite following you. Thank you for that comment.

Dr Schwartz: I am sorry if I did not make that clear. I was just trying to illustrate the point about whether consultation is a substitute and I was giving some examples. There was certainly no offence intended to this committee. I am very honoured to be here and I have had some good things to say about your previous efforts, although I would not give them an A-plus. But my point is to use these illustrations of why it is that recent experience has shown to us, I believe, that we have to have binding referenda.

There is one point that I think is often missed in this discussion of referenda: There is a problem with politicians. Politicians are always telling us what the problem is with the people. Let one of the people tell you what the problem is with politicians. There is a conflict of interest, to some extent. Politicians, when they write constitutions, are to some extent deciding what their own powers and positions are going to be.

It is not just a theoretical matter. If you look at Meech Lake, when the premiers got together, one of the things they decided was that it would be really good if premiers had more power. Not just if provinces had more power, but if premiers had more power. I mean, what happens when you put the Prime Minister and 10 first ministers in a room? It turns out they decided it would be really good if premiers got to make Supreme Court appointments, if premiers got to decide whether to opt out of social programs, if premiers got to nominate senators, if premiers got a ticket to first ministers' conferences on the Constitution every year for ever, if premiers got the right to attend first ministers' conferences on the economy. You leave the decision-making process up to the executive and you get executive federalism.

The only way to break out of that loop, it seems to me, is to sooner or later give the people a shot at it. In fact, for example, I am not optimistic that the politicians are going to allow people to have referenda. The approach that was taken in Beaudoin-Edwards was, "We'll have a referendum if we're sure we can win it or if it looks good, but we're not going to promise you a referendum up front." On the other hand, if you ask the people, "Do you want a referendum?" I would think the people would tell you, "Yes."

Some sort of natural difference in perspective is going to occur between politicians and the people. Some use that different perspective to say that people should not be allowed to decide because they say that somehow the people are more impassioned or less informed. But I think you should look at the flip side of the coin, which is that to some extent, if you are deciding on your own powers, there is a problem with keeping a monopoly on decision-making within your own hands.

Even though we do not have time to set up a binding referendum for this coming round, I think provision for a binding referendum should be contained in this package, and this package should not be passed until there is a referendum on it.


I have a lot of things to say about other aspects of the amending formula, about the Victoria formula, opting out and so on, but since time is very limited I will just focus on the one point about the referendum. I would be very happy to answer any other questions you have, but just to conclude, I want to briefly touch upon what I have to say about the other thing. Again I would be very happy to answer questions, but I will try to be respectful of your time and those of future presenters and keep my main presentation very brief.

With respect to the Canada clause -- and that is one of the issues I wanted to revisit in the brief I prepared especially for this committee -- it is unfortunate that we are drawn into these discussions about symbolism and rhetoric and so on. Frankly, I have always thought and always said in my writings that I think the approach to constitutional reform should be to try to avoid the divisive rhetorical debates and find common ground. One of the ways you find common ground is to focus on where you are going in terms of practical arrangements and not try to get everybody to agree on ideology. I do not think people have to agree on ideology, I do not think people have to share a vision in order to have a workable country. To some extent a Constitution is a way where people who have different views, and legitimately different views, can live together. They should not all have to subscribe to the same official ideology in order to write a constitutional document. It looks like there is going to be a lot of impetus to have some sort of symbolism there because of Quebec's demand for recognition as a distinct society. I have a very few points about that, although many more are made in my brief.

First, the Canada clause should have Canada in it. When Manitoba proposed its Canada clause it emphasized that first and foremost all parties have to commit to building Canada. That is not the same as having a so-called Canada clause, which recognizes multiculturalism, Quebec and all sorts of other good things, which does not express the whole as well as the part, which does not say, "We're committed to Canada as well as all the aspects of Canada."

The Canada clause that I have propounded and the Canada clause that the Manitoba government has supported is called the Canada clause, and I think Manitoba gets some privileged ability to style it because it invented it. It starts first and foremost by saying, "Yes, we all have these different regional and ethnic identities and yes, we're all committed to living together in Canada." If out of this process comes a Canada clause without the "Canada," it is going to say a great deal about constitutional politics in this era, which is that consensus or the illusion of consensus was achieved by accommodating everybody in their special identity, but the political will and courage simply did not exist to even say that we have a collective identity, that all the chips on the mosaic can be put up but nobody is prepared to say there is a wall on which the mosaic rests. To me this is going to be one of the litmus tests of what this round is all about, whether there is a Canada in the Canada clause; and not just a recognition, "Yes, Canada exists as a federal state," but a commitment to living together and to building Canada, to talking about a Canadian identity and a Canadian society as well as all these other identities.

Multiculturalism has taken a lot of bashing lately, particularly in the Spicer report. Some of that bashing is fair. Some of it is unwarranted. I think the conclusion of the Spicer report is deplorable. Basically it says if people know too much or they follow their own ethnic identities too much, they are not going to be good Canadians. It actually says in the Spicer report that you should only allow heritage schooling for young children and only for a year until they get used to being mainstream Canadians.

I thought that one of the assets this country has is that people come from all over the place, they have all sorts of backgrounds and you can actually draw on that to make them more interesting people and have a more interesting and knowledgeable country. If British Columbia wants to have a heritage language program in which people from east Asia can continue to speak Japanese or Chinese or whatever, I think that is better for them as individuals and it is better for us as a country to have people who are knowledgeable about other languages. I am against, and I have been against, the form of multiculturalism which is buying votes in blocks, just a form of pork-barrelling. I do not know why anybody would be in favour of that, and there is resentment about that aspect of multiculturalism, but I do believe that multiculturalism should be recognized as a historical fact about Canada. It has a legitimate place in our future, and that should be expressed in the Canada clause.

I think there should be commitment to rights and freedoms in the Canada clause. I will refrain from nattering on now. I would just say, partly in response to the question that Mr White asked somebody else, that yes, I think the Canada clause should express some of our social values, but that is not enough. In other words, I am in favour of that, but just making statements about how we want to have a socially just society is not good enough. I am not suggesting you were saying that. I am just saying that is not going to be enough.

If you are going to have a just society, I believe the raw political fact of the matter is you have to have a strong national government. You cannot have these social programs with massive devolution. It is not going to happen. That is one of the reasons, as Professor Grey was pointing out, why the very powerful big-business lobby in this country is all for devolution. They are very well aware of the fact that there is no such thing as conservation of political power: You can take the power from the Senate, give it to the provinces, and the power is still there.

I believe the fact of the matter is that once you have neutered the federal government, the ability of big business and other special interests to manage the provinces is pretty good, and the prospect for regulation in the public interest and the preservation of social programs is very poor.

I would suspect that the "distinct society" clause -- I am not optimistic about this solution being followed, but I would say very briefly, you know, just as a clarification, that I would not be optimistic about that. Everything that you say about a distinct society is going to be compared to what was said in Meech. If you clarify and protect, in direction, the Charter of Rights, Quebec will not accept that. If you do not, it is going to run into the same problems as before.

I would suggest a little lateral thinking here. The federal Tories have thrown out some language about "unique character" and so on. I like that language better anyway. I think it is less separatist in its connotations. It might not be a bad idea to break out of a language which many Canadians find offensive and which has this very troubled history, and try to find another way of expressing Quebec's unique character.

"Unique character" is actually a pretty good phrase. You can go on and say that its unique character consists of having a French-language majority and an English-language minority, and a civil system of law, and all that stuff. It might not be a bad idea at all, given the checkered past of the particular phrase of "distinct society," to think laterally on this and try another idea which seems to have some promise.

The question of Senate reform: I do not know how much interest it has had at these hearings. I very much believe there should be Senate reform. Now, if the idea of Prince Edward Island having the same number of seats as Ontario sounds ridiculous, it is because it is ridiculous. On the other hand, I would point out, with respect, that there has been a raft of reports, including two by federal agencies -- a parliamentary committee on the Senate, and the Macdonald royal commission on the economy -- all of which have the same bottom line, which is that small provinces should get half as many seats as big provinces, except PEI, which should get a few less. A special case would be made for PEI; otherwise all small provinces get half as many seats as Ontario and half as many seats as Quebec.

I think that is a very reasonable balance between saying all provinces are equal -- which is clearly going too far away from one person/one vote -- and on the other hand, trying to make a complete mockery of the Senate reform movement by saying we have four equal regions. The four equal regions stuff is completely unacceptable to anybody who really cares about the principal purpose of Senate reform, which is to give more clout to the smaller provinces. In fact, as far as western Canada goes, it would actually reduce their representation in the Senate.

I do not think it is unreasonable to say that Manitoba could be half of Ontario in a body which had limited powers. I do not think the Senate, even if reformed, should have as much power as the House of Commons. I would point out that it is not okay to trivialize the Senate reform movement by saying, "PEI equals Ontario, and that is unacceptable." It is unacceptable. There are reasonable alternatives. They have been stipulated. They have been stipulated by federal agencies as well as people from western Canada, and I think they should be given serious consideration and implemented.

Again, of course, I do not believe the Senate should be able to paralyse the House of Commons. If we are going to have Senate reform, then the Senate should be structured in a way in which it is not capable of permanently paralysing the one person/one vote House of Commons.

The other thing I focused on in my brief, especially for this committee, was the future of the social programs. I did promise I would keep the introductory remarks as brief as possible, so if people want to follow up on those, I would be very happy to speak to them. Otherwise I would conclude as I began, by thanking you very very much indeed for being invited here. I am leaving myself open to any questions you might ask.


Mrs Y. O'Neill: Thank you, Professor. First of all, I want a clarification. You painted with a rather wide brush a lot of the committees that have taken place, the consultation process in the country. You mentioned the New Brunswick committee, and I want to clarify whether that was the one in existence now or the one that was in existence in 1987-90.

Dr Schwartz: The 1987-90 one.

Mrs Y. O'Neill: Okay. Now I would like to, if I may, talk to you about your ideas on referenda and have you respond to some of it. You are one of the few people who have really tried to help this committee by being rather specific about the concept of referendum. Many people have come and put it as one of their options, among a mix of other things that they consider priorities. I certainly have not had time to read through the rather large brief you have presented to us, but you are talking about "binding referendum." As I think I read in your amending process, you are talking about the impossibility of opting out -- and that is what I consider binding -- yet opting out has become really a very accepted tradition and seems to be very much treasured by many Canadians. That is one concern I have, the binding referendum concept.

The other problems I have are that somehow or other I feel you have put referenda on the table and suggested that if there is one held on December 1, 1993 or any other date that anyone may choose, that it is a permanent decision for Canadian people, unlike an election that may be held on December 1, 1993 in any given province or at the federal level. I have some difficulty with the distinction between a decision made regarding an issue and a decision made regarding a choice of government as being permanent. I think you have said that your amending formula could be accomplished incrementally. I think that is the word you used. Therefore, I would like you to comment on the binding and on the permanent nature of the referendum.

My concerns about referenda -- and I am certainly not closed in my mind on that; I have tried to study that issue as well as the constituent assembly because I think we have an obligation to deal with those -- but the percentage of the population that participates in any vote opportunity concerns me. It concerns me mostly at the municipal level. It sometimes concerns me at the national level, and I suppose every three or four years it concerns me at the provincial level; but that to me is something that would not maybe change with the referendum. I also have some difficulty with the round we are into now, and the expectations that are built across this country of the many, many issues that would have to be on a referendum. I am certainly very respectful of the witnesses that have come here and the constituents I have and, indeed, the provinces in this country. I respect people and I hope that has been one of my basic principles, but I just do not know how logistically a referendum could include the issues we are dealing with in their number, let alone their depth.

My final comment to you -- and I know I am challenging you some, but I think you are certainly not unfamiliar with challenge. I see, somehow, that you have ignored in your presentation the process that is going on in many rooms in this building, of consultation and amendment as we go clause by clause. I have sat for four years now consistently on committees, and I have seen a lot of legislation changes. It proceeds through committee, and certainly in even third reading in the House from time to time. I think that is very healthy. I think it happens and I do not want people in Ontario or anywhere else in Canada to think that legislation made in Houses in this country cannot be amended and amended significantly. So perhaps you would like to comment. I think I have made enough of a question of some of the statements you have made.

Dr Schwartz: I will try to make these very brief. That is with no disrespect to your questions. It is just that there are about five of them, and I know there is a lot of time pressure here, so if I have not made myself clear on anything, please let me know.

With respect to binding, by that I mean, in the brief, that it is legally decisive on whether the amendment goes through or not. That is what I mean by binding.

You raised another point which I have also addressed, which is whether we should allow opting out. Now, those are partly separate questions, because you might disagree with me on whether we should do away with opting out, and I would not commit seppuku if at the end of the day we continued to allow opting out. I would be a lot more upset if we did not have referenda at all. One is a question about the people getting the last word, and they could have the last word according to different amending formulas. The other question is, what is the amending formula? Does it allow opting out?

With respect to opting out, I think opting out is a very important protection for minority rights in this country, and you could not do away with it unless you provided for a very high level of consent and substitution for it. I have suggested that you would have to have eight of the provinces, you would have to have 60% of the people, and you could not have objections of more than 60% in any one province. In other words, if any province was not only against but very strongly against, that would kill it.

I would like to see one all-purpose amending formula instead of this more complicated and checkerboarding opting-out system. I would emphasize, though, that whether you agree or disagree with me on that, you still might be able to find your way to agreeing with me on the idea that we should have the people having the final word. We could keep the existing formula and still have it operated by the people instead of by the legislatures.

You asked the difference between elections and referenda. I tried to make the case that constitutional reform really is irrevocable in this country, and that it is not: "Well, we made a mistake. Whoops. Let's go back and try to restore the federal spending power." That cannot happen, as a practical matter. To give away powers is easy. It is very easy to get 10 provinces to say, "Thanks, yeah, power is good stuff," and apparently not so hard to get a federal government to give it away. You just need the federal government to give it away and it is gone. To go in the reverse direction, for all practical purposes, you would have to have, under our amending formula, unanimous consent of the provinces. Provinces could either veto it or opt out. The odds of 10 provinces suddenly saying, "Wait, we went too far; we are giving it back," is zero. Quebec, for example, is not going to agree that "We went too far; we are going to reverse the direction." Constitutional stuff is irreversible in a way that elections are not.

The second point about referenda versus elections, of course, is I do not think elections are a fair test of an idea. People vote in elections for all sorts of different reasons, local issues and a constellation of national issues. I am not sure whether most Canadians -- when I say I am not sure, I am not saying that equivocally. I actually do not know whether most Canadians were for or against free trade in the last election, but it is quite possible that most Canadians were against it, and there was still a whopping majority of people elected who decided to implement it. I do not think you are going to get the clear test of whether people are approving of this package in an election. And what happens if all the parties support it? Then people do not have any choice at all. Who did you vote for in the last election at the federal level, if you did not like Meech?

The size of the package: I think that is a perfectly legitimate concern. If you are asking people about 10 different things and asking them yes or no, that does not make a lot of sense. But I think the solution is you should not ask people about 10 different things. Ultimately, this round should not be about 10 different things. Under this time pressure, given the complexity of all these issues, I do not think this round should reform all our institutions, rewrite the division of powers, establish aboriginal self-government, rewrite the regime of bilingualism and so on.

I find all these things pretty complicated. That is why I tried to address them. But when I handed you this whopping submission, I said: "Look, I know this is a lot of stuff. I don't expect you to read all of it." But I don't know how much of this stuff is going to be dealt with. If there is going to be this megapackage, then I am going to try my best to address the various things that have gone on.

I do not think this round should deal with all those issues. If it does deal with a few issues, even those could be separated. We could have a referendum on division of powers, another referendum on the amending formula. I think your concern is perfectly legitimate, but I think it should be dealt with by acknowledging it and adjusting the referendum process accordingly, not by rejecting the idea of referenda.

Did that address all of your questions?

Mrs Y. O'Neill: Thank you.

Mr White: It was a very interesting presentation. Certainly you argue very well in favour of a binding referendum. I quite agree with you. Very clearly what we are talking about is a redefinition of what we are as a country, what our vision is as Canadians. It is very important for the public as a whole to have a real sense of ownership of that, a real participation in that. However, there may be some problems with referendum or referenda. Certainly that is one major option, but it may not be the one that is chosen. I am wondering what other suggestions you might have. When you were talking about public participation, you sort of put all your eggs in one basket, all your arguments in one basket with regard to a referendum. I am wondering whether you could speak to other forms of eliciting public participation.


Dr Schwartz: As many as three years ago I think I was one of the first people to propose that there should be a constitutional requirement of consultation, including public hearings, before you have amendments, but, in order to make those meaningful, you have to give the people the last word at the end of the day. That is where I began.

With all due respect to members of this committee, I think recent experience has demonstrated that it is quite possible to go through a process of consultation and for it not to have a significant impact on the outcome. Just look at Spicer. You are overwhelmingly told you believe in the equality of provinces; response to the Spicer commission, "We hear you and you're stupid." That is what the Spicer commission told the people of Canada and said, "Don't you people realize that BC has a special provision for railways? What is the matter with people? We're not up to speed here." So you say, "Even though most of the people believe in this stuff, the fundamental principle of Canada, which --

Mr White: My question was really not to dispute with you the importance of a referendum or that it might not be an excellent means of gauging and encouraging participation, but about other means as well.

Dr Schwartz: The point having been made, obviously, that I do not think these other things are sufficient and I do not think they are meaningful unless accompanied by this. Of course I think these public hearings are a useful process. As I say, I am a veteran of seven now. I do not know if this is seven times lucky or not.

A constituent assembly is probably something you are considering. I do not have any glib answer to that because it all depends on what it is and how you do it. I make these observations: (1) If there is a constituent assembly, it must be elected, not appointed; (2) If there is a constituent assembly, I think it should deal with a very limited package of issues and we should experiment with it. Nobody is smart enough to know how the constituent assembly is going to work out until we have tried it. How could we possibly know, in the Canadian context, how a new experiment is going to work?

Are we going to gamble the future of the country by putting everything on the table in an untried process? The Canadian way, I would suggest, at least what used to be the Canadian way, is more incremental and experimental. I would suggest we take some big issue like the social programs or fiscal relations. It is big enough but still one definable issue. Let's have a constituent assembly on that and see if they can come up with something, or let's have a constituent assembly on institutional reforms or even on something like training and education, and what the division of power is.

I do not think we should be stampeded into allowing the current government or the current constellation of politicians to rewrite this country from top to bottom, and I would say that about any group of politicians. I would make the claim about any group of Canadians at any time that we should show some humility about our ability to deal with a whole wad of complicated issues under time pressure and foreclose the ability of future Canadians to come up with something different.

I think the incremental-experimental tradition should be respected. I think the constituent assembly is an idea that is certainly worthy of experimenting with and perhaps is a way of reducing the fears to a level where we can actually have one. I am one of those people who have a lot of concerns about what happens if you put the whole Constitution up for grabs. There are no parameters in an untried process. I would be very happy to say, "Let's have a constituent assembly in a couple of months on a couple of important issues."

Mr Ruprecht: I congratulate you, Professor Schwartz on your presentation. I want to put you at ease somewhat. From your perspective as an academic, you have probably been treated the same way before every committee. I just wanted you to know that in my previous life as an academic at York University, I appeared before the Senate foreign relations committee. You will have similar treatment in the United States before government committees, as you will probably receive in any committee that deals with important items. They seem to have their own agenda. But I think we are here today in a different situation where we have to come to a conclusion on whether we want to have Canada remain as a country. As the previous person indicated to this committee, if this is not the case, Canada will break up and we will not have a country, obviously.

I would like for you to point out to this committee what our previous presenter had indicated, because you have some expertise not only in the remarks you have made but in other areas. I want to address specifically the "distinct society" clause. In your opinion, Professor Schwartz, would you say that Quebec may not be aware that the "distinct society" clause is only an expression without significant enhancement of power? In other words, is it simply symbolic, and will they accept a symbolic statement from the rest of Canada that a "distinct society" clause should be accepted within that round as a symbolic gesture? What would you say, that this will not be accepted by Quebec, that Quebec will realize what the rest of Canada indicates as a symbolic item and react to that and consequently wish to have additional powers granted to it and that will not be acceptable?

Dr Schwartz: During the Meech round maybe we were too much obsessed with the legalisms. A symbolic statement is not important if it is only symbolic, or we do not have to worry about it if it is only symbolic. I think symbols translate into real power. For example, if the Quebec government understands this is what "distinct society" means, when the people of Quebec understand that, it does not matter what the Supreme Court of Canada says.

For example, on outdoor-sign laws the bottom line was not what the Supreme Court of Canada said. The bottom line was what the people of Quebec thought and what their Legislature thought. It is very important that we phrase these things in a way that, even if they do not have curial impact, even if they do not change the outcomes of lawsuits, we come to an understanding so that when these things are invoked at the political level they do not cause division and ill feeling.

I am more concerned, frankly, about the way "distinct society" will be used by politicians and the way it will play out in the political psychology of the country than I am about what is going to happen in the courts. I think it may be possible to put Quebec's unique character in a context in which it is acceptable. I think you would have to recognize explicitly the principle of equality of provinces, and I would point out -- and this is not generally recognized -- Quebec has agreed to the principle of equality of provinces. They signed the political accord at Meech in 1987, which included their agreeing to the principle of equality of provinces. It was not in the draft amendments, but it was in that political accord.

It would have to include a commitment to the Charter of Rights and Freedoms and its commitment to liberty that Professor Grey spoke about. Maybe if you state affirmatively these other values, that we are still interested in building Canada and that we are still interested in the equality of provinces and in rights and freedoms, then we can also talk about the Quebec unique character. Then you have not restrained it by narrow and niggling definitions; you have restrained and constrained it in a more positive and constructive way by saying, "Here are all these other things that are going on," and you have placed it in a context which prevents it from getting out of hand; but on the other hand it does not force you to say, "You're not this, you're not this and you're not this." I think that may be the way to proceed.

I do not think it is going to be really promising in this next round, although it may happen, but I think if the "distinct society" clause comes up again, the first thing Quebec lawyers and the human rights lawyers in the rest of the country are going to do is to compare it to what was said in Meech. If you say "distinct society" again and this time you say, "This doesn't affect the charter," Quebec is going to say, "Get lost." If you say, "distinct society" again and you say, "This does affect the charter," then you are going to have exactly the same concerns you had last time.

In addition to the fact that I think "distinct society" is an unfortunate phrase to begin with, almost nobody has a problem with Quebec's unique character, but I think that particular phrase is not a fortunate choice of language. Maybe if you used a different phrase to begin with, like "unique character," then you would not be suffering this problem of everybody immediately going back and comparing it to the ill-fated Meech round and it is major trouble and something might get forced through this time. It is not going to go through against Quebec's wishes, but if it is not going to be possible for those of us who think it should have a language-restraining effect on the charter to get that language, it means the same people who were unhappy last time will be unhappy this time.

Mr Ruprecht: Can I ask another question, Mr Chairman, or is my time up?

The Acting Chair (Mr Malkowski): No, I am sorry, we have another person who would like to ask a question.


Mr Bisson: I would like to follow up a little on something Mrs O'Neill talked about with regard to the parliamentary system and, leading to that, the constituent assembly you talk about. Just as an observation, the first thing is the tone of what I have heard you say with regard to our parliamentary system. I get the impression that you seem to have less desire of a parliamentary system versus others. I might be wrong, but that is the way I read it.

I just bring up the point of what Mrs O'Neill talked about, that if we looked through the democratic world of what is out there, some 28 countries, those countries that have made bigger strides in being able to deal with social and economic issues in providing what we can call a "just society" to the people living within its boundaries, have done it within the parliamentary system. We look at England, Canada, New Zealand, Australia and others. The great strides have been made because the system is flexible in that it does have a certain amount of decentralization, to the point of allowing provincial legislatures, in our case, to be able to bring forth legislation by which other legislatures follow, and eventually federal government comes on side.

The sense out there on the part of the people is that we are not going to trust those politicians to be able to negotiate a deal because, after all, they do not represent our views. I think that one difference -- and being a new member to this assembly, not as a New Democrat -- is the one ability this job gives me as an MPP or, as some people call it, an MLA, to be able to look at an issue from more than one side. My views are quite different today from when I first came into this Legislature on specific issues of economy, on social issues and a number of others, because I have had the opportunity to sit down with different people within my community and listen to both sides of the story. That is the one tool we have as parliamentarians. Maybe we do not have all the answers, but at least we have that ability of being able to look at things in a number of different ways because of our jobs.

I refer to your brief, and it distresses me to a certain extent. You say within your brief:

"Politicians are another matter. When push came to shove, almost all of the senior ones were prepared to ignore public opinion in the process with Meech. Some may have acted primarily out of genuine conviction; others may have been influenced by self-interest. Four provincial premiers signing Meech meant simultaneously looking and feeling like a statesman, a national builder or a new Father of Confederation."

That was one of the criticisms that was leveled at our last Premier, which I tend not to agree with. I think what Mr Peterson tried to do is a realization of what is going on within this country. We needed somehow to try to put an end to some of the problems we have with regard to our constitutional dilemma. It is exactly that attitude that has led us into this position, that people within our system try to sell short the work politicians are trying to do. Politicians on all sides may not agree on certain issues. But certainly we have some common ground that we work with and try to work towards solutions of our problems, which leads me to the point about the constituent assembly. All that being said about politicians, the types of things I have seen within your brief, that is very much what we are hearing within the general public, so it is not any different in that respect.

You say a constituent assembly would have to be an assembly that is elected by the people. Well, do they not become the politicians? If I, living in Manitoba, vote for you to become my representative at the constituent assembly, do you not all of a sudden become that politician I cannot trust because you are not going to take more note of my views, because you will say one thing during the elections, become my representative at the constituent assembly and do another thing when you get to the constituent assembly itself?

Dr Schwartz: Again, the whole question of the value of the parliamentary system is a larger one than I can do justice to. Let me start by saying that I like the many aspects of the parliamentary system. It still remains my preferred system.

Mr Bisson: I hope you try to promote it somewhat.

Dr Schwartz: The parliamentary system has the advantage of this very warranted humility I spoke about, that you can try something, and if it does not work you can try something else. I do not claim to have platonic access to the truth but, on the other hand, I do not think anybody else does either. I am very concerned about massive constitutional reform, putting in place a process based on a particular time and perception and having that irreversibly imposed on the people of Canada.

The point I tried to make about referenda, and perhaps I will be repeating myself a bit, is --

Mr Bisson: I am speaking about constituent assemblies at this point.

Dr Schwartz: I was going to address your saying all these parliamentary systems have been successful. One of the points I tried to make is that even parliamentary systems have recognized that constitutional reform is different. There is a difference between stuff that can be undone and structural, irreversible reform, and that is why the mother of all parliaments set up a referendum concerning the European Community. That is why the Parliament of Great Britain that you referred to held referenda with respect to devolution of authority to Scotland and Wales. Australia, I believe, had some provision for --

Mr Bisson: I just want to return you to the point that I am asking. The question of referendum, I think, is one most people are thinking about at all levels of politics and may come into that at the end. I certainly can sit here and agree with you on the fine points of referendum. The point I am making is, by your becoming the elected representatives at the constituent assembly, are you not then that politician nobody will trust?

Dr Schwartz: There would be some differences between constituent assembly and the current political setup, which does not mean that people would not have a justifiable concern about what the constituent assembly does. I think the bottom line even of a constituent assembly is a referendum. One hundred guys get in a room, or 100 men and women get in a room, and do something --

Mr Bisson: I hope there are women involved in that as well.

Dr Schwartz: I said "men and women." Some might not have it right, and it is an untested process. I would not say, "Put these people in a room and let them do what they want and that is the way Canada is going to be." I think a referendum should be the bottom line in any event and I think many of those who have proposed constituent assembly have said as much. Constituent assembly would have the advantage that people would have to campaign on a very specific issue rather than the whole range of issues.

Mr Bisson: What happens once they get there? Are they not the politicians? Do they not have to change their views because of information brought to them by other representatives in the constituent assembly, by lobbying efforts on the part of their constituents within their particular areas in order to change your views to reflect what their constituents are talking about? The point I am trying to make is, the constituent assembly is a little bit what Professor Grey talked about a little while before, a movement like nationalism. It is an idea we can buy into because it is something out there somewhere and it might very well be based on some very good ideas, but the practicality of possibly making it work is something else. Is not the representative of the constituent assembly a politician? Is it so pure a system or is it very much what we have now?

Dr Schwartz: Neither. It is not so pure a system and it is not very much like we have now. It is not so pure that we would want to have a referendum. It is not so pure. Bad things could happen. The possibility is, these people could say one thing and do something else. Is it better in terms of focusing on constitutional issues? I think it might be better because of the focus with which people would have to identify their views before being selected and because people will not be subject to party discipline, which is a very important consideration.

Mr Bisson: But party politics has not come into play when it comes to decisions. We have seen that under Meech.

Dr Schwartz: With all due respect, I think party politics had a great deal to do with the Meech round. After Premier Peterson, I have some problems with the political morality and what happened in June 1990. I do not think it was acceptable to once again go through this closed-door process to subject Premier Wells and Premier Filmon to the enormous psychological coercion they were subjected to. I do not think it was appropriate to make radical decisions about Canadian institutions, like giving away a quarter of Ontario's Senate seats without consultation, so I do not see the sort of constitutional politics practised in the last round as acceptable, nor do I see it as acceptable. What I seem to be seeing is a recurrent and evolving tactic of saying to people who are critical of the system: "You are the problem. You guys are so cynical. You don't trust us. What is the matter with you guys and women?"

The reason we got to be this way might just be because of observed conduct to which we might have justifiable objections. I went to seven hearings. I looked at all these things with a straight face and good faith. I have participated every opportunity I have had. That is not the conduct of a cynical person.

The reason I am critical is because my perception, right or wrong, is that the conduct and the quality of the political morality and the responsiveness to the needs of the Canadian people have not been there, and extrapolating from that, I have every reason to be pessimistic about this next round unless the people get the last word.

The Acting Chair (Mr Drainville): On that very pessimistic note, Professor Schwartz, I thank you for coming before the committee all the way from Winnipeg to present your briefs. You have certainly given us a great deal of information in the briefs you have given to us. I am sure we will have the opportunity to look at that and to weigh it in terms of our final report so, again, thank you for coming before the committee.


The Acting Chair: I would ask the next presenter to come forward, Catherine Frazee, from the Ontario Human Rights Commission. I want to say how happy we are as a committee to have you before us, Ms Frazee. Your work with the human rights commission has been very important for this province and we cannot say thank you enough for taking some time out of your very busy schedule to be here this afternoon. As you know, we have originally allotted you half an hour. If we need to extend that, I believe the committee is in agreement that we would afford you as much opportunity as possible to air your views. If you could possibly leave some time for some questions and answers, that would be much appreciated.


Ms Frazee: Thank you very much for those words of welcome. It is a pleasure and a very good feeling indeed to be able to share with this group discussion about an issue which is perhaps larger and certainly of a different proportion to the subject I most frequently talk about, the human rights commission's case load.

The time lines for this presentation have not allowed me to present to you a formal and official submission from the Ontario Human Rights Commission but I do welcome the opportunity to share with the committee some of my personal observations and reflections which I hope are germane to the issues at hand and which have certainly been informed by my experience with the human rights commission over the past several years.

The order of reference given to your committee is indeed an important one, and we all look forward to reviewing the final outcome of this process and the recommendations of this committee. I followed the work of the committee in the first phase of its proceedings and I wish to congratulate and express my appreciation for the effort and the level of commitment that I know went into making sure all of those who wanted to had a meaningful opportunity to make their positions and their views known in this very important discussion.

The note I received from the clerk of the committee suggested that I address five subjects which are of particular interest to the committee. These are: (1) the possibility of placing a Canada clause in the Constitution, (2) multiculturalism, (3) women, (4) persons with disabilities, and (5) the Charter of Rights, with particular emphasis on social and economic rights.

I am going to attempt to touch upon each of these subjects in the time allotted but the net result, I am afraid, may prove to be somewhat of a whirlwind review. However, I think there are some important points to be highlighted.

First of all, with respect to the Canada clause, the first ministers' conference in June 1990 discussed, as we know, in some detail the formation of the Canada clause which would be placed in the Constitution through the vehicle of a companion accord some time after the successful passage of a Meech Lake accord. It was, we know, a response to those who felt left out or who perceived that their rights were somehow diminished or would be diminished by the "distinct society" clause of the Meech Lake accord.

I think at this point it is important to set out and reaffirm the position of the Ontario Human Rights Commission which was made initially by my predecessor before the select committee on constitutional reform in March 1988, that we fully support the promotion and the enhancement of bilingualism and we are sensitive of the need to accommodate the legitimate concerns of Quebec within our constitutional framework.

The main problem I can see with regard to the insertion of a Canada clause which would describe the fundamental characteristics of Canada is the possibility of leaving something out. A Canada clause placed in the British North America Act in 1867 would look very different from such a clause placed in the Constitution, say, in 1929, before the famous "persons" case was decided. In other words, such a clause would at that time probably not have included women. Certain characteristics are always evolving, or at least our consciousness of these characteristics is ever evolving, and one would not want to arrest this process with, say, a definitive list of groups or a definitive list of the needs or desires of Canadian society in a single constitutional phrase, however complex that phrase might ultimately be.

If the purpose of the Canada clause is to describe the fundamental characteristics of Canada, I think it is important for us to try to isolate elements to which we can in good faith extend a sort of permanent value. Matters such as our fundamental belief in rights and liberties, recognition of the contribution of our first nations peoples, persons of English and French origins and those of multicultural heritage to the development of our country are, I believe, all appropriate. But I do not believe that a Canada clause should contain a shopping list of acquired rights or pretend in any way to be a mini-charter.

As such a clause is fundamental to the Constitution and is to set out the basic nature of our country, I would suggest that such a clause be placed either in the preamble or as the first standard clause in the Constitution. I might add in passing that our experience would suggest that the status of such a clause would not be in any way diminished by its inclusion in something like a preamble. The preamble to the Ontario Human Rights Code, for example, which recognizes the dignity and worth of every person and provides for equal rights and opportunities without discrimination, has certainly been quoted by the courts and referred to strongly when interpreting the substantive sections of our code.

So a simple and uncluttered Canada clause setting out the fundamental nature of our country would certainly be an aid to the people of Canada, to the legislatures and to the courts. It would assist all of us in feeling a part of the basic law and feeling a sense of ownership of that law, and it would certainly assist in the passing of future laws and interpretation of law.

But in the articulation of any such clause, I would like to caution against perpetuation of tolerance as a value appropriate for the 1990s. Surely we have moved beyond a time in our history when differences are merely tolerated. I believe we now are living in an age and in a nation in which plurality is valued, in which special needs are and will be accommodated, in which unique perspectives are respected and honoured and historic patterns of disadvantage will be actively corrected. I think the language of toleration belongs to a different era.

Second, with respect to the issue of multiculturalism, I am very pleased, as I am sure you are, of the number of groups representing the multicultural communities of Ontario which have come forward to give evidence to this committee. We have reached a time in our history when our collective commitment to the principles of multiculturalism are being tested. It is a time when elected leaders must draw upon the vision, I believe, of a whole much greater than the sum of its parts and we must all find the moral courage to affirm strongly that we are simply richer in our diversity and because of our diversity.

As much as I hold to this truth, however, I must echo the point which was made in your phase I report, that our commitments on the policy level must not mask the need, or perhaps more accurately the imperative, of removing barriers to access to full and equal participation in social, political and economic domains, barriers which thwart the progress of those whom our noble words would seem to protect. Let us not forget, as those of us charged with the enforcement of this province's anti-discrimination legislation can never overlook, that the gap between what our various equity statutes aspire to and what our sisters and brothers experience as the reality of life is formidable in width and every other possible dimension.


Of course, it would be desirable to have section 27 of the Charter of Rights and Freedoms amended so that it does become more than an interpretive clause. However, I recognize that substantive protection for the rights of persons of multicultural heritage is actually contained in subsection 15(1) of the charter, which sets out an entitlement to protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour and religion. For this reason, and emphasizing the great weight and the great importance of constitutional amendment, the emphasis of my presentation would rather be to advocate that the "notwithstanding" clause of the charter be subjected to careful scrutiny.

It is my belief, and it is in fact the commission's formal position, that the inclusion of section 33 came about precipitously and without the appropriate opportunity for Canadians to consider the wisdom or the desirability or indeed the full ramifications of a parliamentary override provision. I am aware of the reasons for placing section 33 in the charter. Section 33 was designed in large measure to allow legislators to override court decisions which unduly limited rights set out in the charter. But this has not been our experience with section 33 and I believe it is time for us to perhaps reconsider its place in the charter. Section 33 allows the suspension of rights, and even the threat of suspension diminishes the protections given in the charter.

Next, and briefly with respect to persons with disabilities: Persons with disabilities are of course also protected by section 15 of the charter, but as this committee has heard, I am sure, clearly, such constitutional protections have had relatively little impact on the living situations and circumstances of Ontarians with disabilities.

As just one of countless possible examples I would like to cite from the commission's recent brief to the Royal Commission on National Passenger Transportation. One of the impediments to the development of a transportation system that would be accessible to persons with disabilities is the federal structure of our Canadian government and the resultant division of powers. The federal jurisdiction covers interprovincial, national and international travel, as you know, while the provinces are responsible for providing or regulating local and regional transportation. This division of jurisdiction does make it difficult to achieve universal access for persons with disabilities through the adoption of national standards. We would appreciate your committee addressing such complex jurisdictional problems as this.

The provision of services for persons with disabilities is primarily within the jurisdiction of the province, we know, and the decision as to whether or not to provide services is primarily, of course, a question of finances. It is with this in mind that in the concluding part of my presentation I will be recommending to your committee that you study a proposal to amend the Charter of Rights to include social and economic rights. This would give to those who are disadvantaged the opportunity to question the allocation of resources within our legislative scheme.

Next, with respect to women: Briefly, the protection and enhancement of the rights of women must be addressed on many levels. Women should have the right to be safe at home, to be safe at work and to be safe outside their homes and their workplaces. Basic needs such as security and safety, food, shelter, employment and access to services such as health care are major issues for women in Canada and especially important issues for single mothers. A study entitled Women and Labour Market Poverty, with which you may be familiar, completed for the Canadian Advisory Council on the Status of Women in June 1990, indicates that the poverty rate for female heads of single-parent families was 44.1%, and poverty among single parents is the major factor underlying the high level of child poverty in Canada, a level which can only be described as unconscionable by any standard.

Women and others are concerned, of course, that the present constitutional struggle threatens the existence of national standards and national programs. It is also a concern that if provinces pursue the right to opt out of national programs no new national social programs will be created. This is especially important for single mothers and for other women working outside the home who desperately need an affordable day care system funded jointly by the federal and provincial governments and regulated by standards that are applied nationally. Again, in this context I would encourage the committee to consider the impact of positive rights in social and economic spheres upon pressures and concerns of this nature.

Although I was not explicitly asked to, I would like to take a moment, if I may, to address issues pertaining to the aboriginal peoples of Canada, and in particular to the aboriginal people of Ontario.

I deplored their exclusion from the process of constitutional reform in 1987 and again when attempts were made to fashion a companion accord in June 1990. I am hopeful that they will be included as equal partners by the federal government in the current round of constitutional negotiations. There is little about the future of this country that can properly be discussed without our first nations people figuring prominently in that discussion.

I urge both the federal government and the government of Ontario to pursue the entrenchment of self-government for aboriginal peoples in the Constitution. I believe this must be done as a necessary first step. The intricacies of the level and the nature of self-government can and will surely have to be worked out among aboriginal peoples, the provinces and the federal government, but this must happen once the fundamental recognition has taken place.

I applaud the recent efforts of the government of Ontario in arriving at a statement of political relationship, recognizing the inherent right of first nations to self-government and formally breaking with the paternalism that has unfortunately and somewhat disgracefully characterized relations between governments and aboriginal peoples for generations. However, as the statement itself declares, the province is limited in what it can do by the Constitution Act of 1987, under which "Indians, and lands reserved for Indians" are a federal responsibility. It is therefore of vital importance that we continue to urge the federal government to constitutionalize the concept of self-government and to recognize the aboriginal peoples as founding nations of this country.

Mr Chairman, during the first phase of this committee's work you heard a great number of witnesses speak about the social benefits enjoyed by them as Canadians. These benefits relate to health care, education, welfare assistance programs, etc. There was a general concern, I think, raised that through the cap placed by the federal government on payments to provinces under the Canada assistance plan and the freezing of payments under the Canada Health Act and established programs financing, critical programs may be cut back or changed.

Through these statutes and programs the federal government of course has traditionally demonstrated its commitment to lessen the effects of regional disparities on the lives of Canadians. Failure of these funding programs to keep pace with the inflation rate or the needs of the provinces in these social areas seriously threatens the fabric and standard of life of this country. This and other factors lead me to encourage your consideration, and your positive consideration, of a statement of economic and social justice, or perhaps the introduction of a new section to the Charter of Rights and Freedoms dealing with social and economic rights, including the right to shelter, health care, education, minimum annual income, employment and an adequate standard of living.

As a party to the international covenant on economic, social and cultural rights Canada does provide a detailed submission periodically to a special committee of the economic and social council of the United Nations outlining the status of our compliance. However, there is no individual legal remedy for abridgement in Canada of the economic rights in the covenant. If the Charter were to be amended to include economic and social rights, these rights would be subject to the enforcement section of the Charter and the courts would have wide powers to award whatever remedy they consider appropriate and just in the circumstances.

In our research for this presentation we came across the fact that India includes as part of its Constitution a section entitled Directive Principles of State Policy. These principles set out that the state shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political rights shall transcend all the institutions of national life. The state is to direct its policies towards securing for its citizens the right to an adequate means of livelihood, to distribute material resources equally and, within the limits of its economic capacity and development, to make effective provisions for the right to work, to education and to public assistance.


While these principles are not enforceable by a court in India, they are laid down and are nevertheless fundamental in the governance of the country and it is the duty of the state to apply these principles in making laws.

I believe it is important at this time in our history that your committee give serious consideration to the inclusion of positive economic and social rights in the Charter of Rights and Freedoms. Only from the successful enforcement of these rights will flow true equity for all disadvantaged groups in our society.

Perhaps it is best to conclude by stating in terms similar to those used by the Centre for Equality Rights in Accommodation when it addressed your committee earlier: It has to be recognized that claimable social and economic rights will not lead to instant housing or prosperity for everyone in Canada or everyone in the province, nor will it result in instantaneous bankruptcy of the province or the federal government. I personally share the perspective that recognizing and entrenching claimable social and economic rights will gradually transform our society to one which assumes the standard of equity which must feature prominently in our vision of renewal for this country.

That concludes my formal remarks and I will be pleased at this time to enter into discussion or to respond to questions to the extent I am able.

Mr Malkowski: Catherine Frazee, that was a wonderful presentation. It was simple and clear to us and I was very impressed. It helps me to clarify in my own mind the positions of the charter and how they reflect the needs and the aspirations of all of us in Canada, and that we need to keep the language simple so that it emphasizes the values we want to see.

You have mentioned section 33, the "notwithstanding" clause. Do you not feel comfortable with that? What suggestion would you have, then, if that were to be deleted? How could we then increase the strengths or the rights of, let's say, a minority group, or in terms of the social and economic charter? Would that be included there or would that not be appropriate? I would just like you to comment on that, if you could talk a little bit more about how that section would really impact and what recommendations you would have to this committee.

Ms Frazee: I think we must remember that section 1 of the Charter of Rights and Freedoms sets out a fairly strict test for ensuring that the rights and freedoms set out in the charter are subject only to such reasonable limits as prescribed by law -- and I am quoting again from section 1 -- "as can be demonstrably justified in a free and democratic society." The courts have devised fairly strict tests for the use of this section. I think that those who are concerned about the doctrine of parliamentary supremacy and the possible subversion of parliamentary supremacy by the removal of section 33 should be satisfied that parliamentary supremacy is relatively well protected already through section 1.

One of the problems of section 33 is that it really does seem to be based upon what people have referred to as a hierarchy of rights. Certain rights are subject to the "notwithstanding" clause and other rights are not, and I find that quite unacceptable. Rights, as the word suggests, are fundamental in nature, and equity rights in particular, at our current state of consciousness as human beings, are fundamental and they must be fully entrenched in the constitutional law of this land.

Mrs Marland: I wanted to ask you two fairly straightforward questions. I am a substitute member on this committee. I say that because I have not heard all of the presentations. We had a group last week who said it was not necessary to have enshrined in the Constitution special status for any groups if we really believe -- I think, in fairness to them, they were saying if we really believe -- in equality for everybody. I have a concern because of the groups that are excluded and that you address very well, the aboriginal people and women, and I was wondering if you could elaborate a little bit more on why you think it is necessary to have the status identified.

Ms Frazee: Let me try from a philosophical perspective. If I do not address your question, perhaps you would come back to me with it again to make sure that I do.

I think a lot of the debate on that particular question centres upon our notions about what is equality. We have moved from what is called a formal notion of equality, which is that of treating everyone the same, and we have moved beyond that in the last couple of decades to a notion which is much more substantive: that equality does not mean treating everyone the same; equality means recognizing the differences and accommodating the differences where they ought to be accommodated, introducing special measures or perhaps special status where the differences have been reinforced by history, by generations of treatment which was unequal. So our notions today of equality are broad enough and, in fact, compel us to treat and to recognize certain groups as having special status.

I suppose the very best example that we all understand is the example of our aboriginal people, for whom simple equal treatment is not enough because of all that has come before and because of all the injustice and all the disrespect and the disfranchisement and the marginalization that is part of the legacy of our aboriginal peoples, and of course our responsibility actively to correct.

That is, as I say, a fairly philosophical response to your question, and if I have not come to the real heart of it --

Mrs Marland: No, you have exactly, because what you just said obviously applies to women.

Ms Frazee: Precisely.

Mrs Marland: The second question is, where you are advocating that the courts be the enforcement agency, if we were to enshrine social and economic rights, how do you support that, again philosophically, when you are saying to the courts, "Here, you determine social and economic rights for the people of this nation"?

Ms Frazee: Yes, it is a tough question, because on either side of the debate I know there are very strong and compelling arguments. Let me put it this way. I think courts have had a great deal of experience in the interpretation of rights. I think our courts have the adaptability that is required to the task which would be given to them by the inclusion of social and economic rights in the charter. The courts admittedly are always somewhat behind the grass-roots social movements which ultimately shape the laws which the courts must interpret, but I feel that there really is no alternative, that we want to entrench these rights. We want them to stand above and firmly entrenched and not to be subject to the vicissitudes, I suppose, of political change or popular opinion, which often run quite counter to the notions that we are trying to protect and to preserve in this great debate. While I recognize that there are limitations and some very serious concerns about placing this responsibility with the courts, I come down on the side that says that is the safest and the surest way to establish and entrench the rights.

Mrs Marland: Only because you feel it is the only alternative, is what I hear you saying.

Ms Frazee: Yes.

Mr Curling: I think that the presentation was excellent and right on target. I also share the feelings that you have about the limited time we are given. There are so many things that you could have commented on that would help this committee immensely. We have had people here who would spend an hour and we had hoped that those could be reversed, not in any way putting them down in their presentations, but there are so many areas on which you could comment. I regard you, Catherine, as one of the persons involved most closely with people who have been deprived of their rights. You have seen it daily, you wrestle with it sometimes with finance and sometimes with resources, and with criticism, of course, even coming from me at times.

But when you spoke about the disabled person -- I am using that example, it was quite focused -- about section 15 that makes accommodation for that, it has not yet fully been given to them. Presentations were made here previously in that regard from those individuals, saying that we should have it in the Constitution.

But we also heard about entrenchment, and as my colleague Mrs Marland mentioned, some people talk about putting everything in the Constitution. There is one balance to it, though, that there is a cost factor and there is an expectation factor. If we entrench it in the Constitution, the expectation for us is that other groups feel that if they are left out, the Constitution is not fully written, and I am sure that after it is all over we may not have everyone entrenched in that Constitution. But even when we do put those in, there is the next question of the cost factor. Do you feel that afterwards, whatever would have gotten into that Constitution, there would be adequate money available because of the high expectation to recognize and to fulfil those people who have been deprived of their rights, that government would put forward money so their rights could be asserted?

Ms Frazee: This does not speak to your question, but it came to mind as I was listening to your comments: I think it is important to reinforce that what we put into a charter ought to be an articulation of values with which we have some sense of permanency. The listing of specific groups or naming of specific entitlements I think is shortsighted, because I think that invariably, as I said in my presentation, we will leave someone out. We will leave someone out by reason of the fact that our own social consciousness has not yet evolved to include that group or that particular interest or that particular need. So I think what we articulate in the charter, in the Constitution of this country, is the value that we place upon diversity, upon respecting the contributions that people bring from various perspectives and that people have made historically to the growth and development of this country, and the place that people have within the country and the entitlement to such very basic and important values as dignity and equal opportunity.

Having said that, now we turn to the issue of costs. I think one has to always be very careful in discussing rights from the perspective of what the enforcement of these rights will cost. I say that because if we are prepared to stand behind a principle that says that the rights and entitlement of all persons equally is a priority in our society, then yes, certain costs will flow from that. But once we establish our priorities, we begin to arrange matters in such a way that the costs can and will be absorbed. It does not happen all at once, and I think that is a large part of the point that Bruce Porter from the Centre for Equality Rights in Accommodation was making in his presentation. It is not immediate and automatic and therefore overwhelming. But yes, there are costs associated; yes, we have to make a collective commitment that we will sustain those costs, and we will do so, because the very matter of rights is of such utmost priority for all of us.

Mr Curling: So you are saying that we should not pay much attention to the numbers of entrenchment, but pay attention to the rights that should be protected, and later on the priorities of our financing will then fall in place as it comes along. But again, we must also expect a bit of frustration of those who are waiting in line to be dealt with.

Ms Frazee: Yes. There is no question that as we delay, and as you are well aware in the arguments for employment equity, every day that we delay, people are being excluded. There is no excuse and no satisfaction other than to make the change.

Mr White: I was very interested in your presentation. The issue I would like to speak about, as have many others, is the issue of rights. You clearly establish in your presentation that for women and for the disabled there be a charter of rights which includes social and economic rights, and that is essential. How that is administered, how that is worked out, seems to be problematical. The experience that people have had with courts to this point has been that it is not the disadvantaged who have the most easy access to the court system.

You mention in your brief India's Constitution, which enshrines certain economic and social rights as a value, as a principle, such as we should have here in Canada. We have also heard that in the European Community, because of the culmination of the 1992 effort where their economies will be merged much as ours was with the United States, there is a charter of rights for the entire European Community, and that is done through a process of directives from the ministers of those various countries.

I am wondering if you could comment upon the alternatives to a court system in terms of economic or social rights, such as you have mentioned in India, or any knowledge you might have of the European system, and why you speak favourably about a court system of enforcing those rights.

Ms Frazee: I am not going to be able to give you as comprehensive an answer as I would like to because I am not as familiar with the situation in the European Community as I would like to be in order to pursue the discussion. But let me say, because I think it certainly touches upon the same theme here, that it is essential, and I think we are only just now beginning to learn how very important it is, for the voice of the people who are directly affected or going to be affected, to be heard, and if I may say, in the first person. So I would emphasize that if we do entrench social and economic rights into the charter, and if we thereby find ourselves with an enforcement mechanism which is dependent upon a process of court action, it will be very important for Canadian society to provide support for the people who have a story to tell, for the people who have a claim to make, to have access to that court which is direct and personal.


That, I realize, is a challenge which has costs associated with it, as Mr Curling was saying, and has associated with it problems of access and of the very intimidating nature of the court process. But I think that with the right amount of sensitivity and commitment and support, there is great dignity to be achieved in the process of individuals and collectives of individuals having the opportunity themselves. I think the courts have the flexibility to be able to embrace and properly serve that kind of process.

Mr White: With regard to the issue of the social and economic rights being enshrined, that of course sets them out. They are enshrined, they are there for everyone to see. The issue of access, though, that kind of assistance so that there is a voice, is more difficult to enshrine.

Ms Frazee: Yes, it is. I think that really is a matter of our social programming, a matter of the priorities with which we govern ourselves. I quite agree with you that this is perhaps not something we can enshrine, but if we fail to provide that support, then our behaviour or our positions or our priorities in our manner of governing are in themselves challengeable because they deny access.

Mrs Y. O'Neill: Thank you, Ms Frazee, for bringing your experience, your wisdom and your sensitivity. I really appreciate it. You have really struggled this afternoon to get us to appreciate what you are trying to say about the challenge of the claimability of rights. We are going to have to struggle with that in this committee. We have had quite a few presentations on this particular subject and it does not get any easier. The more we talk about it and the more perspectives we have on it, the greater the challenge seems to be. I hope we will make the right recommendation in this area, because it is one we have taken very seriously since day one on this committee. I would have asked you more about that, but I think you have pretty well exhausted your thoughts -- you have said so -- and we will reread them.

You have mentioned something about transportation for the disabled. As well as being pragmatic in these discussions, I think we have to be practical. I do not think it is something we touched on very strongly in our first interim report, so I am wondering if you would say something to help us be practical about that particular right -- I would consider it a right -- the right to transportation for the disabled. Would you say a little bit to us about the complexities of that? You have touched on the interrelationships of the three levels of government and I would like to know how we could be helpful in putting something into our report that would be meaningful, and perhaps imperative, in policymaking to the provincial government and hence to the federal.

Ms Frazee: The first response that comes to mind is a very simple suggestion, I hope not inappropriately so. As we spoke and considered the possibilities of a Canada clause, I referred to and encouraged consideration of the articulation of broad principles. I think one of those principles has to be a commitment to accommodate the special needs arising from people's membership in certain social groups. That includes membership in the community of people with disabilities. I think that if there is an affirmation in either a preamble or a strongly positioned clause in the Constitution, if there is a commitment to accommodation, then that sends a very important message, a message which hopefully transcends some of the very difficult technical problems caused by an issue which extends across the various jurisdictions like transportation. Transportation is of course only one example.

It does become, as I said in my presentation, very difficult to enforce or regulate a national standard that has any meaningful effect upon the daily lives of the individuals who seek to benefit from that national standard when the standard is affected by the interpretation or the jurisdiction of provinces vis-à-vis the federal authority. So I think the fundamental principle is to articulate and to commit to a principle of accommodation, full accommodation to enable full participation, not as an act of generosity but as the fulfilment of a right for persons with disabilities as well as others who require accommodation.

The Acting Chair: I would like to thank you very much for coming here today and presenting your brief and also for being willing to answer so many questions. If you have any other comments at any point, or if you have any other documentation you think we should look at, please send that along to us. We would be glad to look at it.

Ms Frazee: I would appreciate that, because I think many of the questions in and of themselves were subjects for much longer conversation. I welcome the provocative ideas and the opportunity to have at least a preliminary sharing of those ideas with this group.

The Acting Chair: We are going to have a subcommittee meeting, so I would ask the subcommittee members to stay behind for that. Otherwise, we are going to be adjourned until 10 o'clock tomorrow morning.

The committee adjourned at 1657.