Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 10 (21 November 1980)
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 10 (21 November 1980).
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HOUSE OF COMMONS
Issue No. 10
Wednesday, November 26, 1980
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the
Constitution of Canada
The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980
(See back cover)
First Session of the
Thirty-second Parliament, 1980
SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Campbell (Miss) (South West Nova)
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons:
On Friday, November 21, 1980:
Mr. Young replaced Miss Jewett;
Mr. Irwin replaced Mr. Gimaiel;
Mr. Dinsdale replaced Miss MacDonald;
Mr. Gingras replaced Mr. Lapierre.
Pursuant to an Order of the Senate adopted November 5, 1980:
Senator Cottreau replaced Senator Bird;
Senator Connolly replaced Senator Rousseau;
Senator Bélisle replaced Senator Muir;
Senator Bird replaced Senator Austin;
Senator Goldenberg replaced Senator Haidasz;
Senator Bielish replaced Senator Roblin.
MINUTES OF PROCEEDINGS
FRIDAY. NOVEMBER 21,1980
The Special Joint Committee on the Constitution of Canada met this day at 9:37 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Bélisle, Bielish, Bird, Connolly, Cottreau, Goldenberg, Hays. Lapointe, Neiman and Tremblay.
Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Dinsdale, Epp, Gingras, Hawkes, Henderson, Irwin, Joyal, Mackasey, McGrath, Nystrom and Young.
Other Member Present: Mr. Beatty.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.
Witnesses: From the Canadian Association for the Mentally Retarded: Mr. Paul Mercure, President; Mr. David Vickers, Vice-President; and Mr. David Lincoln, President (People First-Ontario). From Société franco-manitobaine: Gilberte Protreau, President; Lucille Roch, Director General; and Mr. Joseph Elliott-Magnet, Counsel.
The Chairman presented the Fifth Report of the Sub-Committee on Agenda and Procedure, which is as follows:
1. That one hour be allowed per group of witnesses except in the case of “national” groups, as defined, after consultation among the three parties, in which case the time could be increased.
2. That, for each witness, the time allocation for the opening round be reduced from 15 minutes to 10 minutes.
3. That the question of time allocation for the second round be left in abeyance.
The Fifth Report of the Sub-Committee on Agenda and Procedure was concurred in.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980. Issue No. 1).
Senator Hays assumed the Chair.
Messrs. Mercure, Vickers and Lincoln made statements and answered questions.
Mr. Joyal assumed the Chair.
Mrs. Proteau, Mrs. Roch and Mr. Magnet made statements and answered questions.
At 12:02 o’clock a.m. the Committee adjourned to the call of the Chair.
Joints Clerks of the Committee
(Recorded by Electronic Apparatus)
Friday, November 2l, 1980
The Joint Chairman (Mr. Joyal): I would ask the honourable members of the committee to please take their seats at the table, as we have to adjourn at 11.00 a.m. and have agreed to hear two groups of witnesses.
We should thus begin immediately, so as to make the best possible use of our time.
Before introducing today’s witnesses, I would like to report on the meeting of the subcommittee that was held yesterday evening after adjournment.
We agreed to give each group of witnesses a minimum of one hour, except for national groups, which may be given more time if representatives of the three parties agree.
We also agreed that the first round of questioning will be shorten from 15 minutes to 10 minutes, so that as many members of the committee as possible will be able to ask questions.
For the second round, we will follow current practice and limit interventions to 10 minutes.
I take it there is no objection to the new procedure. We know from experience that it will be more productive than allowing 15 minutes for the first round.
If there are no comments or questions, I will assume that . . .
Yes, Mr. Nystrom?
Mr. Nystrom: Just for confirmation, my understanding is that we are really only making one change. The opening round will be ten minutes instead of 15; follow-up questions will be five minutes instead of ten and we will follow the same procedure starting with the Conservative Party, ourselves and then the government party.
The Joint Chairman (Mr. Joyal): I understand that is another aspect from what we have discussed last night, and I will receive your proposal and defer it to the steering committee, for the second tour, and report later on; if members agree to that.
Mr. Epp: Thank you, Mr. Chairman. The steering committee of this Committee is almost becoming a tour de force by now. but I just want to go through the elements which I thought we had agreed to about midnight last night.
One was that we would have not less than one hour for any witness and the Committee would be flexible for national
groups to increase that hour, the exception being this morning, to accommodate travel arrangements.
Secondly, we are reducing that first round to ten minutes.
Thirdly, the matter of time for additional rounds was left open. Mr. Nystrom asked to discuss that with colleagues. I made the same request and I think that we have agreement up to the last point at the moment.
The Joint Chairman (Mr. Joyal): That is what I understood from our meeting last night, and that is essentially what I have just reported to the honourable members of this Committee.
The suggestion that you are putting forward, I interpreted it as a suggestion presently put forward by Mr. Nystrom, I think that according to our rules we should defer it to the steering committee and the agenda and report after a later meeting if you agree. Mr. Nystrom.
It is my pleasure this morning to introduce [Translation] Mr. Paul Mercure, President of the Canadian Association for the Mentally Retarded, and Mr. David Vickers, Vice-President.
I understand that the Association has submitted a brief to the clerk of the committee and that it has been distributed, I also understand that you have a short presentation to make before answering the members’ questions.
I see that you have another colleague with you at the table and I would ask the President, Mr. Mercure, to introduce him.
Mr. Paul Mercure (President of the Canadian Association for the Mentally Retarded): I would first like to thank the members of the joint committee for having given the representatives of the Canadian Association for the Mentally Retarded a few minutes of their precious time, despite the deadlines they are facing.
Our delegation includes, on my left, Mr. Dave Vickers, Vice-President of our association and a former deputy minister of Justice in British Columbia, whose young daughter is mentally retarded, and, on my right, Mr. David Lincoln, President of the People First group, which is based in Fort Erie, Ontario. This is a group of mentally retarded adults who are trying to get along on their own. Mr. Harvey Endicott, Co-ordinator of the Association’s legal services and resources, is also with us.
The purpose of the Canadian Association for the Mentally Retarded is to defend the rights and promote the interests of some 500,000 mentally handicapped Canadians.
It is a voluntary movement that includes provincial associations and some 40,000 members belonging to almost 400 local associations. Our brief should thus be corrected. We have 40,000 members throughout Canada.
The Association’s main goal is to ensure that the rights of physically and mentally handicapped persons are respected and we have joined forces with other groups representing the handicapped.
Our Association is deeply convinced that all mentally handicapped people should live in society. outside of institutions which tend to alienate them. The integration process has begin throughout Canada and should be pursued on a long-term basis, Because more and more handicapped people are living in society, their rights must be protected.
Thanks to the efforts of our movement, a number of provincial and federal laws have addressed these questions. Our remarks this morning are bassed on decisions made at our general meeting, held in Toronto last June, and on previous general meetings which took a stand on the rights of the handicapped. At the June meeting, the Association was asked to promote the enshrinement of these rights in the new Canadian constitution.
This resulted in a special brief being presented to the special committee of the House of Commons on the handicapped and the disabled.
I would like to take this opportunity to say that I am happy with what we were able to accomplish with respect to that committee. Most of what we want to say this morning is contained in the preamble to a document published in October by the Special Committee on the Handicapped and the Disabled.
I would like to quote the third paragraph of the preamble, which reads as follows:
If Parliament decides to enshrine human rights in the patriated constitution. the committee feels that complete and equal protection should be extended to persons suffering from physical and mental handicaps.
We are asking that the rights of handicapped persons be protected in the new constitution.
The Association has not taken up position on how to patriate the constitution. We, of course, have our personal opinions, but we would rather the matter be dealt with by persons more qualified than us.
We want the patriated constitution to deal with the rights of all Canadians and give added protection to handicapped persons. who need it to be able to exercise their rights.
We are not asking for special rights, any more than we are in favour of special or segregated services, which we would like to see replaced. throughout Canada. by integrated services.
What we are asking for is a place in society and the legal protection that handicapped people need to be able to exercise the same rights as other Canadians.
Before asking Mr. Vickers to give a more detailed account of our demands, I would like Mr. David Lincoln, who, as I said, is President of a group of mentally retarded people based in Fort Erie, to provide specific examples of situations that the group members have to deal with every day.
The Joint Chairman (Mr. Joyal): Mr. Lincoln.
Mr. David Lincoln (President, People First): First of all. I would like to say that People. First is a self-advocacy group of mentally retarded persons helping each other.
l have a few examples here, like needing more funding for shelter workshops, more staff and better pay for handicapped people.
One incident that comes to mind is from Carleton Place where clients were getting 2 cents an hour for the work they were doing. We feel that we are accomplishing a lot by working and human rights should cover minimum wage for all handicapped, or humans, supposedly.
Another one is there should be more low-rental accommodation for handicapped persons and if they move into a place they should not be discriminated against because they are retarded. Most people would rather turn them down because they are mentally retarded, and they figure it would be a low cut in rent, but it is not happening.
The best part of all, we are Canadian citizens; we feel we should be a part of the Canadian citizens instead of feeling second class.
The reason we are called People First is it is very important for our rights to such opportunities to be protected in the Canadian constitution. Please do not ignore us. We are people who are Canadian citizens first and handicapped second.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Lincoln.
Mr. David Vickers (Vice-President, Canadian Association for the Mentally Retarded): Mr. Chairman and Members of the Committee, we are here this morning to discuss with you a question of values. We are speaking of the value that will be placed upon the lives of our sons and daughters.
We are speaking to you about the value that will be placed upon the lives of thousands of Canadian citizens; these Canadian citizens living with a handicap, whether real or perceived.
Our plea to you is not a plea for special rights. Our plea as advocates of people with a handicap is that they too will be afforded the full opportunity that attaches to their Canadian citizenship: in short, a plea that they will not be forgotten in
the new Bill of Rights so that they may become, as David has just said, Canadians first and handicapped second.
We ask you to pause for a moment, if you will, to consider the needs of an average Canadian citizen. Think of your own needs and how they have been met throughout your life. Canadians who are handicapped are no different in that regard than you or I. To achieve the limits of their potential they require, first of all, the ability to live, and in particular adequate health care.
Second, they require an appropriate education in the least restrictive alternative.
Third, they need appropriate vocational training and thereafter appropriate vocational opportunities.
Fourth, they need appropriate residential accomodation, again in the least restrictive alternative.
Fifth, they need appropriate recreational and social opportunities.
Antidiscrimination clauses in charters and human rights codes contains statements of conduct that is prohibitive. In addition to such statements of prohibitive conduct, our association favours a statement of positive rights. We say that those values to which we all subscribe as Canadians can be and ought to be stated as basic conditions of social, economic and cultural rights in Canada.
Unfortunately time has not allowed us to conduct an exhaustive study in that regard. In the preparation of our brief we have strived to return to the basic question, what are those values to which we can subscribe and how can they be entrenched in a charter of rights within the Canadian constitution?
Therefore we had reference to the International Covenants Board on Human Rights. These United Nations Covenants have been subscribed to by Canada and the provinces.
We are told that the ratification of these convcnants. the appointment of a Canadian representative to the Human Rights Committee and the subsequent ratification of the optional propocol remain today as a shining example of federal-provincial co-operation.
Therefore, since August 19, 1976 when the document came into effect, we have had a set of international values to which we could refer when considering the very issues which are before us today.
The first of these covenants deals with economic, social and cultural rights. the second with civil and political rights. Our list which was taken from these covenants is found at page 2 of our brief.
From the second covenant, Article 6 and the first convenant, Article 12, we have extracted the right to life and the right to health care. The remainder are all taken from the first covenant and include Article 11, the right to adequate food, clothing and housing; Article 10, the right to protection and assistance of the family; Article 13, the right to an appropriate
education; Article 7. the right to an opportunity to work, and just and favourable conditions of work; Article 8, the right to participate in trade unions and Article 9. the right to social security.
It is essential that we take just a moment to say a few words about the right to an appropriate education. Many Canadians who are handicapped are denied this basic right referred to in the International Covenant and subscribed to by Canada and the provinces. It is fundamental to the growth and development of all persons that they receive an appropriate education in the least restrictive environment. It is more than interesting to note that Section 23 of the proposed constitution act 1980 provides and I quote:
the right to have their children receive their primary and secondary school instruction in that minority language if they reside in an area
And so on. Surely, there is a missing link in the logic of this section. There is indeed the need to entrench the right to an appropriate education and thereafter to deal with the equally important question of minority language educational rights. Without the entrenchment of that value, the right to an appropriate education, Canadians who live with a handicap condition are at the outset denied the means of access to many of the benefits of Canadian society.
We recognize that it is an imperfect world. Achieving a consensus on a host of positive rights may be difficult, but nevertheless worthy of the great past which is yours at this moment in our history.
There remains the need for an antidiscrimination clause such as Section 15; however, we wish to convey to your Committee the urgent necessity to add to the specific grounds, and I quote:
“handicapping condition”, whether physical or mental
The year 1981 will be International Year of the Disabled. It would be an appalling commentary on our Canadian values if we failed to entrench in that year, in our new constitution. protection for all Canadians who live with a handicap whether real or perceived. The usual objection raised to inclusion of handicapped as a prohibited ground of discrimination is that such a measure might obstruct programs designed to remedy the effects of the long history of negative discrimination. We believe that the usual exceptions to affirmative action programs can relieve this concern. And you have dealt with that in the subsection to Section 15.
There is a second objection from those who say that in order to benefit from antidiscrimination clauses a person would first have to identify himselfor herselfas handicapped. This objection can be overcome if the terminology used is defined broadly, such as we find in a definition of “handicapped person” which can be found in the US. Rehabilitation Act of 1973. There “handicapped person” is defined as any person who has (a) a physical or mental impairment which substantially limits one or more of such person’s major life activities; (b) has a record of such impairment. or (c) is regarded as having such an impairment.
It is noteworthy that particularly under subsection (c) of this definition the focus is clearly on the act of discrimination rather than on whether the person discriminated against can be fitted into the protected category. That is the essential purpose of the statutory definition.
In summary, Mr, Chairman and members of the Committee, our Association urges this Committee to consider enlarging the statement of positive rights for all Canadians and to consider in particular those economic, social and cultural rights which today form the foundation of our Canadian society.
Finally, we join with many other Canadian organizations and ask that the words “handicapping condition, whether physical or mental”, be added to the list of prohibited grounds ofdiscrimination found in Section 15. Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Vickers.
The honourable Walter Dinsdale.
Mr. Dinsdale: I should like to welcome you three gentlemen who have so effectively represented the cause of the mentally handicapped community in Canada. I am sure you are aware that we have a Special Parliamentary Committee on the Disabled and the Handicapped that has been in action now for almost six months; on the basis of our investigation, we quite soon came to the conclusion that one of the areas of rather tragic neglect so far as human rights are concerned, was that of the mentally handicapped citizens, including both the mentally ill and the mentally retarded.
We had an opportunity to see the people first in action in some of our hearings, and I think members of the Committee will be quite impressed when I tell you that one of the most effective presentations was done quite spontaneously without the benefit of notes by one of your representatives in Vancouver who tried to define mental retardation and this is Brian I am speaking of: he said, “I am mentally retarded”, and he tapped his forehead, and said “That means that I think a little slowly”, then he paused rather dramatically and said: “I know some politicians who suffer from the same disability”. It is obvious from your presentation here this morning that this is the case.
We were so much concerned that our Special Committee produced an Interim Report, I presume you gentlemen have seen that report. One of the statements was to the effect:
Should it be the will of Parliament to entrench human rights in a patriated constitution, your Committee believes that full and equal protection should be provided for persons with physical or mental handicap.
There has been no protection at all, Mr. Chairman, other titan the United Nations Human Rights Charter to which we have subscribed; but there is no protection in terms of meeting the needs of the mentally handicapped.
Now, having said that. Mr. Chairman, I wonder ifwc could get down to specifics and ask the people who are representing the mentally retarded this morning, if they feel that Section
1—and this has become a big issue during the course of the hearings of this Committee—abrogates the rights that are guaranteed in Section 15 of the bill. I presume the witnesses have the resolution before them. I think this is a fundamental point, because it is quite clear today, Mr. Chairman, that there is discrimination against the handicapped, particularly the mentally handicapped.
It is not an accepted body of thought that the mentally retarded, in particular, should have all the rights under a Human Rights Charter. Are the two in conflict?
Mr. Vickers: Mr. Chairman, my own personal view is that it is giving with one hand and taking away with the other. We have not addressed ourselves specifically to that question. feeling it was our mandate to address the issue of entrenching rights for handicapped people.
But, looking at Section 1, and speaking with my legal hat on for one moment, if I may, it appears to me to be giving with one hand and taking away with the other.
Having read, for example, Mr. Fairweather’s comments before the Committee. I am bound to say I subscribe to what he has had to say about appropriate amendments to that section. I feel it does need some work.
Mr. Dinsdale: Mr. Chairman, do I take it that Mr. Vickers is saying that there is a direct contradiction. He has not quite phrased it that way, but the two nullify one another in effect. is that correct?
Mr. Vickers: Yes, I agree with that. One seems to offset the other.
Mr. Dinsdale: We, in our Interim Report, recommended very strongly that the Charter of Human Rights or the Human Rights Act, in other words, should embrace all the rights that are in the Human Rights Act for the handicapped. Do you think this adequate human rights protection for the people you are representing here this morning? We have a human rights act which was passed in 1977. At that time public opinion was such that the only right that was enshrined in the human rights act—just three years ago, which goes to show how slowly we learn—was the right to employment.
There were numerous arguments put forward at that time to the effect that the human rights act could not go further. We do not propose to outline them here, even though this was the limitation of rights so far as the handicapped was concerned, it did not even embrace the mentally handicapped community, even so far as rights of employment are concerned.
Now, if we were to proceed on the basis of the recommendation of the Special Committee—and it is an action-oriented Committee, I can assure you gentlemen—and have the Canadian Human Rights Act amended so that the handicapped community were covered completely by that act, would it be sufficient so far as meeting the needs of the people you are representing this morning is concerned?
Mr. Vickers: Again, I come back to the basic value question. I am thinking in terms of vocational and residential opportunities, and in particular, educational opportunities, if
they are, indeed, basic Canadian values, then I would argue that they ought to be entrenched with the Bill of Rights and not placed simply within the human rights legislation which can be amended by Parliament at Parliament’s will.
So that if you are talking about basic questions of value. speaking as a Canadian and as an advocate for handicapped people, I would argue that those basic values ought to be entrenched within the constitution and not placed necessarily within the Bill of Rights. A Bill of Rights is a second prize. We have never had any prizes for our handicapped friends, and if we are to take anything, obviously we would be prepared to accept amendments to the federal code.
On the other hand, it is still a second prize so far as we are concerned. The people for whom we advocate are now entitled to a few of the first prizes.
Mr. Dinsdale: You mentioned in your presentation—a vitally important point—access to education and training. We discovered, as we met with 600 people across Canada, that the area of learning disability is totally limited in its services in Canada, and this affects the area of the mentally retarded, in particular.
And the theme is that this has been a good year in Canada for the disabled. We have had the World Congress in Winnipeg and we are coming into the Year of Disabled 1981, and our report will be tabled to coincide with the Year of the Disabled. A theme of the report will be deinstitutionalization, getting the disabled out of what we call human warehouses where the care is merely custodial and where there is no provision for recreational, educational and transportation and all the other vital services that are needed to meet the needs of the disabled community. All this has to it an economic factor as well. lt is tremendously expensive—custodial care without any rehabilitation.
So if Parliament enshrines, as you are recommending, a Charter of Rights for the Disabled in specific terms, and if we got rid of the conflict between Sections 1 and 15, do you think it would be helpful in encouraging this process towards deinstitutionalization?
Mr. Mercure: Yes, we believe that type of protection would help our local association to make sure that the specific rights of individuals are protected. This would help us to create services within the community.
This is the reason why deinstitutionalization takes a very long time to accomplish, because most professionals, even most governments. address themselves to deinstitutionalization, but we cannot accept these people within the community without support services, which, in the long run, could be a lot more effective. and sometimes even less costly to the community as a whole.
More than that, we believe that any segregation for any group increases very rapidly the difference in behaviour and also it is a fundamental question of value in our society to accept the human person as he or she is, not to separate or segregate any group.
The mental retardation people have not been segregated for a long period of time. It is only in the last 100 years that that problem has arisen from the industrial era. Mentally handicapped people used to live within the community before.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Dinsdale.
Mr. Young: Thank you very much. I also want to thank you for appearing before the Committee and presenting such an excellent brief. I am also a member of the Special Committee on the Disabled and the Handicapped, and over the summer months, we had over 400 witnesses who made presentations to that Committee and without exception, everyone argued that disability and handicap should be included in any new charter of rights and freedoms.
I want to center on one specific area, immediately, because, to me, it indicates not only society’s attitude towards the disabled and the handicapped, but it is certainly a crystal clear example of the court’s attitude towards the disabled and the handicapped, and particularly mentally retarded individuals.
I want to spend a few minutes, if I may, on Section 7 of the proposed charter, legal rights. and to try and tie it into the absence of any provisions for the disabled and the handicapped under Section 15.
Under Section 7 of the proposed charter it is stated:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
We have, under the Criminal Code, provisions at the present time, to issue a Governor General’s Warrant under that particular code, and I am advised as of June 1980 there were 834 individuals who were confined to psychiatric institutions after having been charged with a crime of some sort, and after being assessed by a review board of psychiatrists and lawyers, were declared not to be fit to stand trial.
As I say, there are over 800 Canadians who are confined to institutions who have not been tried, and who, in the case of the mentally retarded individuals, in all probability, will never be fit to stand trial.
There is one case in particular I want to raise with you and that is the one concerning a man by the name of Emerson Bonnar who in 1964 was charged with attempting to steal a woman’s handbag.
He has been confined in an institution in New Brunswick— and it is a maximum security institution, as I understand it— since 1964, because the Review Board does not consider him to be fit to stand trial.
In your opinion, in the absence of any specific mention of the disabled and the handicapped under this proposal and the definition under legal rights, would this at this stage help a person like Emerson Bonnar?
Mr. Vickers: I am not sure that would. I am very familiar with the Bonnar case. That case is a classic example of somebody having been labelled early on and having that label
remain on his back throughout his life. He has been labelled “mentally retarded” and “violent” and all the evidence which existed in 1964 and which exists today is contrary to that.
The evidence is that he is not violent. He is yet to be tried for the act of purse snatching. In my submission—and I have said this elsewhere—it is a classic example of the abuse of the criminal justice system. Whether the members of the community know it or not—and Mr. Dinsdale raise the question of the learning disabled—75 per cent to 80 per cent of the youngsters we have in the juvenile justice system are children with learning disabilities, to come back to the educational point. We know that. The jury have been inon that for ten or 15 years.
If the statistics below the border from the President’s Committee on Retardation were to carry through in this country— and I suspect they would-approximately ten per cent or better of the adults in the criminal justice system are mentally retarded people. I think it behooves us to recognize these statistics and to deal with the problem as a basic problem in terms of fundamental rights, rather than in terms of the criminal justice system.
Would it not be better, for example, to enshrine the positive rights of education in a bill of rights, and the right to vocational training so that these people can find their appropriate niche in life working in the community as substantial citizens rather than serving out their lives in a maximum security institution for, in the Emerson Bonnar’s case, the criminally insane?
There is no doubt that recommendations have been made for the amendement of Section 543 and onwards of the Criminal Code, both by the national Law Reform Commission and our oganization made recommendations some six years ago in terms of amendments to that provision, and the fundamental flaw lies in the provisions of the Criminal Code.
I do not deny that appropriate amendements in this bill of rights would be of some assistance. Undoubtedly Emmerson Bonnar has been deprived of his liberty for 14 years according to the principles of Canadian justice and the Canadian Criminal Code. Now, whether they are fundamental justice principles or not is perhaps a rhetorical question when you look at the result.
I would hope that Emmerson Bonnar, and our Association has become an advocate for Emmerson Bonnar and is taking today and continues to take steps to have his status corrected, but any help that we can get, whether that be through amendments to the criminal code or amendements by way of entrenching in a charter of rights would be most helpful.
The Joint Chairman (Senator Hays): Thank you. Mr. Young, your last question.
Mr. Young: Out of those 834 individuals who are confined in those institutions without benefit of trial, have you any knowledge of the numbers of that 834 who are mentally retarded.
Mr. Vickers: No, I cannot speak to those numbers but we are presently doing a survey throughout Canada with the
co-operation of the provincial authorities to try and determine that. I can tell you of my own experience when I was with government. The number in British Columbia in 1974 was 120 people.
We had at close look at what we thought were people who were inappropriately placed and by simply taking a close look at what we thought were inappropriate placements, within a short period of time we reduced the numbers from 120 down to 80, and that is with a very superficial, cursory look.
Now, I am not sure what the numbers are in British Columbia today, but i know for example there was a case in British Columbia of a young native Indian person who had been incarcerated there for three years without trial and his own only offence was that he had been public nuisance by throwing a brick through a store window. It is those cases of abuse which I think we could surface many hundreds if we were to look case by case at each individual situation across Canada, and it is that type of research we are trying to conduct right now. I suspect that it would be somewhere in the neighbourhood of perhaps 15 to 20 percent.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Young. Senator Lapointe.
Senator Lapointe: I would first like to congratulate Mr. Mercure and his colleagues, in French, on their excellent and enlightening brief.
I am very sorry that one of the most active members of the Special Committee on the Handicapped, Mrs. Thérèse Killens, is not here this morning with Mr. Dinsdale and her colleague from the New Democratic Party, but I will do my best to fill in for her, since I too am very interested in your cause.
You say, Mr. Mercure, that you fully support the Charter of Rights, basic rights, democratic rights, mobility rights and language rights. Do you not?
Mr. Mercure: Yes.
Senator Lapointe: One issue that seems to be of concern to you, and which my colleagues did not refer to, is the right to join a trade union.
Could you tell us whether the unions themselves are reluctant to let you join, or whether this is based on existing legislation.
Mr. Mercure: There are cases—and I will ask Mr. Vickers to provide details—where employers . . . In Quebec. the Bureau for the Handicapped is trying to increase the number of jobs available to the handicapped and the mentally retarded.
There have been several cases involving handicapped persons where an attempt has been made to have jobs considered as being suitable for the handicapped, but union rules, particularly with regards to seniority, have prevented this front being done.
There was, for example, darkroom work for the blind. We wanted photography companies to give blind people priority
for darkroom work and the request was turned down by the unions. This is the type of thing that is related to the union membership issue.
Maybe Bill could complete my answer.
Mr. Vickers: My experience with the trade union movement is no different than my experience with any community organizations, whether they be private or public organizations. It is largely a question of attitude, and given the opportunity and shown that the opportunity exists for handicapped people to work, I have found, certainly with the trade union people that I have spoken to, a willingness to venture into what is a new area.
I have no faults to lay with anyone. It really begins at an early age and that is why appropriate education is so important because if you and I had the opportunity to be educated side by side with a severely, profoundly handicapped person, our attitude today might not be to see that person as a handicap and to feel pity and remorse but to see that person as a whole person, as somebody that can contribute to our Canadian society. My experience with the trade union people, certainly on the west coast, is that when I have raised those kinds of issues they are no different than you and l and they begin to see what they can do.
Now, like employers and like public and private organizations, they are a long way away from actually accomodating the needs of our handicapped friends. That is why to entrench the value is simply to signal, if you will, to the trade union movement that all people, including handicapped people, have that as a basic Canadian right and that is why it is important. it is a beacon, if you will, and it affords our people the opportunity for vocational experiences which they heretofore have not had an opportunity to grasp.
Senator Lapointe: You said that you would like to see the minimum wage mentioned in the charter?
Mr. Vickers: I do not think one would deal with minimum wage per sc in the charter. i think what we are talking about in the charter is the opportunity for vocational training and vocational opportunities. David’s point was that there are people making two cents an hour in workshops, and I know of workshop situations on the west coast where people are making a dollar a week or things of that sort.
Now, it is time that those workshop opportunities be seen not as opportunities but as situations which keep handicapped people in a demeaning way of life. What we are talking about is not affording more workshop opportunities; we are talking about affording vocational opportunities where people can earn, not be given but earn a wage, and at the very minimum the minimum wage and we know of situations where those opportunities have occurred and people have gone off, if you will, on welfare and have become citizens supporting themselves and their family and community. So we are not asking for anything special, we are simply asking for the same opportunity as other Canadians, so i think that is the point.
Senator Lapointe: I see that you say in the province of Quebec they have a clause to protect the handicapped and you seem quite satisfied with this clause. Would you like to add something to it or to have it as it is in the Quebec government’s human rights?
Mr. Mercure: Bill 9, of course, as well as the L’Office des Handicapés au Québec have been a major step forward for the protection of the rights of handicapped people in that province. I believe this legislation is considered as a very progressive one and that several other provinces are considering implementing something similar. As far as we are concerned, what we want is a greater protection than just a legal one. in other words, we would like this protection to be enshrined in the Constitution, because, even if Section 1 is modified, it would probably afford greater protection than the one offered through a regular legislation, because the government would not be able to change it very easily. It would have to meet the special requirements established for amending the Constitution. I would like to add that people in Quebec are beginning to live with these new rights and the work of our local associations is specifically to make sure that these rights are actually implemented in the daily life of handicapped people.
The Joint Chairman (Senator Hays): The last question, Senator.
Senator Lapointe: Yes. Are you satisfied with the report of the Committee on the disabled when they say that full and equal protection should be provided for persons with physical or mental handicaps? You are satisfied with the declaration and you think it is encouraging?
Mr. Mercure: Yes. We mentioned, at the beginning of our testimony, that we were very pleased to have obtained this statement. However, it is still a very general statement and it will have to be specified, later on. The third paragraph of the preamble of the report, which i read a while ago, seems to us to be very satisfactory.
The Joint Chairman (Senator Hays): Thank you very much, Senator Lapointe. We have one more speaker, Mr. McGrath.
Mr. McGrath: I can be very brief, Mr. Chairman. I realize we have another witness; is that correct?
The Joint Chairman (Senator Hays): Yes.
Mr. McGrath: I would not want to keep the Manitoba witnesses waiting any longer because they are going to have little enough time as it is so i will get very quickly to my question.
l was struck by the question of my colleague, Mr. Dinsdale, with respect to the deinstitutionalizing of mildly mentally retarded people. l know that this is something that is happening across the country and indeed it is happening in Ontario. I know of course you are familiar with the Welch Green Paper, Community Living for the Mentally Retarded. I know it is happening in my own province, but something else is happen-
ing with that which disturbs me and I would like to hear how your association feels that this problem can be addressed by specifying handicapped rights within the charter, and that is what seems to be a propensity on the part of municipalities to legislate against group homes, in other words we take the mentally retarded out of the institutions and get away from the Bedlam psychology that still prevails in Canada in terms of our treatment of the mentally retarded. put them in homes so they can lead normal lives and we can treat them as human beings, and we come up against this roadblock of the municipalities trying to protect, I suppose, the best interests of their ratepayers and their neighbourhoods although I can not see how that would be any treat to neighbourhoods or ratepayers, but that is the situation I find developing and it has happened in my own area and I am sure it is happening across the country.
Mr. Vickers: Well, there is not doubt it is happening across the country and there is no doubt it is happening for a number of reasons.
The first reason it is happening, it comes back to the question of attitudes again and where do we begin to change attitudes, and my plea again is that we begin with our youngsters in school accepting the disabilities that our fellow Canadians have.
However, that does not take care of you or I who are aged and do not understand that people with disabilities are the same as us. One of the problems with respect, is the basic funding policies of provincial governments who will fund group homes of eight and ten people. and what we are talking about is a group home. a normal family environment and you know and I know that eight or ten people is hardly a normal family environment so there is a basic funding problem and if we could talk about funding homes of four or five or even six people. then our argument that we were in fact living in community as a family would be more viable. So that is the second problem.
The third problem is the problem of attitude and the problem of the inability to understand that these people have the right to live in community and live normal lives. There have been some recent encouraging decisions across Canada to assist us in this problem, the Bell Case in the Supreme Court of Canada, recently watered down slightly by a decision in the Ontario Supreme Court. We have had decisions made in British Columbia that take away the right of spot zoning in local municipalities, and where you deal with it I suppose is a structural question or an administrative question. It seems to me that if we are going to deal with it once and for all we have to come to grips with some more fundamental questions. attitudes, funding policies and things of that sort.
However, there is no doubt at all that what we are talking about as an association is community living for all Canadians. not just the mildly retarded. We are talking about community living for all Canadians.
The bill in British Columbia, for example. to keep somebody in an institution runs at $100 per day. We are talking about
$36,000 per year to keep somebody in an institution without any program and without any opportunity for an adequate social life. We think that those kinds of people can be brought back into the community and be made a part of our community and be given opportunities to thrive within the community for far less money.
Now, there may be transitional funding problems but when the bottom line is looked at, and we look at people. the value question is so important. These are Canadians and surely they have a right to get out of those institutions and live like you and I to the limit oftheir ability within their community.
Mr. McGrath: But my question was: can we legislate against these kinds of attitudes in an entrenched bill of rights?
Mr. Mercure: The situation varies from one part of Canada to the other.
I would like to point out to the committee that in Quebec, under a provision of Law 9 that was lobbied for by our association, no legal action can be taken under zoning regulations to prevent a group home from opening in a community.
In Quebec, then—and I believe Manitoba has a similar regulation—no one can take legal action to prevent group homes for the handicapped from operating, no matter what the zoning regulations are.
It is a provincial law.
Le coprésident (sénateur Hays): Thank you very much. Mr. McGrath.
We appreciate your being here this morning, Mr. Mercure along with Mr. Vickers and Mr. Lincoln.
We have your brief and we will consider it very, very carefully, I am sure the Committee will at the time we are reporting.
We appreciate you being here, thank you very much.
Mr. Mercure: Thank you for your attention and we hope that your efforts will produce results.
The Joint Chairman (Mr. Joyal): Thank you. Mr. Mercure, Mr. Lincoln and Mr. Vickers.
I would now ask the representatives of the Société franco-manitobaine, Mrs. Gilbcrte Proteau, Mrs. Lucille Roch, Director General, and Mr, Joseph-Elliott Magnet, legal adviser, to come to the table.
I am pleased to welcome you on behalf of the committee.
You have given the clerk of the committee a copy of your brief, which you amended last week, and have sent a copy of the amended version to members of the committee.
I understand that you want the amended version to be used as a basis for questioning and I would ask members of the committee that the copy they have is the amended version.
I also understand that you have a short opening statement to make before moving on to questions.
Mrs. Gilherte Proteau (President, Association franco-manitobaine): Thank you, Mr. Chairman.
We have amended our brief and we would ask that members of the committee use only the amended version.
I will first make a general statement, after which Mrs. Lucille Roch will provide details. Mr. Magnet will then deal with the legal aspects of our presentation.
We are happy to be able to address the Canadian Parliament in French. This week, we were able, for the first time, to address the Manitoba Parliament in French. For us, this was an important occasion.
We hope to be able to continue to do this in Manitoba, because we have been waiting for this right for a long time.
When Manitoba entered Confederation in 1870, French-Canadians were in the majority in that province. We had faith in Confederation and faith in a Constitution that we thought guaranteed prosperity and the right to live peacefully, in French, alongside our English-speaking compatriots.
Louis Riel valiantly defended our rights and he too had faith in the governments of Canada and Manitoba, which would protect his and his people’s inalienable right to live in French in their part of the country.
We were a proud, lively and independent community. We had our hospital, our parishes, our schools and control of our schools. We had our culture and our territory. We lived in French at no expense to the Indians or Anglophones.
Less than 20 years later, it all collapsed. Only 15 years after the Manitoba Act was passed, on November 16, 1885, in Regina, the Royal Canadian Mounted Police obeyed an order issued by the Government of Canada and hung Louis Riel.
As we soon learned, the death of this man was a sign of profound upheavals.
Five years later, in 1890, and only 20 years after the Manitoba Act was passed, the government of Manitoba abolished our right to live in French in Manitoba with a simple stroke of the pen.
We were betrayed twice in 20 years and were reduced to having to plead for each of our ideas, each of our rights, year in, year out.
The Government of Canada could do no better than to reach a compromise, the Laurier-Greenway compromise of 1896, but the Manitoba government managed to do away with even that.
In 1896, another stroke of the pen. and that was it. Not a word from the federal government, nothing to undo the wrongs that were done.
Ninety years have passed, 90 years of battles and unjust laws. But we are still proud and alive. We have regained lost ground. But we have not yet regained our full rights.
We have come here this morning to plead our case once again, but this time we are demanding that justice be done. that our francophone community be recognized, and that we be given the means to regain control of our institutions.
I am a Manitoban and my parents are Manitobans. Our family has been in Canada for almost 300 years. Our roots run deep in Canada and in the French language.
Why then have I had to live under oppressive laws? Why, when I was at school, did I have to hide my French books when the Manitoba school inspector came around? I know this went on, because it happened to me.
Why were we made to feel that it was bad and illegal to be part of the francophone minority?
How can we build a strong and united Canada when children are raised in fear? If I am not a racist, it is because, as an adult, I have understood that some human values are too important to be trampled upon in this way.
If I am not assimilated. if I still have the wealth of my French heritage to contribute to Canada, and if I am comfortable in two languages, it is because my ancestors fought for it without respite. But we do not want to spend our lives fighting.
We would rather devote our energy to other things.
Why can my sons only play hockey in English? Why can they not attend sports schools in French? Why do school principals have to speak English at school board meetings? Why do we not have control over our schools, our recreational facilities and our social services?
What harm could that possibly do to non-francophoites?
In 1874, Louis Riel said:
All we want is that the Manitoba Act be enforced; nothing more, but certainly nothing less.
In this Act, as with the Act of Confederation, there was the letter and the spirit of the law. We want to live according to the spirit of the law.
Riel had a vision of a free and peaceful French-speaking people, living in French in Manitoba. Riel is dead, but his
vision is not. We still believe in it and it is this vision, ladies and gentlemen. that we want to live by.
We hope that whoever is responsible for the final version of the Canadian Constitution will do more than simply draft legislation. The Constitution must be based on a broad and generous vision of Canada. it must serve individuals and communities across Canada so that we can live together in a strong and united country.
The Joint Chairman (Mr. Joyal): Thank you, Mrs. Proteau.
Mrs. Lucille Roch (General Director, Société franco-manitobaine): As legislators, you have an important role to play. You will soon be called upon by the Parliament of Canada to recommend amendments to the proposed resolution and define, in a very concrete way, the Canada of the future.
We are asking you to be generous. to have a vision of Canada that will allow all Canadians to feel at home anywhere in their country.
Freedom of movement and the freedom to live anywhere in Canada will mean nothing if Canadians, particularly French-Canadians, cannot leave their home province for fear of losing their language and not being able to pass on their culture to their children.
As long as the French-speaking community is strong, Canada will be strong. As long as francophone communities are on a equal footing with their English-speaking compatriots, truly and permanently, Canada will be strong.
To do this, we must have the means to develop our community. We need institutions and services to help us remain what we are: francophones. We must be able to direct and control our development.
This is important if we are to avoid developing haphazardly.
At this time, the Manitoba government has no policy for developing its francophone community. The provision of health. recreation and legal services in French is sporadic.
it is particularly remarkable that we often manage to get documents, brochures, etc. in French, but it is hard to know what the provincial government offers, because there is no concerted effort; it is all very haphazard. Often, it is purely by chance that there is a French-spcaking official in agriculture, for example, who is able to provide service in an area where there is a large French-speaking population.
Since everything is left up to chance, it is hard for the community to make real choices. Chance is often a determining factor.
This is why it is important for us that the constitution include basic principles which will allow us to develop our community. The constitution must be specific and the basic principles must be set out, but it should also be generous enough, flexible enough to allow different francophone communities, which are not all at the same stage of their development, to come into their own.
We find it somewhat regretable that the proposed resolution does not include a preamble. We feel it is important to have a preamble because it sets the tone, if you like, for the constitution.
Mr. Trudeau said that a preamble will be tabled at a later date, which means that we will have to appear again to give you our views on it. I think we can say that we support the concept of the two founding peoples and would like to see it included in the constitution.
The Joint Chairman (Mr. Joyal): Thank you, Mrs, Roch.
i believe that Mr. Elliot Magnet would like to comment on certain recommendations made in the amended brief.
Mr. J. E. Magnet (Counsel, Société franco-manitobaine): Thank you, Mr. Chairman.
My name is Joseph Magnet and I am counsel for the Societé franco-manitobaine.
These past weeks have been the most extraordinary of my life. Like yourselves, I have spent the time listening, listening to a view of a Canada that could be. I have spent these weeks, as you have, thinking, thinking of a Canada where peace. justice and prosperity reign supreme. And again, like yourselves, I have spent these weeks developing the nuts and bolts ofa constitutional policy for the future.
Our view comes from where we stand. I have been standing in Manitoba where there are no mountains and one takes a broad view East to Quebec and West to the Pacific. I stand with the Franco-Manitoban community.
I have come to understand the needs of proud and Courageous people who live as an embattled minority and who have experienced a turbulent history.
Ladies and gentlemen, I have come to understand what the Quebecois fear to become. I have come to understand the difficulties of marrying Canada’s two founding nations.
The Canadian reality is cultural and linguistic duality. If we cannot protect with constitutional guarantees English and French minorities wherever found, we have not created a constitution that can survive. Our common destiny together depends upon this basic understanding. Either the project on which we are now embarked protects and is seen to protect the cultural security of English and French minorities or we have
failed at the noblest human achievement men can undertake, the building of a great nation.
In Canada there is a double inequality. And it is getting worse. Section 6 of the proposed resolution purports to grant a right to every permanent resident of Canada to take up residence anywhere in Canada. That principle we support. But saying this gives us a certain sense of unreality. Quebecois cannot take up residence in Vancouver without assimilating. Similarly, it is becoming increasingly difficult for British Columbians to go to Quebec without assimilating.
Our impression of the proposed resolution is that it condones, even encourages the widening gulf between the French and English communities, and we think this is a mistake. We think the constitution should encourage minority communities to prosper. to grow and to develop so that in future Franco-Canadians can feel secure anywhere in this vast land.
As I say, our view comes from Manitoba. We have prepared a submission which we think will assist this Committee with providing the technical machinery necessary to strengthen and encourage development of the Franco-Manitoban communities and our hope is that by so doing the dream of one Canadian nation will become a reality.
Turning to specific sections of our submission, there is a summary of recommendations which appears at the end of our amended brief and are enumerated. On Section 1, the Committee has before it a submission from the Canadian Jewish Congress that Section 1 is supefluous. I do not want to take your time; we adopt the submission.
Briefly our view is that Section 1 tries to reconcile a system of parliamentary supremacy with a charter based judicial review system and that the reconciliation fails. Let us be honest. The two systems are not reconcilable. Some limitation on parliamentary supremacy is inevitably implied by a charter based system.
On Sections 17, 18, and 19, these deal with the right to use the English and French language before Parliament, federal courts and in the printing of federal statutes.
In our view, this is not enough It perpetuates the status quo which, with respect to Franco-Manitobans. means decline and dismemberment, not the regeneration which in our view the constitution should encourage. We suggest that to protect Franco-Canadian minorities these protections should be explicitly extended to other Franco-Canadian communities.
We refrain from speaking specifically for our sister francophone associations but we wish to emphasize that with respect to Manitoba, healthy development of the Franco-Manitoban community requires these protections to be extended by constitutional text to the Manitoban minority.
It is trite that Section 23 of the Manitoba Act now contains most of these guarantees, not all of them. We think that the educational impact of including reference to the courts and legislature of Manitoba in these sections would be considerable. It would reaffirm Canada’s commitment to the principle
of duality and it would impact this fundamental precept on the Canadian consciousness.
Furthermore, if these protections are extended to Manitoba, they become part of the charter and therefore difficult to amend. Under Section 50(b) of the proposed resolution, the charter can only be amended by Sections 41 and 42, basically the Victoria formula or the double majority referendum formula. We think this is entirely proper. Important minority rights should be forced to climb the hurdle of Sections 4i and 42 before they are allowed to wither or before they can be abrogated.
Sections 17 to 19 of the proposed resolution are, in our view, seriously deficient in making no reference to the quasijudicial and administrative sides of government. The truth is that this is where the significant contact between citizens and governments occur. Our view is that language guarantees should filter down into the administrative sector. We suggest that statutory adjudicative agencies like the CRTC or the discipline committee of the Manitoba Law Society, should strain towards bilingualism, We think further that where necessary to promote the French language in Manitoba, administrative tribunals should strive towards the bilingualism goal.
Senator Connolly: At the provincial and federal level?
The Joint Chairman (Mr. Joyal): Order, please. [Text] Mr. Magnet, continue.
Mr. Magnet: At the provincial and federal level and this suggestion occurs in our proposed amendment to Section 19. It is in our summary of recommendations, number 4.
We have also included statutory adjudicative agencies and we have added a Section 19(a) which pushes administrative bodies towards bilingualism where necessary to promote the French language in Manitoba. This would be a less strenuous test, a less strenuous burden. This appears as our recommendation number 5.
This line of thinking has led us to offer an amendment to Section 20. in Manitoba, I must tell you that problems have developed in dealings between Franco-Manitobans and federal government agencies. Under the Official Languages Act. bilingualism is in place in federal government offices, but if a service representative of the agency goes out of the office to provide services to the community, bilingualism is not in place. And accordingly we think that the service representatives should provide services where the bulk of services are offered in the field. This appears as our recommendation number 6 in our Summary of Recommendations.
Let me come on to minority educational rights. Minority educational rights are critical to the development of the Franco-Manitoban community. This is the key. We must tell you frankly that we are unconvinced our needs are the same as the needs of the anglophone minority in Quebec. We want to impress upon you the needs of the Franco-Manitoban community which are distinct. Our need is for schools. for freedom of choice in schools. That is the long and short of it. That has been our primary need since 1870 and it is still the crucial,
essential foundation upon which a healthy Franco-Manitoban community must be built. So we have suggested that with respect to Manitoba, freedom of choice prevail; that public funds support minority language education; that the administration of the schools wherein the French language be confided to the minority community. In regions which have small populations we understand that a separate school may not be practical. So in such cases which would be exceptional cases, we would think that a French classroom would suffice in an otherwise English school with an English school administration.
We would extend this right to immigrants to Manitoba. We do not think that the Government of Manitoba should be cntitlcd, agai st the will of such immigrants, to force immigrants to milate to the Anglophone stream. There is enough cultural pressure on immigrants to do so.
Our recommendations in these respects appear as numbers 7 and 8, in our Summary of Recommendations where we have added a proposed Section 23.1 and a proposed Section 23(2).1.
Finally, ladies and gentlemen, on the question of educational rights, we think official language immersion education is the way of the future. It has already had significant beneficial regenerative effects in Manitoba and elsewhere.
So we propose that the constitution recognize the right to official language immersion education. This appears as our suggested article 23.2 at our Recommendation number 7.
These additions to Section 23 are in fact additions. We leave it to other communities to suggest whether Section 23 should be deleted. or whether it meets their needs or otherwise.
On Section 25, we wish to prevent any improper or sterile discussions its to whether the charter applies retrospectively as well as prospectively; and. accordingly, we have suggested an amendment to Section 25 which appears as our Recommendation number 9.
We are exceptionally concerned about the amending provisions for amendments which affect some, but not all provinces. These are Section 34 and 43 of the proposed resolution.
Section 34 entitles it simple majority of Parliament, with the consent of the Manitoba government, to diminish or abrogate existing constitutional rights of Franco-Manitobans. It would not even be necessary to consult the Legislative Assembly of Manitoba. The Sociéte thinks that this is intolerable. Minority rights cannot be made dependent upon the will of executive fiat and it simple anglophone majority.
Under Section 43, the position is improved, but it is still unrealistic. A majority of the Manitoba Legislature and a majority of Parliament would be required to abrogate or diminish the existing Franco-Manitoba minority rights.
Minority rights are fragile, and that is why they have to be put beyond the power of majorities easily to amend. This is the whole spirit behind entrenchment. The ability of the majority to amend these without more makes entrenchment a sham. Therefore. we propose that the existing constitutional rights in Section 23 of the Manitoba Act, require the amending procedures of Sections 41 and 42, which as you know, with slight modifications, the Victoria formula or the double majority referendum formula, this is the effect of our recommendations on Sections 16 to 19. and we have repeated it at Recommendations number 10 and 11 of our submission.
In our view. this is not only fair, but also logical. It comports with the spirit of constitutional entrenchment. We have offered an alternate submission which is also logical. It is that amendments which affect some, but not all provinces, cannot be made by simple majorities. They should be made only by a three-fourths vote of the membership of the legislature of the province affected and Parliament. That submission appears as our Recommendations numbers 10 and 11.
Finally, in our opinion, the Charter is seriously deficient in failing to include any provision with respect to enforcement. Franco-Manitobans have had a 90-year struggle to actualize the promise of Section 23 of the Manitoba Act, and this underlines for us the necessity ofan enforcement clause.
But our experience is not unique. In Hogan v the Queen decided under the Diefenbaker Bill of Rights, the court found evidence had been illegally obtained in defiance of the Bill of Rights, but would be admissible anyway because there was no enforcement clause in the Diefenbaker bill.
We think an enforcement clause is mandatory, and accordingly we propose the addition of Section 25(a) which appears in our Summary of Recommendatins number 12 in the following terms:
Every person or group whose constitutional rights, privileges, or immunities are infringed or are threatened to be infringed by a public authority shall be entitled to full and effectual relief by mandatory or restraining order of the Superior Court. Pecuniary compensation shall be awarded in appropriate cases.
Thank you. Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you. Mr. Magnet.
The honourable members of this Committee will have realized by now that the House of Commons is now sitting but, on the other hand, I know that several people around this table would like to ask questions to our witnesses this morning.
Our witnesses may have noticed that some members of this Committee were leaving and, of course, this is the reason.
Moreover, I understand that several senators and members of the House are willing to stay on so that we can have at least
a few questions. In any case, I am in the hands of the Committee.
Mr. Epp: Mr. Chairman, on a point of order. First of all, I want to thank the Society for their brief.
Your ruling puts all of us somewhat in a quandary, because on the one hand so far as a quorum of this Committee is concerned both Houses are to be represented. That can be arranged. But, on the other hand, the difficulty is that a Committee cannot sit when the House is in session, if I understand the rules correctly. So the quandary is there for all of us. I feel that this group has made some excellent points which require further clarification and questioning, so what is the solution?
The Joint Chairman (Mr. Joyal): Monsieur Mackasey.
Mr. Mackasey: Mr. Chairman, rather than get into a hassle, I think we can allay everyone’s fears by making it very clear that absolutely no voting takes place while all of us are prepared to remain.
The Joint Chairman (Mr. Joyal): I am sorry to interrupt you Mr. Mackasey but. . .
For the information of Mr. Epp, I am reading the terms of reference of the Special Joint Committee, and that is what I was checking when I asked Mr. Mackasey to speak. I read the extract from ther Terms of Reference:
That the Committee have power to sit during sittings and adjournments of the House of Commons.
So I interpret that to mean that we could legally sit during our Question Period, of course, if I have consent of members around this table, because we had already agreed at our meeting last night, the steering committee meeting, that we would devote three-quarters of an hour to the Franco-Manitoban Society. I realize that most of their time has been used in the presentation. So I am in the hands of the Committee, if members want to allow a tour around the table.
Mr. Epp: Well, Mr. Chairman, you are correct in saying that most of the time was taken up by the presentation; yet, I do not think we should penalize the witnesses for having to make their point. They had 28 minutes. which all of us around the table recognize. were not sufficient, and I would suggestand we discussed this in Subcommittee yesterday, and a number of us saw that this problem could develop this morningwthat we have one round now, around the table and not use it as a precedent that we could sit through Question Period.
The Joint Chairman (Mr. Joyal): That is a good proposal.
Mr. Mackasey: Mr. Chairman, one round might satisfy some of us. The important thing here is that we do have the right to sit when the House is sitting. We would not take advantage of our numerical advantage; more importantly, we need the continuity while the witnesses are here. That does not
mean to say we go on for ever and ever. We are prepared to accede at the very moment that we are not creating a precedent. You would recognize, as a Manitoban, the distance, the cost and effort that these people have made to present a very comprehensive brief.
Mr. Epp: Mr. Mackasey, I am not trying to argue that they are not to be heard. I know you are not trying to put those words in my mouth. I think all of us have difficulty, those who have had some experience, that Question Period works under a different regime than at most other times.
Mr. Mackasey: And with your prominence, it may have more importance than it does to me. As a humble backbencher. Question Period tends to be a bore at times.
The Joint Chairman (Mr. Joyal): I see a concensus around the table to the proposal as put forward by Mr. Epp.
Mr. Corbin, did you want to add something?
Mr. Corbin: Mr. Chairman, I would like to bring up a more basic consideration. We always begin our meetings late. This morning we lost between 10 and 12 minutes. I would like the chair to apply the rule from now on. We are suppose to meet at 9.30 am. precisely: members of Parliament and senators should be here on time. I think that if we can arrive at 9.30 a.m., we can also perhaps arrive at 9.15 am. That is why we are late now.
The Joint Chairman (Mr. .IoyaI): Thank you. Mr. Corbin.
The Honourable Senator Tremblay has the floor.
Senator Tremblay: Mr. Chairman, I would first like to thank the entire delegation from the Société franco-manitobaine and underline the fact that as a French-speaking Quebecer and particularly as a senator, one of whose roles it to defend minority rights through the accomplishment of his duties, I find that Mrs. Proteau’s presentation corresponds to particularly sensitive areas when she describes, briefly no doubt. but in a very feeling and significant way, the history of Franco-Manitobans. In other words, we are very aware of the problems experienced by the Franco-Manitoban community, and of its desire to change the course of history.
However, given the amount of time available to me, I will not be allowed to go into more detail on this side of the issue. Instead I will come to the substantive questions which we, as members of the Committee, must look at in order to see things in the context ofthe whole.
In the explanations contained in Mr. Magnet’s presentation. I understood that as a Franco-Manitoban association you looked at things from the point of view of your particular situation. If I understood Mr. Magnet correctly, he did not exclude the possibility that other special provincial groups might present their own points of view. But the fact remains
that when each of these ” “regionalized” points of view is expressed, the proposed resolution to particular problems does, to a certain extent, affect more general principles. That will be the object of my question.
For instance, when you suggest that Section 17, Section 18, and several other sections of the proposed resolution name Manitoba, you are suggesting what I would call a provincial approach; you are making it possible for another province, such as Quebec with its anglophone minority or Ontario with its francophone minority also be named in Section 17 and other sections; these sections would then include a sort of list of the specific situation of each province, taking into account the specific characteristics of each situation.
Is that the type of principle we should use in our approach? That is my first question.
The Joint Chairman (Mr. Joyal): Mr. Magnet.
Mr. Magnet: Well, let me just point out that under the British North America Act, Section 93, which is the educational provisions, we have a province-by-province approach to minority language educational rights, and that has continued by the terms of Union acts with the various provinces—British Columbia, Newfoundland, etc. So that the educational rights of Newfoundlanders, the minority educational rights, which are constitutionally guaranteed, are not the same as in Quebec, Alberta, Saskatchewan or Manitoba. They are all different. This is the structure of or constitution, and the reason it is the structure of our constitution is that in 1867, as now, the minority communities, particularly the francophone minority communities, were, and are, at different stages of develop ment.
In my view, Section 23 of the proposed resolution is unrealistic in trying to propose a rule which governs both the anglophone minority in Quebec and the various francophone minorities across the country. They are not the same communities, and they are not at the same stage of development; their needs, expectations and history are different.
So we have proposed a rule for Manitoba which we think is workable and comports with the existing constitution, and with Canada’s tradition and yes, we do think a rule for Quebec would be different, and I will give you an example of that: Quebec feels the need and I think feels this need with one eye cast on Manitoban history; it feels the need to assimilate immigrants to the francophone scheme of education. That is the spirit of the educational provisions of Bill 101. I can understand this, particularly having dealt with this group.
We do not think that a similar need should be felt by the Manitoba government to assimilate by legislation immigrants to the anglophone stream of education in Manitoba. We do not see this. We can appreciate the proposed resolution’s Section 23 if the concentration of focus is on Quebec; for us, it is unrealistic, and we need a different law.
The Joint Chairman (Mr. Joyal): Senator Tremblay.
Senator Tremblay: Thank you. So I did understand the underlying meaning of your statements, and it is a question of a new principle, the principle of a singularized approach, adapted to the various regional and provincial situations.
I find this interesting; this is the first time this principle has been presented to us. since the witnesses who preceded you put forth the opposite principle, that the basic reason for entrenching any right in a charter is to have that right be identical everywhere.
Those who were present when this principle was put forth will recall that its author was not a negligible quantity.
Instead, you put forth a principle of adapting the charter to specific regional situations, rather than the principle of uniform application of certain rights; at least, of language rights. I think we should make a note of that.
My second question will be my last, because I think my time is almost up.
My second question may contain it paradox. On the one hand, you support regionalization in the charter, and on the other hand you would like that regionalization to be obligatory, which raises a whole series of other questions; but is it quite clear in your mind that this must be imposed rather titan left to the initiative of the authorities responsible for the lot of the regions, the provinces themselves.
The Joint Chairman (Mr. Joyal): Mrs. Potreau.
Mrs. Proteau: I would like to answer that question.
It is perhaps unfortunate, but the performance of the legislative assemblics as far as Francophone and other minorities concerned, at least outside of Quebec, is horrendous in Canada.
I have a long list before me which l will not read you. I will spare you that, but I would like to quote you a handful of dates: New Brunswick, 1871; Prince Edward Island, 1877; Manitoba, 1890; Northwest Territories; 1892; Alberta and Saskatchewan, 1905; Keewatin, 1912; Ontario, 1912; Manitoba, 1916.
These are acts passed by legislative assemblies which gradually eliminated thc right to the French language throughout Canada.
Mr. Chairman, that is why we would like the constitution to include not only a regional adaptation principle but also an obligation principle, because history can show us past performance,
Senator Tremblay: Thank you for your answer, I think it is clear.
The Joint Chairman (Mr. Joyal): Mr. Magnet.
Mr. Magnet: To make an addendum, which is really the point, that our regionalization is with respect to collective rights, which after all are extraordinary things in constitutions.
When you look at comparative constitutional law, they are extraordinary. They occur to solve very difficult problems and tltey create problems in the constitution.
For example, we have an antidiscrimination clause in Section 15(1) of the present charter which says no discrimination, inter alia, on the basis of religion. Let us assume the charter goes through in its present form. These individual rights. Section 15(1), will enter the orbit of Section 93 of the existing BNA Act and while now denominational schools can, for example, dismiss a teacher or a secretary for denominational reasons, a catholic school could dismiss because a teacher gets divorced. This will have to be balanced against Section 15(1), an individual right and a collective right will come head to head and something must give way.
Now, we are saying that these extraordinary collective rights should be enshrined because of the history that Madame Proteau has referred to. We think it is the only way. Experience shows that the majorities do not protect minorities. These are protections for collective minorities. However, with respect to individual rights, we support this charter, not on a regionalized basis.
Senator Tremblay: Mr. Chairman, I have one last supplementary question.
Consequently, you are putting forth another principle; in fact, I find that your brief allows for the isolation of certain principles which is what makes it interesting; consequently. you make a very clear distinction between what I would call universal individual rights within Canada and certain rights based on particular collective characteristics. Was that your idea?
Mr. Magnet: Correct.
Senator Tremblay: Correct me if I am wrong, but you give priority to universal rights or priority to what may be called individual rights.
The Joint Chairman (Mr. Joyal): Mrs. Proteau.
Mrs. Proteau: That might depend on the situation.
But in minority life, collective rights are extremely important. As an individual in Manitoba, I never have any trouble when I speak English, but as an individual in Manitoba who wants to speak and live in French, without the support of the community in which I can live, what are my individual rights worth?
It is all very well to say that as a Canadian citizen I have the individual right to have my child educated in the official language of my choice. But without the community behind me, how could I have my child educated in French in Manitoba?
In English, there are no problems. Collective rights do not even exist for the majority, the community is English-speaking or at least majority English-speaking, and all the necessary
support is there. Those rights exist automatically, the individual and the collective rights become indistinguishable.
But collective rights are of primary importance for minorities, because it is the life of the community which allows the life of the individual and not the contrary.
Senator Tremblay: Thank you, Mr. Chairman, I am finished.
The Joint Chairman (Mr. Joyal): Thank you. Mr. Tremblay; thank you, Mrs. Proteau.
Mr. Robert Bockstael now has the floor.
Mr. Bockstael: Thank you, Mr. Chairman.
First, I would like to welcome Mrs. Proteau and Mrs. Roch et souhaiter la bienvenue a M. Magnet.
I would first like to touch on the introductory letter with which you prefaced your brief.
I see that the Société is in favour of the constitutional enshrinement of rights and freedoms and minority language rights, and that you do not trust… or you believe that your rights are less protected by the provincial legislative assemblies.
Hence you demand access to the courts, access to justice and to judiciary and administrative tribunals as long as they have the power to enforce or to apply constitutional rights.
That is basically what you would like to have enshrined in the constitution. Did I understand correctly?
Mrs. Proteau: I think so, Mr. Bockstael.
Mr. Bockstael: Like many other delegations which have appeared before this mixed Committee, you have repeated that it is fairly difficult to trust in the generosity of a provincial government and to expect that the majority will make concessions to minorities; so that is your reason for being strongly in favour of the enshrinement of those rights.
Mrs. Proteau: Canada’s history in any case is not unique in this area, in the fact that majorities have not always been particularly favourable towards minorities. That is the first thing.
I think that having recourse to the courts is normal, and I cannot help adding here that Mr. Lyon, who is so strongly against the entrenchment of linguistic rights on the grounds that legislative assemblies can legislate properly for Manitobans, would like himself to take the federal government to court at the present time to protect what he considers the rights of his province; he himself is now granting himself a right which he wants to refuse us as a minority. That is rather strange.
Mr. Bockstael: That is right. In one or in several of the recommendations which you make, you would like to make Manitoba what might be called an exception. But this exceptional status would arise from the fact that Manitoba had a very special status under the terms of the BNA Act in 1867 and 1871, according to Section 133 of the British North America Act as well as the Manitoba Act of 1870.
I would suggest that Section 21 of the Constitution explicitly protects the rights granted under the Manitoba Act; in Section 52 of the schedule, paragraph (1) we find that those acts remain in force. So according to opinions expressed by several lawyers, there is no great danger that your rights would not be protected.
When we look at Section 22, however, we find that it is intended to respect any rights or customs with rspect to any language that is not English or French and granted by law. In my opinion, it might be possible to also entrench the protection of these privileges with respect to English and French, according to existing laws. Perhaps the Committee could look at this and make sure that it is clearly specified, because it seems that when Mr. Magnet spoke. one of the problems he brought up was enforcement, the enforcement of these rights by the courts.
The drafting of the Constitution must be explicit so that judges and court will not be faced with amibiguities; I assume that that is what you want to have included in this Constitution.
Like Senator Tremblay, I was surprised that you do not want to support Quebec’s opinion, which seems different from Manitoba’s opinion, and that in the area of education in one or the other official languages, you seems to want free choice, which does not seem to be Quebec’s attitude; you have given your reasons for having regional differences listed.
I would like to know your opinion as a representative of the Société franco-manitobaine as to whether you would support the federal government requiring that minority language rights be applied to the legislative assemblies of New Brunswick and Ontario.
Mr. Magnet: Well, let me take your points seriatum.
First you made the point that we would like to make Manitoba an exception. Well, of course Manitoba is an exception, it has an exceptional history and it is a constitutional exception. it has constitutional rights different from the other provinces, but in this respect all of the provinces are exceptions because Section 93 of the British North America Act preserves in force the rights which any class of persons had by law at the union, so it is necessary to apply Section 93 of the existing constitution, to go back through the statute books of Newfoundland and to find out what rights a class of persons had by law at the union. Not only is Newfoundland an exception, but different classes of persons in Newfoundland are constitutional exceptions. This is the spirit of Canada.
So it is true we would continue this, we do not see any other solution, I am quite attracted myself, personally, to applying
Section 133 to Ontario and New Brunswick and as the CCLA has said. to other provinces as well. We are practical. I would be in favour of this but La Societé Franco-Manitobaine does not want to speak on behalf of the needs of other francophone communities. we leave that to such communities, We think that the Manitoba exception as distinct from the other exceptions, we require entrenchment of Sections 17 to 19 with respect to Manitoba.
Now, you say, secondly, that Section 23 of the Manitoba Act gives us these rights, and that is true. Not exactly because the protections of Sections 17 to 19 are somewhat broader in the proposed resolution, At Section 17: everyone has the right to use English and French in any debates or other proceedings of Parliament, such as this proceeding. Under the Manitoba Act we would not have the right, for example, to come here and use either official language before this committee. There are similar exceptions throughout these language provisions. So they are broader.
It is not because they are broader that is the principle thrust behind our submission that they be entrenched with respect to Manitoba, it is because Manitoba requires these protections, first by entrenchment in the charter subject to an enforcement clause. We cannot enforce Section 23 of the Manitoba Act or at least have not been able to so far. And, secondly, to put them beyond the amending powers.
Now, you say in that respect: Section 21 of the proposed resolution preserves Section 23 of the Manitoba Act and that is true, it does. but Sections 34 and 43 of the proposed resolution create a difference in how it can be amended, that is what we are afraid of.
Senator Connolly: Would you say that again?
Mr. Magnet: Yes, surely. Sections 34 and 43 of the proposed resolution are the amendment provisions, and these provisions provide a machinery for amendment of the constitution of Canada, including Section 23 of the Manitoba Act. with respect to some but not all provinces. if you want to amend the Manitoba Act now, under the Foray and Blakey decisions, you will have to go to Westminster. These Houses do not have the power and the Manitoba legislature does not have that power. That is part of fundamental constitutional law reaffirmed by the British North America Act of 1871 and it is beyond the power ofany legislature in this country.
Section 34 puts it within the power of these legislatures and not just puts it within the power of these legislatures. it takes rights, which are minority rights, which are constitutionally entrenched, not for all time but for some time anyway until there is a very stiff political will to amend them. it makes these minority rights dependent upon the simple will of the majority. They can be gone whenever, not even the legislative assembly of Manitoba says, but the Government of Manitoba says if it gets the consent of the majority of parliament. That is not fair, it is not logical, it is absurd from the point of view of constitutional law if you entrench a right, The reason for
entrenching it is to make it difficult to get rid of, not to make it an ordinary enactment easily amendable.
So in that risk back we take exception to Section 34 and Section 43, and I must say for myself, I think the draftsmen simply overlooked the Manitoba Act. I think it is a simple mistake. I might be wrong but I think it is a mistake and I think the responsibility of this Committee is to examine tlte question.
The Joint Chairman (Mr. Joyal): Mr. Bockstael.
Mr. Bockstael: I appreciate that you are pointing out these deficiencies, if we can call them that, or oversights, and that this Committee should certainly look at it along with the draftsmen.
I would like to correct a slip of the tongue. When I asked a question of your attitude and you gave your personal attitude about Ontario and New Brunswick, I said: would you want the federal government? I meant: would you want the adoption of the constitution and parliament to impose linguistic minority rights to the Government of Ontario and New Brunswick. And I would like to clarify that inadvertent use of: the Government of Canada; or the federal government.
I think that the points that you have flagged are certainly important ones and have to be taken into consideration in the context and I am sure that this is one of the matters that this Committee will address itself to and I thank you for your representation.
The Joint Chairman (Mr. JoyaI): Thank you, Mr. Bockstael. [Text]< Mr. Nystrom.
Mr. Nystrom: Just following up Mr. Bockstael’s point, I think we can solve the problem Mr. Magnet mentioned by including all language rights in the charter. Right now, Section 23 ofthe Manitoba Act is left out, and Section 133, which is applicable only to Quebec, is left out, and if we extend those in any other provinces, hopefully at least Ontario and New Brunswick, we could easily get around that problem by including all these language rights in the charter because Sections 16 to 21 are now in the charter and if you look at Section 50 you will find out the only way we can change the charter of rights is not bilaterally with the legislature in one province and Parliament, but by going through the amending formula and I think that is something all of us could agree to and certainly I think it was the intent of everybody here.
If you will accept my apologies for my Saskatchewan accent, since I am not French. I would like to say that I am very grateful to the Société franco-manitobaine to have come here this morning. I would just like to ask you one or two questions.
In your brief, I find these words:
Today, despite the decision of the Supreme Court of Canada, the Manitoba legislature is still denying Franco-Manitobans the protection of Section 23 of the Manitoba Act.
Did you discuss this issue with the Government of Manitoba? If not, would you need more time to try and give more strength to the Manitoba Act, through Section 23, or do you
think, from your own experience in that province, that there are other things that we should enshrine in our constitution?
Mr. Magnet: Well, I can say that the Associate is considering its legal position after the Foray decision and it has not yet come to a view as to what the appropriate legal recourse is. I can tell you frankly in the last session of the Manitoba legislature, 116 bills were passed, nine of them were in French, so we feel behind by 106 acts in the last session from what the constitution of Canada requires.
Now, these are not easy matters. The Government of Manitoba takes the view that the constitution does not command the impossible and we agree. How this should be implemented, what is reasonable, what the constitution requires is a novel proposition in constitutional law and the associate is considering its position.
We think, however, that with respect to the collective rights here, our enforcement clause is a good step. We think it gives recourse to the courts and it allows the courts to feel comfortable in making injunctive or mandatory orders against the government, and of course this has been found necessary in other federations with a written constitution. Sometimes the feeling of the electorate is that this is rather unseemly for judges to go ordering the legislature around. We think it is an inevitable development in constitutional law, and we think that enshrinment of the principle in the constitution is what is required.
Furthermore, I just note that under the international covenants on civil and political rights, 1966 to which Canada is a signatory and which Canada has ratified, Canada has the obligation to ensure that, this is the language of the covenanent, to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.
Mrs. Roch: Last winter, after the decision of the Supreme Court, the Société franc manitobaine met with the provincial government to discuss nterpretation of the decision. At that time, it appeared quite clearly that the government was limiting its interpretation to a bare minimum.
As Mr. Magnet has just mentioned, some steps have been taken: for example, we have been told that some 500 pages of legislation have now been translated. This week. we have been allowed to table our brief to the provincial government in the French language.
However, as far as more material steps are concerned, such as education services to the community. the political will to implement them has not yet found an expression.
Mr. Nystrom: A last question, Mr. Chairman.
As you know, my party intends to move an amendment so that Section 133 of the British North America Act applied
Ontario and New Brunswick. Monsieur Magnet [Text] said that he did not want to comment on what Franco-Ontarians may want, [Translation] But I would like to ask him a question.
If Section 133 is applied to Ontario, do you think there is any benefit in that for the Franco-Manitobans? In that case, the French-speaking minorities in Ontario would benefit from the same status as the English-speaking minorities now have in Quebec.
The Joint Chairman (Mr. Joyal): Mrs. Roch.
Mrs. Roch: Of course, the Société franco-manitobaine would undoubtedly support any legislation which could lead to a strengthening of the French language in Canada.
However, we do not want to come here to comment on the situation in Ontario, since we are mainly representing the interests of Franco-Manitobans.
Of course, any step to extend the French fact in Canada would be beneficial to franco-Manitobans, since it would allow a greater mobility for them in the country. You know that we are not now in a position to leave Manitoba, very easily. So, this extension of the French fact in Canada would be an improvement.
Mr. Nystrom: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mrs. Roch. Thank you, Mr. Nystrom.
I believe that the hon. Bryce Mackasey had a short question to ask.
Mr. Mackasey: Thank you, Mr. Chairman.
If I had a choice, I would rather ask a long question.
In any case, Mrs. Proteau, I was born not only in the province of Quebec, not only in the city of Quebec but in the St-Malo parish. Because of that, I consider myself a Quebecker. However, I am obviously not a French-speaking Quebecker.
in any case, Mr. Chairman, I would like to ask a few questions to Mr. Magnet.
The Joint Chairman (Mr. Joyal): I am sorry Mr. Mackasey, but when I mentioned that you would ask a short question, l am sure that all the hon. members around this table would have understood that it was a euphemism.
I would however like to remind you of the time and to tell you that the hon. Senator Tremblay would also wish to ask a very short question, just as everybody else asked very short questions. l would want everybody to have short questions.
You have the floor, Mr. Mackasey.
Mr. Mackasey: Thank you, Mr. Chairman.
I want to address my questions perhaps to the learned counsel for our witnesses. And naturally it refers to the very
same article that Senator Tremblay raised, and I would point out to the witnesses who are not aware that there is quite an element of nonpartisanship here. Senator Tremblay and myself are working to the same objective, we all are, for a constitution that will bring some peace and harmony and reduce as much as possible discrimination in this country, and magnify the quality of opportunity.
When you talk about freedom of choice in Manitoba for the immigrants, I can understand what you are asking. You are asking, as far as I am concerned, that new Canadians coming to Manitoba have the right particularly as citizens, when they become citizens after three years, to be educated in either of the two official languages of this country. I am perplexed at your reluctance to apply that to the immigrants and the new Canadians that come into the Province of Quebec.
Before you answer that, and I am sure you have lived all your life in Manitoba and understand what I am saying, but whether we like it or not, English speaking Quebeckers are a minority in that province. We never felt like minorities. We are the best treated minority, now that we are clearly identified as a minority, in this country. I said when I was in your province at the request of Mr. Pearson in 1963 and 1964 and 1965, that it would be a wonderful country if the Franco-Manitobans could have the same rights and privileges that the English speaking Quebcckcrs have. And they flowed from many sources, not only in 133 insofar as the courts and legislature, they flowed equally from the attitude of the people in Quebec, I used to say to Rene Levesque when I was in the Quebec National Assembly we are going to havea helluva time to separate when you realize the great number of mixed marriages in that province. I used to joke with Mr. O’Neill and Mr. Burns along those lines.
I am leading to something. I am also aware of how fragile freedoms are, as you mentioned.
I have lived in Quebec, sat in the Quebec Assembly for 18 months when Bill 101 was imposed on the people of Quebec. In many ways its objective is a desirable one, in many ways it is a very discriminatory bill. It removes, along with Bill 22, English as an official language in that province. It forbids English merchants to put an English or bilingual sign over his door. It ended the rights of the English-speaking minority in Quebec to deal in English with its own government. And it rightly or wrongly at the moment, and I think rightly, believes that it too leaves freedom of choice in Quebec in the field of education, so that a reasonable number of new Canadians coming into that province would opt for the English school system.
Nevertheless, despite that conviction which was expressed by the witness. those of us who lived in that province are prepared to live with 23(1) which limits the rights of new
Canadians coming to Quebec. I doubt if new Canadians are prepared to accept that, and l have seen it stated over and over in this Committee. I must remind you too that Bill 101 denies the right, and I think you made the point, of English speaking Manitobans going into that province and their children being educated in that language as French Canadians are denied in other provinces, but the constitution that we are proposing would at least put an end to that abuse.
But I must say that Senator Connolly has made the point that your proposal if carried to its ultimate would increase regionalization, put a completely different dimension, maybe the right one as far as Senator Connolly is concerned, on the purpose of the constitution. It would strengthen regionalization. In the ease of mobility if you carried that principle to its full extent it would give credence to Premier Peckford’s principle that there should not be mobility, and I am just afraid that by suggesting freedom of choice only for Manitoba but not for the English minority, and I emphasize the word minority. maybe not an endangered species yet, but in time will be, I think that you are not quite biting the bullet that I had hoped you might do.
The Joint Chairman (Mr. JoyaI): Mr. Magnet?
Mr. Magnet: I cannot speak for the anglophone minority.
Mr. Mackasey: But I can.
Mr. Magnet: You can, not only can but have the duty to in this Committee, to listen to them and to propose constitutional policy with respect to the development of that community. I do not want to do that.
I just would like to add a personal note to what you have said. I lived in Quebec for 10 years as an anglophone. Having the privilege to work with the Franco-Manitoban group has made my views change drastically. Franco-Manitobans came into Confederation in 1870 as a majority with constitutional guarantees. Their status was attacked in 1890 by unconstitutional legislation. They diminished. They now labour under an assimilation rate of 54.3 per cent. They are dying out. I know what the Quebecois fear to become and I can understand, although I would not adopt the position, I can understand the view in Quebec that this must not be allowed to happen to Quebecois. It is only a personal observation and I am only saying that I can understand it. I do not necessarily advocate it.
On the regionalization point you have made. I do have something to add. I do think that the individual solution which has been our constitutional tradition for almost 115 years with respect to collective rights is the answer. I do not see another answer.
The proposed resolution, Section 23, proposes a solution with respect to citizens of Canada whose,
first language learned and still understood is that of the English or French linguistic minority
et cetera. This is focussed on Quebec. This is focussed only on Quebec. There is a little back wind that spills off of this thing from the point of view of other francophone minority communities outside of Quebec. And in Manitoba that back wind is a hurricane. It means that they can continue to be subjected through legislation from the Manitoba government which diminishes their status further.
The Joint Chairman (Mr. Joyal): Thank you. Mr. Magnet.
Mr. Mackasey: Mr. Chairman . . .
The Joint Chairman (Mr. Joyal): I am sorry, Mr. Mackasey, but I would like to remind you that I ask, with much generosity, that members around this table only ask short questions and you may have thought that I was talking of small questions. I was not referring to the content but to the length.
In any case, this time, I would ask you to be really short.
Mr. Mackasey: Mr. Chairman, I intend to be perhaps shorter than what you have said to me. .
I was going to ask you on a point of order, to make very certain that I am not giving the inference that I am not aware ofthe history of Manitoba and injustice to the Franco-Manitobans and not have done my best in all my life to point that out across the country.
I hope, further, that you will not interpret my remarks as being against freedom of choice for Manitoba; I am only saying, by inference that it would be much better if that freedom of choice existed from one coast of the country to the other.
The Joint Chairman (Mr. Joyal): Mr. Magnet.
Mr. Magnet: I understand and respect this position.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Magnet. for your brief answer.
Senator Tremblay: Mr. Chairman, I hope my question will be brief.
First, I would like to thank Mr. Magnet for pinpointing the fact that the present situation is not a uniform one, and that very diverse situations are already written into the constitution; without touching on the definition of rights. I would like to mention the variety of situations now included in the provisions of the present constitutional acts with respect to legal recourse or appeal, what you called “enforcement”.
There is diversity in this area as well. For instance, where Section 93 applies to Quebec or Manitoba, an appeal shall lie to the Governor General in Council which, Mr. Bockstael, is more or less a reference to the government, after which remedial laws can be made by the Parliament of Canada.
We know the historic use made of these various types of recourse; Manitoba has seen them used quite dramatically, the
same recourse does not exist in the Newfoundland Act nor in Saskatchewan, but it does exist in Manitoba.
In your opinion would your proposal for appeal to the superior court of the various provinces, in the various provinces, replace the Governor General in Council and the Parliament’s extraordinary power to make remedial laws when pro- vince commits an offence against a right such as those included in Section 93 and which are granted by the Constitution or any of the constitutions, since there are several constitutions in this area.
The Joint Chairman (Mr. Joyal): Mr. Magnet.
Mr. Magnet: Our proposal is for the possibility of mandatory or injunctive relief from the superior courts with a small S, meaning the federal court as well.
I am not all that impressed with Section 22(3) of the Manitoba Act or Section 93(3) of the British North America Act. I think the constitutional convention now is that those sections, really, would not be used. I think it would be extraordinary if Parliament were to use those powers to pass legislation in the Province of Quebec. I think this would offend the existing constitutional conventions. I notice that in the book on constitutional amendment by Gerald Beaudoin, he shares that opinion.
I will also say that we have had experience in Manitoba with resort to extraordinary federal power in respect of deprived language rights and an appeal was taken to the Governor in Council under the Manitoba Act in 1890. The Bowell government asked the Manitoba government to restore Catholic educational rights. The Manitoba government refused. The Bowell government prepared legislation, but it was talked out and the government was defeated and, as you know, Laurier came to power and that was the end of it.
So it was there for a while and seemed to be something but proved to be nothing. Now, I think the constitutional convention is that it really is dead, and if it were to be written out of the constitution it woiuld not bother me all that much.
Senator Tremblay: Would you delete those sections or leave the position as dead as you say?
Mr. Magnet: Well, it depends upon your sense of aesthetics. I am a bit of a traditionalist, and I like that archaic and cute language. I mastered it in law school at great cost to myself and my wife. So I would be happy to see it stay. But, as I say, I do not think it has any independent constitutional force.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Magnet.
With the permission and the agreement of the hon. members of the Committee, Senator Bélisle has indicated to me that he would like to ask a very brief question.
Senator Bélisle: Mr. Joint Chairmen, hon. colleagues, I would first like to congratulate you on your tolerance. You are
so tolerant that you are making tolerance a virtue. I do not think the people he.re should repeat themselves too often. and l say that to all my colleagues in all sincerity.
The Joint Chairman (Mr. Joyal): Mr. Bélisle, I would like to point out that patience is also a virtue.
Senator Bélisle: Fine.
I would like very briefly to thank the witnesses from Manitoba; not only have they been very eloquent, but I think that they have enlightened and informed us on their position.
As a Franco-Ontarian, I understand that you have experienced problems and that in spite of your problems you have made an important contribution to the evolution of Canada.
As a Franco-Ontarian, I am proud to recognize that fact, because we Franco-Ontarians have also been the object of much injustice.
I did not come hre to voice grievances, but to listen to your requests, and I congratulate you.
Matty subjects have been discussed, and I would like to ask you a simple question: On page 4 of your brief you say that “the Constitution should guarantee a much broader variety of federal services in French in Manitoba. Federal government services should be provided in French, even when those services are available elsewhere than in government offices.”
As Franco-Manitobans, do you not enjoy all the privileges of the French language available through all federal government services?
The Joint Chairman (Mr. Joyal): Mrs. Proteau.
Mrs. Proteau: To say that we enjoy all the French-language services of the federal government is to say a lot. Our enjoyment is quite limited.
Senator Bélisle: First, do you get service?
Mrs. Proteau: You know. I would be most pleased to discuss this with you in more detail after the Committee, because it is really going to take too much time.
Intentions are good, but implementation is very difficult. When we mention this, it is because we must not forget that there is still something to be accomplished in that area. still it great deal to be accomplished.
it is not that these services do not exist, but that they exist in a very limited way, and are very difficult to implement. As a French-speaking community, I think it would probably be advantageous for us to sit down with our federal government and to say: “Listen, in some areas it is working, in some areas it is not working; you could do this. that, and the other thing, we need these things. and we do not need those things.”
That might also clarify the issue as far as the Official Languages Act is concerned; in principle. this is a good act, but it is hard to implement in the West, because the majority is after all mainly Anglophone.
Senator Bélisle: The learned gentleman said that the collective rights should be enshrined in the constitution. It is not clear in my mind if you went beyond the two official langua-
ges. Did you go beyond, or is it your intent that all the collective rights should be enshrined in the constitution?
Mr. Magnet: We have not made any submission on this. Our submission has been focusscd on official language minority collective rights. I would not presume and I have not done my homework on the collective rights, for example, of native peoples which you refer to in Section 24 or the collective rights of minorities I simply am not equipped to make submissions on this.
Senator Bélisle: Thank you.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Bélisle.
Mr. Corbin has asked to have the floor.
Mr. Corbin: Yes, Mr. Chairman. very briefly. This is a very general question. I would like to ask this morning’s witnesses whether they have detected within the population of Manitoba, unlike the support and the rather cold response they have always had from their provincial government, a little more sympathy from the Anglophone population of Manitoba towards the points of view you have expressed here this morning.
Could you comment on that, please?
The Joint Chairman (Mr. Joyal): Mrs. Proteau.
Mrs. Proteau: We are very pleased to be able to answer that question, because we do in fact detect increasing evidence that not only are many individuals and groups in Manitoba, both English speaking and from other minorities, becoming more sympathetic, we also find an increasing understanding of our situation and our requirements, and less and less fear in a major part of the population.
Mr. Corbin: Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much, Mrs. Proteau, representative of the Société franco-manitobaine. and your colleague Mrs. Roch, Directior General, and Mr. Elliott Magnet. I would especially like to thank you for lending yourselves to our meeting this morning which, as you have noticed, has gone long past the time allotted to it; I am sure that none of the members around the table will regret having listened to you and having had the opportunity to ask you all our questions.
l would like to give you a warm thank you.
I would like to remind the hon. members of the Committee that our deliberations will resume Monday evening at 8 p.m. when we will hear the Protestant School Board of Greater Montreal.
Meeting adjourned until Monday evening at 8 p.m.
From the Canadian Association for the Mentally Retarded:
Mr. Paul Mercure. President;
Mr. David Vickers, Vice-President;
Mr. David Lincoln, President (People First—Ontario).
From Société franco-manitobaine:
Mrs. Gilberte Proteau, President:
Mrs. Lucille Roch, Director General;
Mr. Joseph Elliott-Magnet, Counsel.
*On Order — Available Soon