The Liberal members of the Special Joint Committee on the 1987 Constitutional Accord, on behalf of the Opposition, once again confirm their support for the Langevin Accord as a positive step forward in Canada's constitutional evolution. At the same time, we believe that the Accord can and should be improved now by the inclusion of some amendments, which are set out below. These amendments are fully consistent with: (1) the Liberal Party policy resolution of November 1986; (2) the Quebec Government's constitutional agenda; and (3) the testimony of many expert witnesses at the hearings of the Special Joint Committee. We also believe that these amendments should be acceptable to the First Ministers. They take nothing away from the achievement of the Accord, rather they clarify its meaning and recognize other legitimate claims which are totally compatible with the Accord.
However, we wish to reiterate our regret, registered in both Houses of Parliament and in Joint Committee hearings, that this crucial exercise has been intentionally engineered by the Government to limit public scrutiny and serious debate. The Liberal Opposition urged that witnesses be given more time to prepare their briefs. We also expressed the view that travel by the Special Joint Committee should have been permitted, especially to those jurisdictions where no hearings are being convened by the provincial or territorial government. Many witnesses who came before the Committee stated that the severe time limits, imposed by the government, reduced their ability to prepare comprehensive submissions.
We reject the government's contention that the Accord is a "seamless web" which will unravel if improvement is attempted now. The experience of 198182 demonstrates that constructive change is possible, even at the 11th hour. At the same time, it would be unfair to fault the Accord for failing to resolve all of the unfinished business of Confederation. The amendments we propose complement the Accord. They clarify it and bring to it additional legitimacy by recognizing the important concerns of large numbers of Canadians who are currently dissatisfied. Our amendments do not undermine Quebec's conditions for returning to the Constitutional fold as a full partner.
We wish to draw attention again to the resolution passed last November at the National Convention of our Party on the subject of constitutional reform. A Liberal government would have used this resolution as a starting point for negotiations in what has been referred to as the "Quebec Round", to bring about Quebec's adherence to the Constitution. Indeed, the Liberal resolution demonstrates that the issue was given high priority by our Party long before the Mulroney government acted.
The Liberal Opposition, therefore, supports the Langevin Accord because we feel that the recognition of Quebec's distinctiveness is desirable, appropriate and sociologically accurate.
But, while we agree that a successful Quebec Round is essential, there is no reason why its achievement needs to be as limited as the government insists, or why it must result in other Canadians now feeling isolated, such as women, northern Canadians, native peoples, or western Canadians on the subject of Senate reform. We regret that the Prime Minister did not utilize this window of opportunity to complete more of the national constitutional agenda. We are convinced that this was, and still is, possible.
The Liberal Party has always believed in the concept of official bilingualism for Canada, which was advanced in the Official Languages Act first proclaimed by the Trudeau Government in 1969, and subsequently reinforced by the Constitution Act 1982. We do not feel that the Langevin Accord undermines bilingualism in any way. On the contrary, the Official Languages Act is still the law of the land; constitutional protection for official language minorities across the country is not diminished; the option of becoming officially bilingual remains for each province. In fact, the Langevin Accord obliges governments to "preserve" the linguistic duality of Canada. This is a step in the right direction, but in order to strengthen it, our amendment proposes that provinces adopt a more positive attitude toward this fundamental characteristic of Canada.
In addition to our amendments, there are two other important issues which we consider essential for the next round of Constitutional negotiations. First, we believe that section 33 of the Constitution Act, 1982 should be repealed. We consider the paramountcy of the Charter essential, and do not feel that this power of derogation can any longer be justified.
As a second matter for the next constitutional round, we will propose the removal of the "where numbers warrant" clause for minority language instruction, contained in section 23 of the Constitution Act, 1982. We feel that this provision is inhibiting and, to the extent that a safeguard is needed, one is already contained in section 1 of the Act, which provides for such limitations as are demonstrably justifiable in a free and democratic society.
In conclusion, we sincerely regret not being able to support the majority report of the Special Joint Committee, which accuses those who now propose amendments of inviting a "risk to the wellbeing of this country" and the previous government of having operated only by means of "conflict and confrontation". We profoundly disagree. Amendments are desirable and should be possible. The previous Government's achievement of patriation and the entrenchment of a Charter of Rights was historic and should not be diminished.
The Conservative majority refused to include our views, which were also expressed time after time by independent witnesses, in the body of the report; we therefore abstain.
-- That section 1 of the Constitution Amendment, 1987 be amended by striking out subsection 2.(1) of the Constitution Act, 1867, and substituting the following therefor:
"2.(1) The Constitution of Canada shall be interpreted in a manner consistent with
(a) the recognition that the existence of Frenchspeaking Canadians, centred in Quebec but also present elsewhere in Canada, and Englishspeaking Canadians, concentrated outside Quebec but also present in Quebec, constitutes a fundamental characteristic of Canada;
(b) the recognition that Quebec constitutes within Canada a distinct society;
(c) the recognition that aboriginal peoples constitute a distinctive and fundamental characteristic of Canada;
(d) the recognition of the multicultural nature of Canadian society, and in particular respect for the many origins, creeds and cultures as well as the differing regional identities that helped shape Canadian society; and
(e) the recognition of the advantages of developing the Canadian economic union."
The purpose of this amendment is to include as fundamental characteristics of Canada the recognition of aboriginal peoples, multicultural and regional identities and the advantages of developing the Canadian economic union.
--That section 1 of the Constitution Amendment, 1987 be amended in subsection 2(2) of the Constitution Act, 1867 by striking out section 2(2) and substituting the following therefor:
"2 (a) The role of the Parliament of Canada to preserve and promote, and the role of the provincial legislatures to preserve and, subject to subparagraph (2)(b) to promote, the fundamental characteristic of Canada referred to in paragraph 1(a) is affirmed.
(b) The role of a province in relation to promotion applies from the time it is adopted by a resolution of the legislative assembly of that province."
The purpose of this amendment is to offer more protection to official language minorities throughout Canada.
--That section 16 of the Constitution Amendment, 1987, be amended as follows:
"16. Nothing in the Constitution Amendment, 1987 derogates from any of the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms or affects Part II of the Constitution Act, 1982."
The purpose of this amendment is to ensure that all provisions of the Charter, not just sections 25 and 27, have been included in this clause.
--That section 2 of the Constitution Amendment, 1987 be amended in subsection 25.(1) and 25.(2) of the Constitution Act, 1867, by striking out subsection 25.(1) and 25.(2) and substituting the following therefor:
"25.(1) Where a vacancy occurs in the Senate, and until an amendment to the Constitution of Canada is made in relation to the Senate pursuant to section 42 of the Constitution Act, 1982, the government of Canada shall, within six months after the vacancy occurs, call an election in the province or territory to which the vacancy relates for the purpose of filling that vacancy, and, notwithstanding the provision of section 29 of the Constitution Act,1867, for a term of nine years."
The purpose of this amendment is to assure Senate reform.
--That section 6 of the Constitution Amendment, 1987 be amended in subsection 101C.(1) of the Constitution Act, 1867, by striking out subsection 101C.(1) a substituting the following therefor:
"101C.(1) Where a vacancy occurs in the Supreme Court of Canada, the government of each province and the elected government of each territory may, in relation to that vacancy, submit to the Minister of Justice of Canada the names of any of the persons who have been admitted to the bar of that province or territory and are qualified under section 101 B. for appointment to that court."
The purpose of this amendment is to allow appointments from the territories.
--That section 6 of the Constitution Amendment, 1987 be amended in subsection 101C.(2) of the Constitution Act, 1867, by striking out subsection 101C.(2) and substituting the following therefor:
"(2) Subject to subsection (5), where an appointment is made to the Supreme Court of Canada, the Governor General in Council shall, except where the Chief Justice is appointed from among members of the Court, appoint a person whose name has been submitted under subsection (1) and who is acceptable to the Queen's Privy Council for Canada."
This is a consequential amendment.
--That section 6 of the Constitution Amendment, 1987 be further amended by adding immediately after subsection 101C.(4) of the Constitution Act, 1867, the following new subsection:
"101C.(5) Where an appointment is made in accordance with subsection (2) and, if within a period of three months, no name which has been submitted under subsection (1) is acceptable to the Queen's Privy Council for Canada, the Chief Justice may make an interim oneyear appointment from among justices of the Federal Court of Canada or provincial Superior Courts."
The purpose of this amendment is to provide for a deadlock resolution mechanism.
--That section 7 of the Constitution Amendment, 1987 be amended in subsection 106A.(1) of the Constitution Act, 1867, by striking out subsection 106A.(1) a substituting the following therefor:
"106A.(1) The Government of Canada shall provide reasonable compensation to the government of a province that chooses not to participate in a national sharedcost program that is established by the Parliament of Canada after the coming into force of this section, in an area of exclusive provincial jurisdiction, if the province carries on a compatible program which meets minimum national standards."
The purpose of this amendment is to ensure greater national consistency in programs available to all Canadians and to ensure that minimum standards are met by provinces in order to claim compensation for opting out of such programs.
--That section 9 of the Constitution Amendment, 1987 be amended by striking out section 9 and substituting the following therefor:
"9. Sections 40 to 42 of the Constitution Act, 1982 are repealed and the following substituted therefor:
40. Where an amendment is made under subsection 38(1) that transfers legislative powers from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does not apply.
41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;
(b) the right of a province of a number of members in the House of Commons not less than the number of Senators by which the province was entitled to be represented on April 17, 1982;
(c) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;
(d) subject to section 43, the use of the English or the French language;
(e) the Supreme Court of Canada; and
(f) an amendment to this Part.
42.(1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):
(a) the powers of the Senate and the method of selecting Senators;
(b) the extention of existing provinces into territories; and
(c) the number of members by which a province or territory is entitled to be represented in the Senate and the residence qualifications of Senators.
(2) Subsections 38(2) to (4) do not apply in respect of amendments in relation to matters referred to in subsection (1)."
"42A. Notwithstanding subsection 42(1)(f) of the Constitution Act, 1982, the establishment of new provinces shall be a matter exclusively for the Governor General in Council and the elected government of the territory affected."
The purpose of this amendment is to remove amendments concerning the Senate from the unanimity rule and return them to the status quo of 7 and 50%. Also for the extension of existing provinces into the territories and the establishment of new provinces, we have deleted these entirely, returning us to the Constitution Act, 1871 which allows for bilateral agreements between the Government and a new province.
--That sections 10 to 12 of the Constitution Amendment 1987 be deleted.
This is a consequential amendment.
--That section 13 of the Constitution Amendment, 1987 be amended in subsection 50(2) of the Constitution Act, 1982, by striking out subsection 50(2) and substituting the following therefor:
"(2) The conferences convened under subsection (1) shall have included on their agenda the following matters:
(a) the aboriginal and treaty rights of the aboriginal peoples of Canada, including selfgovernment;
(b) Senate reform, including the role and functions of the Senate, its powers, the method of selecting Senators, representation in the Senate.
(c) roles and responsibilities in relation to fisheries at the first meeting only;
(d) such other matters as are agreed upon."
The purpose of this amendment is to restore aboriginal rights to the constitutional agenda and to put fisheries on the agenda for the first meeting only.
William F. Maton