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 11 (24 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 11 (24 November 1980).
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HOUSE OF COMMONS
Issue No. 11
Monday, November 24, 1980
Senator Harry Hays
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
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 OF CANADA
Senator Harry Hays
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Campbell (Miss) Harquail
(South West Nova) Irwin
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons.
On Monday, November 24, 1980:
Mr. Thacker replaced Mr. McGrath;
Mr. McCain replaced Mr. Crombie;
Mr. Speyer replaced Mr. Epp;
Mr. Beatty replaced Mr. Dinsdale;
Mr. Fraser replaced Mr. Hawkes;
Mr. Robinson (Burnaby) replaced Mr. Young;
Mr. Harquail replaced Mr. Henderson.
Pursuant to an order of the Senate adopted November 5, 1980:
Senator Lucier replaced Senator Neiman;
Senator Lamontagne replaced Senator Lapointe:
Senator William J. Petten replaced Senator Ernest G. Cottreau:
Senator Austin replaced Senator Bird;
Senator McGrand replaced Senator Goldenberg;
Senator Balfour replaced Senator Bélisle;
Senator Muir replaced Senator Bielich.
Published under authority or the Senate and the Speaker of the House of Commons by the Queen’s Printer for Canada
Available from the Canadian Government Publishing Centre, Supply and Services Canada, Hull, Quebec, Canada KIA OS9
MINUTES OF PROCEEDINGS
MONDAY. NOVEMBER 24, i980
The Special Joint Committee on the Constitution of Canada met at 8:05 o’clock p.m., this day, the Joint Chairman, Mr. Joyal, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Austin, Balfour, Connolly, McGrand, Hays, Lamontagne, Lucier, Muir, Petten and Tremblay.
Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Fraser, Harquail, Henderson, Irwin, Joyal, Lapierre, Mackasey, McCain, Nystrom, Robinson (Burnaby), Speyer and Thacker.
Other Members present: Messrs. Flis and Smith.
Witnesses: From the Protestant School Board of Greater Montreal: Ms. Joan Dougherty, Chairman; Dr. L. P. Patterson, Chairman, Constitution Committee; Mr. Marcel Fox, Director General. From the New Brunswick Human Rights Commission: Dr. Noel A. Kinsella, Chairman; Mr. Francis Young, Legal Counsel; Dr. John Humphrey, President, Canadian Human Rights Foundation; Ms. Sandra Lovelace, Tobique Indian Reservation, New Brunswick.
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 o f Proceedings, Thursday, November 6, 1980, Issue No. 1.)
Ms. Dougherty and Mr. Patterson made statements and, with Mr. Fox, answered questions.
Senator Hays assumed the Chair.
Messrs. Kinsella, Humphrey and Young made statements and answered questions.
At 10:46 o’clock p.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Monday, November 24, 1980
The Joint Chairman (Mr. Joyal): Order please.
I would ask the representatives of the press who have tape recorders or cameras to leave the room and I will ask the members of the Committee to take their seat around the table so that we can resume our work with our witnesses tonight.
Mr . Beatty: Mr. Chairman, may I put a brief question to you? While we are waiting for things to settle down, can you tell me what is the current situation in terms of the number of witnesses who have asked to appear? Has there been any recent count?
The Joint Chairman (Mr. Joyal): I have been in consultation this afternoon with our Clerk. I spoke to them around 5 o’clock. I am able to tell you that there were around 175 briefs which were registered with the Clerk of the Committee.
Mr. Beatty: How many were requested to attend?
The Joint Chairman (Mr. Joyal): Most of them. And another 30 briefs were expected.
Mr. Beatty: Mr. Chairman, each Committee member has had a copy of any written briefs, and some of these have been very helpful. Have these been made available to the press? It would be useful for members of the press and the public to have a chance to see what the cross-country opinion is on the matters we are here to discuss. Secondly, they are people like Professor Elmer Driedger, the former Deputy Justice Minister for the Federal Government who deals with the whole question of the legality of the process, and that brief would be very helpful to people who are doing background information on the whole exercise with which we are involved. Is that reliable?
The Joint Chairman (Mr. Joyal): I understand your question; but you will appreciate that the briefs which are sent to the Clerk are first of all for the use of members and are made public to the press, either the day that the witness comes to appear and support the briefs, or, as at the moment, where the Committee is ready to wind up and open all the briefs to the press.
If this Committee agrees lo do what is contrary to normal procedure, then the Committee will have so to decide. But the Committee will certainly take a decision in that regard.
On the other hand, if a witness sends us a brief and authorizes us to make it public I do not see on what ground we could retain it. But I think it is a privilege of the witness who has sent us the brief to have the brief studied and then discussed among members before it is made public on our initiative.
Mr. Beatty: Is it your intention to make all briefs public following the conclusion of the Committee’s hearings?
The Joint Chairman (Mr. Joyal): Yes. As you know, usually the briefs are tabled with the Library, and anyone who wants to check the briefs can do so, just as royal commissions or special joint committees have done in the past.
But as to the special study made by the Professor to whom you have referred, as I have mentioned, if the Professor or any other person authorizes the Clerk to circulate the briefs to other people, especially members of the press, personally I have no objection to doing so, providing we have such authorization.
Mr. Beatty: I notice Professor Driedger and a number of other individuals—I have not noticed that anybody indicated that they would like to have the brief held in confidence. But could a list of witnesses or organizations who have submitted briefs be made available to the press so that the press could contact those individuals or organizations?
The Joint Chairman (Mr. Joyal): Exactly. I will conclude by referring to, for instance, the case of the Canadian Com- missioner of Human Rights. He sent us a brief three days before his appearance before this Committee. He had made it quite clear that he did not want to have his brief published before he came before the Committee. In such circumstances, it would be most improper to release the brief to members of the press or to anyone else before the witness has had an opportunity to appear before us.
But if the witness gives us the authorization to proceed with the brief and to circulate it and make it available for the press, as I have mentioned, then our Clerk certainly has no objection; and I, for my part, have no objection and I believe in this instance 1 can say the same is true of the Joint Chairman, Senator Hays.
Mr. Beatty: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Mr. Robinson, do you have something to say on the same point?
Mr. Robinson: No, Mr. Chairman. But just a very brief point, if I may. Some time ago when the Minister of Justice appeared before this Committee, he gave the Committee, at least as I understood it, an undertaking to release the content of certain public opinion polls, three public opinion polls insofar as they are related to the matters which are now before this Committee.
I wonder, Mr. Chairman, if you or your Joint Chairman, have had an opportunity to follow up on behalf of the Commit- tee this particular commitment, and if so, when might these documents be tabled before the Committee?
The Joint Chairman (Mr. Joyal): I can certainly take it upon myself and with our Joint Chairman, Senator Hays, to get in touch tomorrow with the honourable the Minister of Justice and ask him if he has made up his mind about the time or date that he intends to make those results available and I would certainly report to the Committee.
But up to now I have not had an opportunity to discuss with the honourable the Minister of Justice the basis of your request.
Mr. Robinson: Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
If there are no more questions, I would like to introduce tonight, with great pleasure, the representatives of the [TEXT] Protestant School Board of Greater Montreal, [TRANSLATION] Mrs. Joan Dough-
erty, Chairman, Dr. L. P. Patterson, Chairman of the Constitution Committee, and Mr. Marcel Fox, Director-General.
Ms. Joan Dougherty (Chairman, Protestant School Board of Greater Montreal): Mr. Chairman, ladies and gentlemen.
We welcome very much this opportunity to be heard. We have a brief that we sent ahead of us, which was prepared several months ago. It is a bare bones kind of brief, which attempted to lay out certain fundamentals which we think would be a minimum requirement of our constitution if parents are to have the kind of education they want for their children. Our concern is that the constitution should guarantee both the choices and the structures that are necessary to fulfill parents’ wishes.
What we are going to do tonight, however, something which the brief did not directly address itself to, is, first of all to address ourselves to the minority language rights and education provisions, specifically Section 23 of the proposed resolution which is under review by this Committee.
In addition, we intend to recommend several important constitutional considerations with respect to the financing and structures of education which will be dealt with in our brief. In other words, the brief includes a lot of material that we will not speak to. We will speak to much that is not in the brief.
I would like to begin by telling you a little bit about who we are and what our experience has been, so that you understand our perspective in talking particularly to Section 23 and parents’ rights as well as structures which are required to be guaranteed by the constitution for educational purposes.
The PSBGM predates Confederation by many years. We are the largest Protestant school board in Quebec, and until recently, one of the largest in Canada. Our territory covers three quarters of the Island of Montreal, and we provide elementary and secondary education to a very diverse clientele of children of many languages and racial origins and a wide variety of social backgrounds.
Most of our children are noncatholic. For those of you who are not familiar with the school board system in Quebec, that system is denominational. We have Catholic school boards and Protestant school boards. The majority of the children go to the Catholic school boards which are majority French; but they serve French and English children.
The minority school boards are Protestant, and they serve all the noncatholics. So we have a great variety of children, so that, in effect, we are like the public school boards, the majority school boards in the rest of the country.
In the rest of the country, in most provinces, you have the reverse kind of situation, so that.you have a minority Catholic board in the other provinces, and the majority, the public, which is open to all
Our school board provides English education for some children, French education for others and a very large sector of French immersion education, either starting at kindergarten or in grade seven.
For the past 15 years, we participated in, and indeed, we have been the focus of stormy social educational and political debate about language and religion and the control of education and how it should be financed.
Law after law has been passed in our province, which has severely restricted our rights as a local government to manage our own schools, our rights to negotiate with our own staff, and our rights to tax our own constituents and also severely restricted our rights to determine the language in which our children can be educated.
We went to court over Bill 22 about five years ago, we guess, because we were convinced that Section 93 of the British North America Act not only protected Protestant school board rights, but inherent in that, was the right to deliver education in the language that we wished for our children.
We found out in court that we had no such language right under Section 93 of the British North America Act. In fact, we were told that the Quebec could do anything it liked about language rights, and the school boards had no say in the matter.
Over a ten-year span—the last ten years—our English kindergarten enrollment has been reduced by two thirds. Start- ing in 1967, when we had a population of 67,000 children, 95 per cent of whom were provided with English education, we are heading for 1985 enrollment of 25,000 maximum of whom 50 percent will be in French instruction and 50 percent in English instruction. Most of our English instruction children will be in French immersion; in Quebec French immersion is considered an English program.
Few public institutions have experienced and survived the stress of such rapid and massive change.
Because the education of our children is by its very nature such a potent, social force in determining the kind of people we are and the kind of society we envision, we have in recent years become not only a school board responsible for providing good education in response to parent wishes, we have of necessity become a major spokesman in the province for certain funda- mental social orientations which we think are essential if we arc going to survive not only as a community of minorities in Quebec but survive as a democratic nation.
We want a Canada which not only talks about justice and freedom and opportunjty and respect, and respect for local control of our social institutions, but a Canada which has the courage to practice what it preaches and build into its laws the necessary safeguards and democratic principles so that all of
our people can benefit from these important values in order to realize their own personal aspirations.
Our convictions have been strengthened by having experienced both the pain and the privilege of participating in the referendum debate in Quebec. What we heard and shared during that debate was a passionate outpouring of the hearts of millions of Quebeckers who shared a common faith, a common vision about the possibilities of their great land, Canada; the kind of democratic society we want to build together.
Mr. Chairman, we have come to say to you, do not sell them short. The constitution that we want to see, Mr. Chairman, is a document which embodies the principles we believe in together; a document with vision and embodiment of the faith and hope in the future that lies in the hearts of Canadians everywhere; a document which comes to terms with the kind of people we are and the kind of people we want to be; a document which has the courage to face some hard questions. Are we a nation where two official languages are going to be equally nurtured and respected or not; are we going to build a nation of opportunity for all our people, no matter who they are, or are we not; are we going to guarantee access to public services for all of our people or are we going to sacrifice the interests of some individuals to the many; are we going to go the way of expediency and settle for short term goals, trade-offs motivated by partisan interests which can only result in full rights for some and limited rights for others?
This is our perspective, Mr. Chairman.
Now, I want to get into the specifics of education, and the constitutional proposal about minority language rights.
In looking at this proposal, our first premise is that in considering what education should be for a child, and what kinds of organization and supports are necessary to deliver it, you have to begin with the parent and the child, the family. Education begins in the family and the school is an extension of that family’s wishes.
So what are the purposes of schools in relation to language and culture?
I can see three main purposes of parents’ choice with respect to schooling. The first is cultural preservation. I was going to read to you but I do not think it is necessary, I think back in the Laurendeau-Dunton bilingualism and bicultural report, culture was very adequately described and I think that we all recognize the cultural preservation and that one of the very important conditions of cultural survival is language; they go together; so choice of education is very much related in parents’ minds to cultural preservation.
The second purpose is second language learning, and that is a very important reason for parents’ choice. Parents across this country are inventing all kinds of education, bilingual education, French immersion of all kinds and various permutations and combinations of English and French education designed to maximize the child’s second language learning. This is happen-
ing not only in Quebec but very, very rapidly in development across this country. Parents know that second language learn- ing is important; it is useful not only for interpersonal communication, better understanding in communities; it also is going to contribute in large measure to greater national under- standing. For all of us that is a very, very important goal.
The third purpose of education in relation to choice of language is for a child to develop the skills to be a useful citizen in the marketplace.
I think we have to keep in mind those three very, very important goals in examining any provisions in any law which might restrict choice of the language of education.
Given all these important purposes that education plays in personal and in community development and in national life, how can anyone in all conscience make laws which restrict choice when it comes to the language or languages of education.
To turn it around, should we not be guaranteeing access for all people to whatever kind or kinds of public schooling they choose? Should we not be wanting to maximize children’s possibilities for cultural preservation, second language learning and success in the marketplace as well as greater interpersonal and national understanding? Surely the federal government can learn a very important lesson from Bill 10l in Quebec and the effect that it has had. The purpose of Bill 101 was legitimate and commendable, cultural preservation. Where Bill 101 has had serious problems and questionable and dubious results is in the means that were used in relation to education and the restriction of provisions of access to education.
Why did the immigrants in Quebec. the non-French, non- English immigrants scream and yell about Bill 101? Not because they objected to having French education, those people from other countries know that the more languages you speak the better, but because it restricted what they felt to be the personal and social development of their children which was necessary for success in their personal lives and in their working lives; and mobility in this country and in North America.
The irony of the restrictions of access to English education under Bill 101 was that the majority French population in Quebec is restricted in their own social development and success in the marketplace, and the minority, who have suffered serious economic consequences and diminution of numbers, the English, where left with all kinds of choice of any kind of education whatsoever.
I think we have to learn a lesson from what has happened under Bill 101 in Quebec, and I think already many people are questioning whether the means that were adopted in relation to the educational provisions under Bill 101 are in fact, in the long term, going to have the results that were intended. There is all kinds of evidence that the results are going to be absolutely the reverse of what is intended, and in fact the majority’s language and culture may well be diluted by the
forced entry of people of many other kinds of languages and culture and the minority will have the best of all worlds.
To illustrate the absurdity which the authors of Bill 101 will go to in blinding themselves to only concern with cultural preservation and not the other reasons for parent choice, recent demands on the part of French parents for English immersion as a part of French schooling in the Province of Quebec have been refused by the Department of Education on the grounds that English immersion is English and these children are not eligible.
Now, let us examine Section 23. Now, I am going to cite at least nine or ten reasons why Section 23 does not make any sense.
Section 23 discriminates against the French and English noncitizens. I think this point has been made by other groups, notably Positive Action, a French person from France who would have his child educated in French in Ontario would not be eligible under Section 23 until he became a citizen. Section 23 discriminates against native peoples. First language learned Inuit wants to go to a French school in B.C. or an English school in Quebec; impossible.
It discriminates against majorities. You see, it is very strange that the constitution says nothing about the rights of majorities with respect to the language of education. Do we really want to deny access to a French school of an English person who may want French for their child for a good reason, because it is one of the best ways of learning the other language.
Section 23 would also create a very strange situation in a province like New Brunswick. Who is the majority in New Brunswick? You could have a majority French legislature, a majority English population- let us face it, it is getting close to a 50-50 kind of situation and it may gel closer as the years go by. How would you deal with Section 23 in New Brunswick?
Section 23 also discriminates against non-French and non- English citizens. What rights do they have? l am talking about citizens now, not the precitizen era. Let us look at Italian parents who may have taught their child Italian first at home even though the family has been here for generations. At home the parents speak English and French and it would be possible that they want to send their child to French school in Toronto for elementary education and to an English secondary school so that the child would be well-versed in the three languages. It makes educational sense but would it be allowed under Section 23?
Let us look at a Greek immigrant in Quebec who has been in Montreal for 20 years, educated in English, a parent, and therefore under Bill 101 the child has access to English schools if they so choose. However, under Section 23 they would not because they taught the child Greek as the first language, so in that sense, for that kind of a parent, Section 23 would be even more restrictive than Bill 101 in Quebec.
What about bilingual schools? Where do they fit? You see, so much of this restrictive legislation is based on the assumption that education is either English or French, but I can tell you that there are all kinds of combinations that are being invented all over this country. What about bilingual schools, are they English or are they French? Who has access to them under Section 23?
Now, let us look at the criteria. First language learned and still understood. How will this be determined, by language tests? We have been through that in Quebec. Bill 22 required language tests, Bill 22 was the single issue that brought the Liberal government down in 1976. Parent declaration, that is the other way of doing it. Well, we are going through that right now under Bill 101. Hundreds of children who have been issued eligibility certificates under Bill 101 based on parent declaration are now having their certificates withdrawn two and three years later because the government has seen fit to investigate the parents’ declaration and has made trips to China, to India, to Germany, to check the parents’ word out. Is that the kind of thing we want spread across Canada? Is that the kind of insult to parents that we want to spread across Canada? I think not.
Our conclusion about Section 23, Mr. Chairman, is that it is totally inadequate and, at very best, it is naive. It does not respond to the legitimate aspirations of Canadian parents for any of the purposes that Canadian parents might wish to choose a minority language education for their children. I have asked myself why was Section 23 conceived the way it is? Was it to find an expedient compromise between Bill 101 so it would not mix up Quebec too much and throw a kind of something out and appear to be going in the right direction in the other provinces? l think there is a tendency for some who do not really think about it and perhaps are not aware of the havoc that Bill 101 is causing amongst parents and their children, I think that there is a tendency for some to let it go and say: well, at least it tries and half a loaf is better than none. It would be our opinion, Mr. Chairman, that Section 23 would be an insult to parents and it would create havoc across this country and it will cause much a backlash that we would end up even worse off than having no constitutional provisions at all for access to minority language education.
We find that there is only one logical conclusion as to what kind of access should be guaranteed in the constitution, and it is our conviction that the only logical way in which parents’ legitimate educational, cultural aspirations can be served across this country is to assure that all parents have the choice of schooling for their children in either of the two officials languages. What the constitution should be doing is to guarantee access to all residents to public schooling in either official language. Obviously that places a corresponding obligation on the provinces to establish English and French educational institutions and any other combination thereof for those that request it and that should be put in the constitution, too.
We have asked ourselves that if Section 25 were passed what obligation does that place on the provinces to fulfill and to assure access of those parents to minority language educa-
tion? That is something perhaps you can answer for us. so I think that the goal that we have suggested must be established and is the only acceptable solution in a country that claims it }las two official languages, and we would like to make a further recommendation, and that is that every child across Canada should be given the opportunity to learn the other official language, whether it be French of English. We feel it is essential for both the personal well being and the national well being that this be done. We also encourage the teaching of other languages and this initiative will do much to retain and nourrish the many cultures that are presently part of the Canadian mosaic.
Now, in a minute, Mr. Patterson will add something to that in relation to the results for Canada if we do not assure these minority language rights but I shall complete my statement by saying a few words about school boards and then I will give it to Dr. Patterson.
I want to say something about school boards. Fifteen years ago or even ten years ago I would not have brought such a thing to this forum as the need to put something in the constitution about school board financing which assures their very right to exist.
Our point has been raised because in Quebec Province local social institutions, such a democratically elected school boards, are in severe jeopardy. We believe, just as schools are an extension of parents and their wishes, so, too, school boards are democratic expressions of a community charged with education of a community’s children.
School boards are fundamental structures in our democratic social organization. They are local governments which must, therefore, have the means and the power to be accountable to their constituents. They are not local arms of provincial governments which choose to use schools and children as tools of the state, which is what is happening in Quebec.
Certain fundamental principles must be recognized in the constitution which will guarantee that school boards have the power and the means to carry out their responsibility on behalf of the electorate. School boards must have guaranteed financial means to carry out their responsibility for every student in their jurisdiction; and this guarantee must apply to all public school boards.
School boards must also be able to determine the level of financing so that they can determine the nature and quality of the services for which they are responsible for providing their community. This principle flows from the need for local autonomy, which is an essential condition of local political responsibility.
The importance of fiscal responsibility to the assurance of political of accountability of any particular level of government, is essential in our democratic society. What is good for the federal government, the provincial government and the local governments, is all the same; fiscal responsibility; you have to have the means and the power in order to be account- able to your particular electorate.
So, what we are suggesting, Mr. Chairman, is that by constitutional provision, provincial governments should be required to provide grants sufficient to deliver a good basic quality education for all students.
Mr. Patterson is going lo add something about the federal role with respect to the financing of education.
The second constitutional provision we are recommending is that school boards must be assured an autonomous source of financing, direct access to levy property taxes. We have made a very thorough study of the most suitable kinds of tall for school boards-and it may not be perfect; but the most stable and suitable form of tax is still the property tax. In Quebec we are fast losing our right to tax, and this is why we are bringing this to your attention today.
Direct access to levy property tax must be guaranteed to allow boards to provide for special local priorities, not financed, either in amount or in kind by provincial government grants. Without this power, local autonomy is critically weakened and hence local accountability is severely reduced.
So, in summary, Mr. Chairman, what I have said to you is this. We want parents to have the kind of education they want for their children. We want to assure the existence of the democratic structures which have the means to be truly accountable to respond to these wishes. Both the access to choices and the assurance of structures with the power to deliver must be guaranteed in our Canadian constitution. Thank you.
The Joint Chairman (Mr. Joyal): Thank you. I would now like to invite Mr. Patterson to speak.
Mr. L. P. Patterson (Chairman, Constitution Committee, Protestant School Board of Greater Montreal): Monsieur le president, Mr. Chairman, I think this is a second or third time that I have had the privilege of appearing before Monsieur Tremblay. I have very happy memories of him as the Deputy Minister of Education of the Province of Quebec; I am sure his wisdom and experience will be of great benefit to this Committee as well.
Ms. Dougherty has said-and I would like to reiterate- that in our opinion, Canada has two choices: either you have a concept of a great nation with two majority cultures, with equality for all, working together, or you refuse to accept the fact that there are two peoples, cultures, languages, distinct but equal. This means the dissolution of Canada.
I want to say that this transcends political considerations, because, ladies and gentlemen, you are now dealing with the constitution for the next century, and that goes beyond politics.
But I want to speak particularly about the role of minorities. We, as English people in the province of Quebec, are disturbed about this and I think with good reason. Ms. Dougherty has said our enrolment in our Protestant schools in Montreal has dropped from 64,500 to an estimated amount of 25,000. She did not mention the fact that when our young people grow up they would be leaving Quebec when they are looking for a job. That means that the future is dark.
I want to point out that in the Civil Service of Quebec approximately one per cent of those are anglophone. When you consider that approximately 18 per cent of Quebec is anglophone, there seems to be a very sad discrepancy somewhere.
I want to talk about the role of minorities. I think there are at least three roles that they play. One is the communication between the various races. 1f you do not have any French in British Columbia, and if you do not have any English in Quebec, you are not going to get very much communication between the two of us. I think they tend to develop an understanding between the two majority groups. I think they learn to appreciate one another’s virtues.
I may say that I am a Nova Scotian by birth, and a New Brunswicker by education, and an Albertan by teaching, and a Quebecois for the last 50 years. So I have some appreciation of that, I think.
If minorities lose their schools and their school boards, then they lose their language and culture; they will be assimilated- and that is our problem. If you have assimilation of minorities across Canada, I think it is undeniable that you are soon going to have two or three divisions. You are going to have the Atlantic Provinces; you are going to have Quebec; and possibly part of New Brunswick; and you are going to have Ontario and the West. That means the dissolution of this nation, which we do not want, and you do not want. This will not happen overnight, but it will happen over the course of years. Therefore, we want you to guarantee that there are such things as minority schools, and minority school boards in all the provinces of Canada.
That is a very brief statement, gentlemen; but l hope it has some depth.
Now, I want to talk next about equality of opportunity, educational opportunity; that is our field-education. I think it can be demonstrated that there is a serious disparity among the provinces in per capita income. Even if some of our provinces put all of their income into education, it still would not match the sum that some of our provinces can put into that field.
The federal purse is our only common source of income; therefore, we call upon it to equalize educational opportunity across Canada. I might say that we have equalization grants in other fields; so why not education?
We need education in this country, because in our computer age we need higher and higher standards of education. We are a small country in terms of the size of population, and small countries live by their wits, and the development and extension of your ability is through education.
We stoutly defend the right of provinces in the field of education; therefore, we have presented an objective plan, which you will find on page 4, No. 1 with an illustration in Appendix “B”, if it appears too esoteric or philosophical there is an illustration in Appendix B as to how this will work. I will not go into it, but if you have any questions to ask I will be very pleased to answer them.
The third point I would like to talk about very briefly is minority educational subsidy. iNow, this federal government has spent hundreds of millions of dollars, which we subscribe to 100 per cent, in regard to minority education, but I want to point out that we are probably the largest minority school board in Canada and we have not received one cent directly in this field.
The federal government estimates the extra cost of minority education at approximately nine per cent. We want some of that money. But at the same time we want strict accountability. We want the federal government to assure themselves that the money which is given to school boards or given to educational authorities to benefit minority education is actually spent on that area.
I have presented very briefly some thoughts in regard to three items of our brief. 1f you have any questions I will be very happy to try and answer them. If I cannot, then Ms. Dougherty and Mr. Fox will be very glad to do so.
The Joint Chairman (Mr. Joyal): Thank you very much Mr. Patterson.
Before I ask members to participate in our discussions, I would like to ask if the representatives of the New Brunswick Human Rights Commission are with us in the audience because of the foggy conditions around Ottawa. I understand they are here.
I would like now to recognize the honourable Bryce Mackascy. I understand Mr. Mackasey will speak on the Liberal side and I will recognize him, though I am not setting a precedent; it is a matter of courtesy, Mr. Mackasey being a past member of the great people of Montreal, and who has had an opportunity to discuss on many occasions the very question that we are debating tonight.
The honourable Bryce Mackasey.
Mr. Mackasey: Thank you, Mr. Chairman, I have to start on a point of order-and this includes the Chairman, l am not a past resident of Montreal. I still am a member of the community of Montreal. I am a Canadian who has three different residences, one in Montreal, one in Ottawa and the other in the beautiful riding of Lincoln, which is not unique in parliamentary and federal circles. I have a daughter who is still in the school system of the Province of Quebec. I would not want Ms. Dougherty to have the impression that I have long lost my love for Montreal or that I am no longer resident there. She whispers that she knows it; and I think we met at St. Mary’s ball a week ago Friday. I say her but she did not see me, Mr. Chairman.
Senator Tremblay: That is understandable.
Mr. Mackasey: I accept what Senator Tremblay said. It is good to hear from him.
Ms. Dougherty, perhaps through the Chairman I can make note of Bill 101. I am not going to wax eloquent on Bill 101. I have done so many times. I think it is an insidious piece of legislation. I do not for one moment question the philosophy behind it. The cultural preservation of the French-speaking community of Quebec is desirable, and long overdue. I believe
that their cultural preservation was ensured when the language of work mandatorily became French rather than the educational system; and I am optimistic, knowing French-speaking people in Quebec, and knowing that they as a majority are denied their freedom of choice under Bill 101. I hope that when that is fully understood and appreciated that the children of the majority of Quebec are suffering a handicap by their inability to take advantage of the two educational systems to provide themselves with two languages— and it can be said quite properly that the more languages you have the better educated you are likely to be and the easier it is for you to work.
But what concerns me a little in your statistics— and I would rather hear it from you than from me-is the dramatic drop in enrolment which you have anticipated for 1985. Can you relate that in any way to higher education, higher institutions of learning such as McGill, for instance. What impact would this have on the future of McGill?
Ms. Dougherty: Well, I happen to be on the Board of Directors of McGill. It has not yet hit McGill. The dramatic effect of Bill 101 and the indirect effects of moving away and so on, young people moving out—in other words, the young people who are the future parents of children in the future are leaving; the dramatic effect shows in our elementary population at this point. This is where most of the children come into the system and are hit with Bill 101.
McGill has not really been hit yet. Our high schools will only be hit in the next three or four years and then, of course, it takes quite a few years to show it.
I think McGill is going to be showing in the next six or seven years’ time, the same kind of effect.
Now, it so happens that there are more and more French students at McGill who are softening the effect. There is no question that the loss of population from the English community is showing itself first in our elementary population, and unless there is something which dramatically turns it around, it is inevitable that the English population of Montreal is going to diminish severely.
Mr. Mackasey: The other evening, Ms. Dougherty, the Franco-Manitobans, in a very eloquent plea for recognition of their plight and battle and fight for cultural preservation and survival, came in with a well reasoned brief. One feature of the brief, which surprised me a little, was their request for freedom of choice for new Canadians arriving in Manitoba.
I think this was probably the first minority group outside of Quebec who has made that case. Have you had an opportunity to study their brief?
Ms. Dougherty: No.
Mr. Mackasey: But they did not see the extension of it to the Province of Quebec. If I could be the devil’s advocate for a moment, I share your views about Section 23, that nothing less than freedom of choice presents some criterion for those who are entitled to freedom of choice and those who arc not, to escape the best minds of previous governments—all kinds of problems with Bill 22.
Nevertheless, in the back of your brief, one of your commissioners, Maximilian Polak—and I want to congratulate you for attaching the minority view to your brief. I think your brief fairly well sums up the argument. No doubt it may have been made in the inner circle, but 1 am not aware of what went on in there. But I would imagine that he has reflected some of the concerns which may have been felt by some of the drafters of this Charter of Human Rights, Section 23; Section 23, particularly, in trying to determine what is politically realistic at the time rather than what is utopian, desirable or necessary. Would you like to comment further on that?
Ms. Dougherty: Yes. We do not think that a constitution should be based on political expediency. We think that a constitution should represent and embody the values that the citizens care about for all time, or at least forseeable future.
The whole question of freedom of choice, that is really what we are talking about, unlimited access for parents to make their choice for their own reasons. We feel, as you mentioned yourself, that as far as Quebec is concerned the drive to cultural preservation was evident and positive as of at least ten years ago. It was happening, it had very positive results, and as the Gendron Commission suggested and as you yourself suggested the real incentive is the language of work in the world of work. We all know, everybody knows, that one has to speak and understand French to work in the Province of Quebec. If you do not see that, then you are blind.
That is accepted, that is grand, and parents know it so well that whether Bill 101 requires them to go into French education there are thousands of English Quebeckers who have access to English education who are choosing French education because they know it is good for their children. So the cultural preservation came about through other forces and can come about through other forces rather than restricting opportunities for children, which go beyond cultural preservation.
If we are going to talk numbers part of Bill 101 was to deal with what was thought to be an imbalance of proportions of anglophones and francophones. There has been recently what appears to be a very valid piece of research by a researcher at the l’Universite de Montreal which shows that even if free access to whatever education was immediately made available in Quebec that this danger of imbalance that was feared would simply not come about. The exodus from Quebec has happened and the significant thing about the exodus is not the absolute numbers, it is the young people that form a huge proportion of it who are gone, and there will be no more English children eligible for English education, or a very, very, very small group.
So I think that the few thousand immigrants that are being forced into French education by Bill 101 represent nothing. I think we were talking about this this evening and Mr. Patterson said, and I think he is right, he characterized it as we killed a mosquito with a sledge hammer. That is what Bill 101 represents in relation to the effect on the immigrants’ children.
Mr. Mackasey: Could I ask you a question, Ms. Dougherty, through you, Mr. Chairman, certainly you and I agree that Bill 101 was overkill in retrospect, and I am aware of the document you referred to which was published fairly recently,
some concern that possibly the threat to the minorities is not really there. The fact, nevertheless, is the majority of Quebeckers seem to feel that they need Bill 101. Do you think in the light of that that we have to presume sincere feeling on the part of the population? After all they can throw the government out and may, I hope, do, but nevertheless the federal government is in the position of forcing freedom of choice on a province, and I am thinking now of Quebec, despite what appears to be the wishes of the majority. Certainly in our delicate federal system this would be considered as hardly desirable by five million people.
Ms. Dougherty: I have one comment on that. I think that we arc going to see a gradual loosening of the restrictions of Bill 101. I think if a new government gets in in Quebec, one of the very first things that will happen is that access to other English Canadians will be provided for English education, because this restriction has a very, very serious economic effect and we have to turn the economy of Quebec around. So that is going to happen.
I also think that we already are hearing louder and louder noises from the French majority demanding, for instance, English immersion in the example that I gave, demanding and not willing to have their range of activity and personal expansion limited. I think that is going to happen.
I think that there is more and more demand also just for strong second language teaching for everybody in the majority of schools.
So I see it only a matter of time before in effect this open access to whatever schools will be restored. I do not know legally whether it is possible, but perhaps as a constitutional provision one can establish a goal with a sort of a critical path to get there because I think that a constitution, if it does anything, has to establish national goals.
Mr. Mackasey: Could I stop you for a minute, Ms. Dougherty, because I know my time is running out.
The Joint Chairman (Mr. Joyal): I am sorry, really, you have had more time than you are allowed.
Mr. Mackasey: I just wanted to ask the witness if the critical path would include Section 133 for Ontario and New Brunswick? Your critical path leading to freedom of choice, in other words, the time frame, would you think it desirable to couple that with a similar provision to extend speaking of the other languages in the courts and the legislatures of Ontario and New Brunswick?
Ms. Dougherty: I think so. It is obvious we cannot do things overnight but if we can state some goals and time frames and incentives and encouragement and say this is where we want to go, then maybe gradually everybody will get on the bandwag- on. Possibly that is the way we should attack the problem.
Mr. Mackasey: Thank you very much.
The Joint Chairman (Mr. Joyal): Merci beaucoup, monsieur Mackasey. Mr. Nystrom followed by Mr. Tremblay.
Mr. Nystrom: Thank you very much. I first of all want to thank the Protestant School Board of Greater Montreal for
appearing here and I would like to ask Ms. Dougherty a few questions.
First of all I believe if l heard her correctly she said that the constitution should embody ideas that the citizens of Canada care about, and I want to pick up the line of questioning that was started by Mr. Mackasey when he said, and I think I heard him correctly too, that he believed the majority of Quebeckers seem to feel that Bill 101 is necessary.
I remember having a chat with a provincial liberal critic in Quebec City on the constitution and he told me that Bill 101 was a very popular piece of legislation in Quebec and if anything the Parti Quebecois could have gone even further and still remained popular. I have also seen public opinion polls that show over 80 percent of Quebecois think that Bill 101 is a popular piece of legislation.
I also remember the strife under the Bourassa government for the language tests in Bill 22. With that kind of evidence how can you argue to us that we should be enshrining in our constitution freedom of choice when it is so obvious that the majority of Quebecois think that Bill 101 is the type of legislation that goes in the right direction.
You can also look al Western Canada. How can you argue with the evidence we have in Western Canada towards the country as a whole that freedom of choice would be the wishes of the majority of people in the west.
Ms. Dougherty: First of all let us deal with Bill 101 in Quebec.
Our recommendations relate only to education. Bill 101 deals with all kinds of other things. l have not talked about that. Never did we say that some of the provisions in Bill 101 were not legitimate and needed.
Now those that relate to the francisization of work in the marketplace make a lot of sense and what we are saying is that those are sufficient for cultural preservation and francisization of Quebec and so on and that the educational provisions are unnecessary.
I think that the Parti Quebecois educational provisions, and I have made this point before, were overkill. They were based on a set of statistics that were out of date and we all know that the educational provisions were specifically focused on the City of Montreal, which was the only place where educational provisions mattered and that they were aimed at correcting what was perceived and what was justified by a set of out-dated statistics as necessary.
I think that we now know better and, as I mentioned, what is happening is, and I think l am right, that if we were to lift the educational restrictions tomorrow we would not anticipate any great influx of population into our schools. l think that what is in motion is in motion and what is happening is there are going to be fewer and fewer and fewer people who choose English education for any reason, whether it is by law or whatever. They are wanting to learn French and the best way to learn French is to go to a French School.
So I am convinced that the educational provisions, and we even hear murmurings out of Quebec that this is so, are really
no longer necessary; and it is my prediction that they are going to be relaxed inch by inch and within 10 years they will not be there—10 years is a long time, maybe five years.
Mr. Nystrom: You refer to overkill. Enshrining freedom or choice in the constitution, no matter what one may think about it in principle, is drastic interference in what is now a provincial right, or something that comes under provincial jurisdiction. As one of your own commissioners, Mr. Polak, says in the brief, and I quote
I am also against the recommendation in the report granting an important and substantive federal role in education.
He goes on to say that the presentation
will be interpreted as an attempt to turn back the clock and reopen the bitter linguistic divisions of the past.
If you enshrine freedom of choice in the constitution it therefore becomes a law and a constitutional legal right. Are you not reopening a lot of the divisions? Are you not then advocating to us shelling a peanut with a sledgehammer and exercising some overkill ourselves.
Ms. Dougherty: No, we do not think so.
I think we have to decide whether we are going to be a bilingual country or not. Are we going to have the guts to be a bilingual country or not? Are we going to have the guts to respond to legitimate parent wishes or not? Are we going to play political games?
We know, and we found out much to our surprise that even for 150 years we had been managing our schools and we thought that to manage the schools and hire the staff and deliver education, that inherent in that was to decide the language, but we found out that we really did not have any language rights at alJ. Therefore we were at the mercy of provincial governments.
Now, it has not been taken away, but is education, and the language of education and the choices of parents not sufficiently important as a national value to say something in our constitution about it, or are we going to leave it to province by province by province to do as they please from year to year to year and end up possibly in the kind of situation Mr. Patterson described which is going to break this country up.
I am convinced that there is nothing more fundamental which will hang this country together than language learning and communication with people of the other language. That is one of the most fundamental values that we have to have the guts to express and to make effective in this country. Other- wise we will not have a country.
Mr. Nystrom: I would like to refer to page 5 of your recommendations, if I have more time, Mr. Chairman, where you are talking about the tremendous federal input in the field of education and I know and appreciate that you have some personal interests in provincial politics yourself . . .
Ms. Dougherty: That is right.
Mr. Nystrom: In the upcoming election in Quebec as a candidate, but I wonder whether .or not you have any concern as lo whether or not we should have the right as federal parliamentarians to unilaterally interfere so radically in the provincial field, because what you are asking us to do here is to take away considerable power from the provincial governments in the field of education; you are also asking us to bring in legislation which would give the federal government the right and responsibility to disallow some provincial law. You are also asking us, for example, lo enshrine in the constitution that each child in this country will have the opportunity to learn the other official language.
I am really concerned with how laudable those objectives may be in terms of linguistic principles, they may be very, very laudable in terms of learning the other language.
It is very important to speak two languages in the country where there are two officials languages. [TEXT] I am just asking you in terms of federal and provincial relations in this country, are you not asking us to do something which could be very, very sensitive which instead of putting this country together and unifying the country could perhaps lead to tearing it apart.
Ms. Dougherty: Mr. Chairman, I have a book here published in 1976, and it is called Federal Intervention in public Education published by the Canadian Education Association. Maybe everybody does not realize, but the federal government is into education with both feet at all levels, elementary, secondary, university, adult education, manpower, you name it, bilingualism, bilingual students across this country, student exchanges, monitors in our schools, if anybody wants to read it, if they have not seen it. So I cannot buy this myth that the federal government must pussyfoot with the provinces about education.
Education is the biggest social force for the development of our human resources and if the federal government does not have a role in supporting the best possible development of human resources in this country then I do not know why we have a federal government. So I just can not buy it.
Mr. Nystrom: You are also saying here in your brief that
We have recommended important roles in education for the federal government which include studies in French, English, and Canadian Citizenship.
What do you mean by that? How do you enshrine that in the constitution that we have studies in French, English and Canadian Citizenship?
Ms. Dougherty: Where are you?
Mr. Nystrom: That is on page five of the brief, under Section C, the Provincial Role.
Ms. Dougherty: Yes.
There is much concern and we attend many national school board conferences. There is much concern amongst school
people in this country about the dearth of curriculum content which fosters pride in Canada and being a Canadian.
I think it is a legitimate concern and we think that perhaps at the council of education ministers level, and I am sure that this is not a new idea to them. they have thought about it already, being prodded by the national Canadian educational organizations, that is a concern and a priority and perhaps federal initiative at this level in consultation with the provinces could be made which would be very, very important towards the whole need to foster greater unity and understanding of this country.
One of the things that has been talked about for years is Canadian history. You would not believe the kinds of perspectives that one gets, depending on where one comes from in this country, about history. I am not saying we should have one Canadian history, there is no such thing, because every time somebody writes a book it comes out in a different way; but I think that there are common values and common historical heritage and so on in this country that many of our children learn nothing about. We think that the federal government could play a role, not necessarily built into the constitution, but I think that the federal government could play a role. We did not mention this tonight because we were trying to stick to the points that were most pertinent to the resolutions that are before this Committee. As I mentioned, this brief was written before all this, so we did not know what you people were going to come up with.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. [TRANSLATION] Senator Tremblay.
Senator Tremblay: Mr. Chairman, lady and gentlemen, so many points have been raised in the last hour that we would need a whole day to comment appropriately, however we have to restrict ourselves to a few questions.
I would like to hear how you can suggest that the drop in enrolments in the Protestant School Board of Greater Montreal is attributable to Bill 101.
You linked Bill 101 with the statistics in such a way that it seems to be the most important, if not sole, reason for the declining enrolment. In my opinion there are other factors involved. You must have analyzed other factors as well; l would like you to explain this to the Committee to clear up any ambiguities.
Ms. Dougherty: Fine. l did not mention that we have another brief on this subject. One month ago we published a brief entitled, “the impact of the charter of the french language on french-language education and the inherent injustices of the bill.”
We make the point in this paper that declining enrolment is not due solely to Bill 101. It is one of the factors that come into play. Mr. Fox could perhaps give you more details, because there is also the declining birth rate, which is an
obvious factor in school boards across Canada, but there is also the fact that young people are leaving Montreal.
The number of students in our English schools have dropped because of Bill 101, but on the other hand, the number of students in our French schools is increasing daily.
Perhaps you could add something, Mr. Fox.
Mr. Marcel Fox (Director General, Protestant School Board of Greater Montreal): In this regard, I would like to emphasize that the number of English students is dropping, the number of French students under the Protestant School Board of Greater Montreal is increasing.
This is to be expected because many students who had access to our schools before Bill 101, no longer have access to our English schools. This applies particularly at the elementary level, which we now call the primary level, hence there are many primary students who cannot attend English schools. The English sector of our school board is therefore reduced as a result. On the other hand, however, the French sector is larger, and this is a good thing.
Naturally, we have no objection to this; if it is a very good thing. However, we do see a reduction in education in English because of the bill.
Senator Tremblay: A process of sociological evolution is at work, whereby Protestants are no longer necessarily anglo- phone, they may be francophone. To some extent this corrects a historical situation that I personally discovered during the inquiry conducted by Judge Tremblay, namely that francophone Protestants had no French schools at the time. This did not come until later, even though there had been Protestant francophone immigrants for more than a century and a half.
Mr. Fox: Yes, but there were not enough of them at the time to warrant opening schools. I would like to stress however that the Protestant School Board of Greater Montreal has had a French sector for approximately 25 years, and that at one time it consisted of four elementary schools and one secondary school.
Senator Tremblay: Yes, precisely because of Judge Tremblay’s report.
l would like further clarification about the effects of freedom of choice with regard to immigrants. I believe Mrs. Dougherty said earlier that since French is increasingly becoming the normal language of work in Quebec, it could be that immigrants would spontaneously choose French, even though Bill 101 forces them to do so at the present time.
Ms. Dougherty: This applies not only to immigrants, but also to anglophones.
Senator Tremblay: To anglophones as well. Bill 101 is therefore not so prejudicial, because the same result would be
obtained if there were freedom of choice. There are two ways of looking al the situation.
Mr. Fox: Yes, but the bill is definitely prejudicial in the case of children from other Canadian provinces who come to Quebec…
Senator Tremblay: I agree with you entirely on that. You are talking about the Quebec clause and I agree that it should be eliminated. I agree completely.
Mr. Fox: We made no mention in our brief of the harmful effects of Bill 101, we said nothing against Bill 101, we may criticize the regulations, which often interpret the bill much more radically than the bill itself implies.
Senator Tremblay: That is quite possible.
Mr. Fox: That is one point. It should be noted that we in the English sector began teaching intensive French even at the kindergarten level even before Bill 101 was imposed.
In other words, efforts were being made to adapt to the French fact in Quebec before it was felt necessary to do so. You know yourself that when something is imposed, there is always a reaction of resistance. This is unfortunate in my opinion.
Senator Tremblay: I have one final question regarding Doctor Patterson’s comments on the federal financing formula. An example is given in Appendix B to illustrate the preceding material. I did not understand the basis of the system. From your example, you seem to be suggesting a national standard that would be a percentage of the gross provincial product to be earmarked for education. While it may not be the rule, in your example, you use 25 per cent of the gross national product as the amount to be appropriated for education.
Perhaps you define gross provincial product in some differ- ent way, but if you are using the normal definition of the gross provincial product, 25 per cent seems very high to me. Do you really intend to channel that much of the gross national product into education?
Mr. Patterson: I am sorry that I cannot answer your question in your mother tongue, Mr. Tremblay. I apologize.
Senator Tremblay: I have used my own language, so you use your own.
Mr. Patterson: The illustration was really a mathematical exercise and the figures were designed without any reference to reality, shall we say, except to illustrate, and I do not know whether 25 per cent is a reasonable figure. All I am saying is that the Council of Ministers in collaboration with the federal government would establish one.
In regard to gross provincial product, we were assuming there is such a thing. There is a Gross National Product, we hear a great deal about it, and I presume there is a gross
provincial product in the same sense and if there is not, then perhaps it is time we established a similar basis; let us not get lost in the detail. The fundamental thing is that there is a disparity across Canada and we want to equalize it in terms of education as far as possible.
Senator Tremblay: And I would like to see more clearly how you equalize with your system. My assumption is that it will favour the wealthiest provinces rather than the poorest ones, a straight 25 per cent or 10 per cent. There is no equalization there, as I understand it.
Mr. Patterson: If the wealthy province is above this 25 per cent that we use, they do not get a cent. It is only the people who are below this 25 per cent that we are talking about that would get any money at all.
Senator Tremblay: Twenty-five per cent on $1000 per capita is not the same as 25 per cent of $5000 per capita?
Mr. Patterson: You are quite right, and that is the reason why we ask the Council of Ministers and the federal government to get together and . . .
Senator Tremblay: To introduce equalization there?
Mr. Patterson: Exactly.
Senator Tremblay: And if you do that for education, why not include that equalization in an over all formula for equalization?
Mr. Patterson: Well, we have all kinds of equalization in Canada …
Senator Tremblay: There is only one kind, a general formula?
Mr. Patterson: Yes, but if you do it in a general formula, what we are afraid of is that these moneys will not go into education.
Mr. Mackasey: Anything?
Mr. Patterson: Yes, anything. Sewers, you name it, but education is what we are interested in and what we are fighting for.
Senator Tremblay: Thank you.
The Joint Chairman (Mr. Joyal): Thank you very much, Senator Tremblay. [TEXT] I see the clock and we have gone over the agreed time by half an hour but I am quite sure all the honourable members around this table were most eager to hear from these witnesses that we have had the privilege to hear from tonight and so I would like to thank Ms. Joan Dougherty and Mr. Patterson and Mr. Marcel Fox and thank them very much for coming to see us tonight and entertaining this discussion. And I would like to call the representatives of the New Brunswick Human Rights Commission. I understand that they had quite a long way to come and that the conditions of their trip were very difficult and they are on time and 1am quite sure that we are anxious to hear from them.
Ms. Dougherty: Thank you very much, Mr. Chairman.
The Joint Chairman (Senator Hays): The New Brunswick Human Rights Commission will be represented tonight by Mr. Noel Kinsella, Chairman; Francis Young, their Legal Counsel;
and Mr. John Humphrey, President of the Canadian Human Rights Foundation, and Sandra Lovelace of the Tobique Indian Reservation in New Brunswick. We welcome them here tonight.
Who will be making the opening? Mr. Kinsella. Thank you very much, Mr. Kinsella, you may proceed.
Mr. N. A. Kinsella (Chairman, New Brunswick Human Rights Commission): Mr. Chairman, monsieur le president, the New Brunswick Human Rights Commission welcomes this opportunity that has been afforded to us to appear before you and share some of our views concerning aspects of the resolution before you. With me this evening on my right is Professor John P. Humphrey and on my left, Mr. Francis Young, who, with your permission. will help make our presentation.
Mr. Chairman, I also wish to inform you that I have been pleased to have accompany us Ms. Sandra Lovelace, a Maliseet woman whose loss of native rights we have been struggling to rectify and Ms. Lovelace is here. Ms. Lovelace is joined by Caroline Enis, a leader from New Brunswick in the movement seeking Indian rights for Indian women.
M. le president, the Province of New Brunswick became the second jurisdiction in Canada to establish a Human Rights Commission and it has been my privilege to have been the chief Commissioner of that provincial statutory antidiscrimination agency since its inception. Our intervention, therefore, is guided by our practical human rights experience in the field or al the grass roots, as the saying goes.
It is of course in the provinces and at the local level where human rights are most vital. Indeed, this was the very idea that Mrs. Eleanor Roosevelt spoke of when referring to the United Nations’ 1948 Universal Declaration of Human Rights when she said that: human rights only have meaning if they are enjoyed at the street level and in the neighbourhood.
Mr. Chairman, we were directly involved in the consultation that led to the ratification by Canada of the Human Rights Covenants of the United Nations and we would like to share with the Committee some of the facts surrounding this ratification.
As you are aware, in 1966 three separate Human Rights instruments were open for ratification: the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; and the Optional Protocol to the International Covenant on Civil and Political Rights.
For a period of about 10 years many of the provincial Human Rights Commissioners, for as you know there was no federal Human Rights Commissioner until 1977, worked very hard to secure the support of our respective provincial governments and the federal government that Canada should ratify the covenants. The instruments of ratification, as you know, were deposited in the spring of 1976 and took effect in August of 1976. During the many federal-provincial meetings, whether on the question of ratification itself, the question of declaration under Article 40 of the Civil and Political Rights Covenant, as well as the meetings that we have been holding on
matters dealing with compliance, we have profiled immensely from the expertise of Professor John Humphrey. This distinguished son of New Brunswick is the Canadian authority on the Covenants, for as you know he served for 20 years as the Director of the United Nations’ Human Rights Division and currently is the President of the Canadian Human Rights Foundation. It is, therefore, I think important that he be with us tonight, especially so since the Covenants serve as the backdrop to the brief that we have circulated.
Mr. Chairman, one of the very first points I would like to make in this oral presentation is that the decision to have Canada ratify the Covenants was taken after we had achieved the unanimous consent of the 11 jurisdictions in this country. I was very pleased that on September 10 last our own Premier reminded his colleagues of this consent lo a human rights standard that had already been achieved and acted upon. Therefore, given that consent to a written standard of human rights as is found in the Covenants, we had expected that a bill of rights for entrenchment in the Canadian constitution could have easily been achieved. Well, that expectation, unfortunately, was not to be realized and here we are tonight.
We are, however, able to take a great deal of encouragement, Mr. Chairman, from the fact that Parliament has been referred to the International Covenants on Human Rights, not only by the explanatory notes which have accompanied the resolution before you, but also by several of the briefs that have been submitted to this Committee. I would, Mr. Chair- man, with your permission like to invite Professor Humphrey to outline for the Committee the significance of these Covenants.
The Joint Chairman (Senator Hays): Professor Humphrey.
Mr. J. P. Humphrey (President, Canadian Human Rights Foundation): Thank you, Mr. Chairman.
With your permission, sir, I wish to direct my remarks to a question which has hardly been mentioned in this enquiry, namely Canada’s international obligations in the matter of human rights. Canada is, as Mr. Kinsella has just told you, a party to, amongst other international conventions, the United Nations Covenant on Civil and Political Rights. By this Covenant Canada undertakes to respect and to ensure the rights set forth in it without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, property, birth or other status.
You will note, sir, that the obligation is to respect and to ensure, and that the list of prohibited grounds of discrimination is open ended, and in particular that it includes several prohibited grounds of discrimination, including language, political and other opinion, property and birth, which are not mentioned in the proposed Canadian Charter of Rights and Freedoms.
The Covenant stipulates that where not already provided for by the existing law in the country, a contracting party is to take t he necessary steps to adopt such measures as may be necessary to give effect to the Covenant. I would assume, Mr. Chairman, that one of the purposes of the proposed Canadian
Charter of Rights is to help discharge the duties which Canada has assumed under the provisions of this international convention to which we have become a party.
It is important, therefore, that this Committee should examine, with the greatest of care, the language of the proposed charter in the light of the obligations which Canada has assumed under the Covenant and under other international conventions.
We will look very silly indeed as a nation if the great charter of rights that is to be entrenched in the constitution, and which will presumably remain entrenched there for some time, does not even protect those rights which Canada is bound by international law to respect and to ensure, if the proposed charter of human rights does not come up to international standards, which we have recognized and by which we are bound.
I, for one, would not like to hear in some international body-the United Nations, for example-it said that the rights which we have undertaken to respect and to ensure are not respected in Canada or are not protected by the proposed Canadian Bill of Rights; and worse, Mr. Chairman, I would be very upset as a Canadian if at some future time, in some United Nations or other international body, Canada was condemned for not living up to obligations which we had assumed under international law.
Now, the possibility of this happening is not mere fantasy. Canada is at this very time, as you certainly know, in the position of a defendant before the United Nations Human Rights Committee in the Lovelace case. As Mr. Kinsella has said, we have Ms. Lovelace here with us tonight.
Ms. Lovelace is an Indian woman who bas lost her Indian status because she married a white man. After having exhaust- ed all remedies in Canada, she has appealed under the Option- al Protocol to this Covenant on Civil and Political Rights to which we are also a party and her case is now being heard by the United Nations Committee on Human Rights.
Mr. Chairman, I am conscious of the fact that you are pressed for time, and I will therefore confine my remarks to this United Nations Covenant on Civil and Political Rights and to the mechanisms that have been set up under it for its implementation of which there are three.
There is a reporting system; there is a system for dealing with complaints from other governments which are also parties to that Covenant, and under the Optional Protocol, to which I have already referred in saying that we were party, there is provision for the Committee to hear petitions from individuals.
The Covenant provides in Article 40 that the states, Mr. Chairman, who are parties to it shall submit reports on the measures they have adopted which give effect to the rights recognized therein and on the progress made in the enjoyment of those rights. Now, Canada has already made one report under this provision, and it was studied by the United Nations
Human Rights Committee at its ninth session last spring. I do not have the time now to examine the comments made by members of this Committee on the Canadian report; but I think it is worth noting that more than one member has pointed out that the Canadian Bill of Rights—because at that time, of course, in the spring there was no question of a Canadian charter; but the members were referring to the Canadian Bill of Rights; and more than one member had pointed out that the Canadian Bill of Rights fails to prohibit discrimination on the ground of language, political or other opinion and property; nor docs the proposed charter.
The point I would like to emphasize, Mr. Chairman, is a very simple one, namely that any charter of human rights that is entrenched in the Canadian constitution will certainly be criticized by this United Nations Human Rights Committee, and possibly by other United Nations organs because there is provision for cases to go up from the Committee as far as the General Assembly.
Good sense would seem to indicate, therefore, Mr. Chair- man, in these circumstances that before entrenching this charter in the constitution we should make sure that it reflects our international obligations.
Now, by Article 41 of the Covenant, states can at any time recognize the competence of this Human Rights Committee to receive complaints from other states to the effect that these other states are not fulfilling their obligations under the convention. And the Optional Protocol, as I have already indicated, provision is made for the reception of such complaints from individuals and, indeed, a number of such complaints, including the Lovelace complaint, are already before the Committee.
Good sense, again, would seem to dictate that we should use this opportunity when we are discussing the entrenchment of the Charter of Human Rights in the constitution to make sure that everything is done to guarantee that the exercise of the rights and freedoms set forth in the Covenant is guaranteed by Canadian law.
Summing up, Mr. Chairman, my submission is that, before entrenching this charter of rights in the constitution, its provisions should be carefully examined to ensure that they reflect our obligation as a country under international law.
Now, with your permission, Mr. Chairman, l want to add one word by way of illustration of what I mean. I have seen the submission of the Canadian Jewish Congress, which is to the effect that there should be something in the proposed charter relating to times of emergency. I have looked at the proposed section suggested by the Canadian Jewish Congress and, by and large, I believe what they are suggesting should be done. However, I do not think they have gone far enough.
There are certain rights, Mr. Chairman, which should be sacred even in times of emergency. There is no reason why in time of emergency, even an emergency which threatens the life of a nation that people should be, for example, subject to torture. There is no reason why, even in times of emergency,
there should be discrimination on grounds of race, sex, language or religion.
What I cannot understand, Mr. Chairman, is why the drafters of this bill have not used the precedent to which Canada has agreed and which was laid down after years of labour in the United Nations. Now, Article 4 of the Covenant on Civil and Political Rights deals precisely with this question of national emergency. It is so important that I am going to read just a few phrases from it. Mr. Kinsella reminds me that this is reproduced in the appendix to the brief of the New Brunswick Human Rights Commission. I would suggest that before reporting on this bill back lo the House that this Committee might well study this Article very carefully. It says:
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law.
And now l come, Mr. Chairman, to the point which is
and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
You will find substantially the same language in the European convention. But the United Nations Covenant goes on to say that no derogation shall ever be made, even in time of emergency, from the rights enunciated in certain articles, for example.
And I will not take up the time to read them all out, but for example, the right not to be subject to torture: why should not that right be respected even in time of public emergency; the right to life; the right not to be imprisoned for contractual obligation and a number of such rights that should be protected even in time of national emergency.
My plea, Mr. Chairman, is that before finally adopting this charter reference should be made to our international obligations with a view lo ascertaining, to making sure that the new Canadian Charter of Rights and Freedoms respects our international obligations.
Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much. Mr. Kinsella.
Mr. Kinsella: Mr. Chairman, given the reality of Canada’s obligations under the international covenant, we see two options open to Parliament with reference to the resolution before you. Option number one is to redraft the whole thing in the light of the Covenants. But option number two: if the political dynamics of contemporary Canada, or the press of real politique require that the present model be advanced, then we would plead and make a number of specific recommendations which are contained in our written submission. Very quickly, the preamble to Section 3 we support entrenchment
and have made some notations. With reference Section I, we have in our presentation argued that the phrase “generally accepted” be stricken and that the phrase “strictly required” be put in its place. As Professor Humphrey has pointed out, we do not wish to have any limitations solely on the grounds of race, national or ethnic origin, etcetera; and that, again, is in our brief.
We make comments on Section 15 with reference to equality before the law. That is terribly important for us, Mr. Chairman. It is important because that wording, as others have mentioned before this Committee, has to be such that people, like Sandra Lovelace, would not have to seek remedy outside of her own country, but would be able to find justice and equality within Canadian law. She has, as all Canadians have, the right to a domestic remedy against the worst form of discrimination, namely legislative discrimination.
Secondly, we would like also lo see Section 24 amended to protect not only native men but also native women. [TRANSLATION] With your permissions, Mr. Chairman, I will invite my colleague, Mr. Francis Young to conclude our oral presentation by outlining our position on affirmative action.
The Joint Chairman (Mr. Joyal): Mr. Young.
Mr. Francis Young (Legal Advisor, New Brunswick Human Rights Commission): Mr. Chairman, I take great pleasure in having this opportunity to present the Committee with our views on the proposed Charter of Rights in the constitution.
First, I would like to deal with paragraph 15(2). The New Brunswick Human Rights Commission supports this paragraph in principle but proposes that it be amended in order to avoid a possible problem.
It is recognized today that affirmative action programs are essential to the reintegration into Canadian society of disadvantaged minorities who, for many years, have suffered the cumulative effects of discrimination. Programs like this would be precluded under paragraph 15(1) so it is essential that it be maintained in paragraph 15(2).
However, the Commission feels that the scope of paragraph 15(2) is too wide since it authorizes not only affirmative activaction programs provided for by law but also those which are not.
Therefore, our Commission recommends that only programs undertaken in accordance with the law fall under paragraph 15(2). This would avoid …
Mr. Beatty: On a point of order, Mr. Chairman, the translators are having difficulty following events; and I wonder if translation can be restored.
Mr. Young: Mr. Chairman, I will speak more slowly from now on.
The Joint Chairman (Mr. Joyal): I would ask you to speak more slowly because the translators are having difficulty keeping up with you.
Mr. Young: Fine, Mr. Chairman.
This would avoid removing the affirmative action programs from the scope of paragraph 15(2) which is essentially a continuation of paragraph 15(1) or the exaggerated affirmative action programs like those which include “quota” for example. On the other hand, programs which have been entrenched in the law would not lead to abuse as frequently.
I would now like to turn to the question of violation of the charter. The proposed text is grievously lacking. In some cases, citizens cannot take advantage of guaranteed rights while under other provisions, they cannot exercise their rights efficiently.
Section 25 should state that any law, regulation or order in council that is inconsistent with the provisions of this charter is, to the extent of such inconsistency, inoperative and of no force or effect. This would mean that what could not be done directly by a law, could not be done indirectly through a regulation.
It is also essential that Section 25 outlaw activities which violate the provisions of the charter as most of these sections will probably be infringed upon more often by government activities than by anti-constitutional legislation.
Also, a new section should be added to the charter to provide for efficient recourse, like injunctions, statements, inadmissibility of evidence and damages. This recourse is necessary for the application of sections 8 and 9 and of paragraph 11(d) which, because of their special wording, cannot be implemented at all by section 25. Even if this additional recourse were to be added, there would still be no guarantee that anyone could take advantage of it, at least under the sections of the charter which do not affect particular individuals.
For example, an individual would not necessarily always be able to go before the courts if the obligation to publish the House of Commons proceedings in both official languages were not respected.
The charter would have to give all individuals the right to take legal action even if the violation did not affect him or her as an individual.
Also, Section 26 should be struck and the court should be given the discretion of admitting evidence based on the specific circumstances.
The next section dealt with translation problems and not interpretation problems.
So, in conclusion, Mr. Chairman, we suggest that the drafters and the translators compare the french and english versions meticulously in order to ensure that the two texts correspond.
Particularly, it should be pointed out that in Section I, “reasonable limits as originally accepted” has been translated by “réserves normalement acceptées” So, the word “reasonable” has not been translated in French. This omission is critical because Section 1 is one of the most important in the charter and “reasonable” is one of the key words.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Mr. Speyer.
Mr. Speyer: Thank you, Mr. Chairman.
I would like to ask certain questions that pertain to your position concerning entrenchment which l take it you accept, as you stated a little earlier. When you entrench certain rights in a constitution you ascribe a position of primacy to those rights when they are in conflict with other rights such as those that are passed by Parliament or any of the legislatures. My question is: What is a primary right and what is a secondary right? In reviewing the resolutions, and in particular the fundamental freedoms I do not think anybody could disagree that freedom of conscience, freedom of thought, freedom of assembly within a democracy are fundamental rights, but I ask you: have you given any consideration to whether or not the legal rights which are incorporated in Sections 7 through to 14 are fundamental rights?
Dr. Humphrey: Mr. Chairman, I do not want to be facetious but I remember when the universal declaration of human rights was being adopted by the United Nations General Assembly in 1948, that the South African Delegation abstained and they abstained on the grounds that some of the rights enunciated in the declaration were not fundamental. Now, the question was: which were fundamental rights and which were not? Obviously the South Africans were willing to extend certain rights to the inhabitants of South Africa but not others.
That is not an easy question you are putting but I think the United Nations decided the question by saying that all the rights enunciated in the universal declaration of human rights are fundamental rights.
Mr. Speyer: Well, what I am asking and what we have to decide is this: If we are going to give a position of primacy rights that maybe the state does not give us, the positive theory of law, we have to decide what is a fundamental right and what is a right that does not reach those high standards and I guess the question l am asking, it is not an easy one but has to be asked, is: although most people would say they might favour entrenchment of certain rights, they would not of other rights and I want to know whether or not you have considered all the matters which form a charter of rights and whether you have come to the conclusion that those that are included are fundamental rights?
Mr. Kinsella: Mr. Chairman, if one was to examine the some l00 constitutions that have been written since the end of the Second World War one will find that the vast majority of these new constitutions indeed contain a bill of rights therein and they have not had great difficulties in including many of these rights. My field is more with the non-discrimination rights and 1 am prepared lo speak in some detail about them, but on a comparative basis many of the modern constitutions have not have had difficulties with this but what seems to me an impressive argument is the fact that the United Kingdom whose system of parliamentary democracy ours is modelled on, have themselves not had great difficulty and indeed they have embraced and ratified the European Convention on the Protection of Fundamental Rights and Freedoms and have recognized the competence of the European Court. That Convention
indeed, too, contains not only many of the legal rights but also the so-called egalitarian rights.
Mr. Speyer: Let me ask you another question. Having in mind your premise that you believe in entrenchment of certain rights, would you agree that the manner in which this particular resolution has been drafted is so faulty as to rob it of the effectiveness that everybody intends for it?
Mr. Kinsella: I would conclude that the document as we have it before us is a weak document when measured against the standard of the International Covenants that we have ratified, and as I suggested in my remarks ideally I would like to see the whole thing redrafted in the light of experience of other countries, in light of experience that is ours now as a party to the International Covenants, and indeed not only the International Covenant on civil and political rights but also the International Covenant on economic, social and cultural rights because, notwithstanding the implication of a hierarchy of rights in your question, we note that there is no provision for the right of privacy in the present document which is contained in the covenants. There is no provision for the right to work which is found in many modern constitutions of the western libertarian kinds of countries, and I am not speaking of socialist or necessarily third world kinds of countries.
So I, ideally, would like to see the thing redrafted in that spirit but even we from the Maritimes recognize the practical realities of everyday life and we followed this process that has gone on. If the model that is here is going to go forward then we think there must be some changes, yes.
Mr. Speyer: Mr. Kinsella, would you not agree with me that the very absence of the right to own and enjoy property, the absence of that right is a fundamental defect within the constitution of our country which is being proposed and one of the real foundations upon which this country was founded. Would you agree with that?
Mr. Kinsella: Well, again, you will find property mentioned as a proscribed ground in the covenants and also in the universal declaration of human rights. I have no difficulty in concurring with the desire to want to come to grips with the right to property.
Mr. Speyer: Are you concerned that the amending formula, if a referendum is chosen, one could really take away or change this charter of rights by the process of a referendum? Does that give you any concern?
Mr. Kinsella: Well, I do not know whether we would be any worse off under that situation than we are presently, but I would rather not make a comment in detail because that is not my field of great experience.
Mr. Speyer: Then very quickly could you enumerate maybe six or seven of the weaknesses that you see with respect to this charter other than the absence of property rights?
Mr. Kinsella: Yes. I think that under Section 15, for example, that the non-discrimination grounds should not be written the way they are but, rather, the non-discrimination grounds should be indicated the way we have suggested, namely every- one is equal before the law without regard to discrimination on such grounds as race, national or ethnic origin, etc. or other
status. In other words, rather than attempt to give complete enumeration and to respond to whoever may be able to get before you and argue that a given ground be added, by following the terminology which I just suggested, which is the terminology of the covenants to which we are already committed ourselves, that many other categories, if you like, or classes of non-discrimination rights by virtue of things like physical disability, etc. can be captured.
Just to answer your question directly, another area that I would like to see there would be the right to privacy included. That is certainly a modern kind of right that we have to come to grips with.
Mr. Speyer: And would you agree with me that one of the practical effects of having an entrenched bill of rights is that there is going to be a major shift to the courts from Parliament and the legislature in terms of both social policy and matters of legal rights?
Mr. Kinsella: Well, l would like to make this point, that the courts are but one institution for the protection of human rights and there are many others. The other two major institutions are the institution of the legislatures and Parliament, and also the institution of the people and public opinion, the voluntary sector. I do not know, Jam not a prophet, there may or may not be more appeal to the courts but the point I want to make is that we must not in Canada, in terms of the enhancement of human rights, come to the conclusion that a bill of rights in the constitution is the final guarantee of human rights, because the great advancements in race relations in the United Kingdom are made pursuant to the Race Relations Act; in the United States, it is pursuant to the Civil Rights Act, not pursuant to the American Bill of Rights or the European Convention as such.
So that many institutions, just as many instruments, will continue to be required if we are to continue to enhance human rights in modern Canadian society and to meet the needs of modern Canada.
The Joint Chairman (Senator Hays): Thank you, Mr. Speyer. Mr. Robinson.
Mr. Robinson: Thank you, Mr. Chairman, and I would certainly like to thank the distinguished delegation for your presentation. I know that, for example, Dr. Humphrey has a fine reputation in the United Nations and is probably, if not the most qualified certainly one of the most qualified to speak on our international obligations under the covenant, and I would like also to welcome Sandra Lovelace to the proceedings. I am just sorry we have not got time to hear from her and the effect that Section 12 (1)(b) has had on her and as she knows, the United Nations Human Rights Committee will be making a decision on that complaint in March or April of this coming year, and I might also point out, Mr. Chairman, in case members of the Committee are not aware of it, that there are a number of other complaints which have been filed with the United Nations Human Rights Committee which will be heard at that upcoming session.
Now, I appreciate that probably your brief had to be put together in a very short time, I wonder if that in fact is the case, Mr. Kinsella?
Mr. Kinsella: Yes.
Mr. Robinson: Unfortunately, we were not aware as a committee that you would be appearing before us until this evening so that has somewhat made it more difficult for us to question on the brief. I do have a number of questions, though, relating to the comments that have been made as well as a couple of questions relating to the brief itself.
Professor Humphrey, would you in fact confirm that if this charter of rights is adopted in its present form, that Canada would in fact be in violation of our international commitments under the covenant on civil and political rights, not just with respect to Section I but with respect to Section 15 and perhaps other sections as well, and that in so violating the covenant we could have complaints filed with us before the United Nations Human Rights Committee and ultimately before the General Assembly of the United Nations?
Mr. Humphrey: I did not go that far. I did not mean to suggest that if there is a conflict between the proposed Charter and our obligations under international law that we would necessarily be in violation of international law because we might, nevertheless, live up to the standards laid down.
What I did suggest is that when the report of Canada was being considered by he Human Rights Committee set up under the Covenant and in that report we were describing the measures that bad been taken in Canada, for the realization of our obligations under the Covenant, that undoubtedly our failure to incorporate standards which we had accepted would be criticized; but I did not go so far as to say that we would be in violation. We would only be in violation if it could be shown that as a matter of fact a right as set forth in one of these instruments had been violated.
Mr. Robinson: 1f I could perhaps turn to a specific example, Article 15 has been referred to in the course of your evidence before this Committee.
I note that the written brief in fact varies in substance from some of the comments which have in fact been made by Professor Humphrey and others, and indeed there are a couple of internal inconsistencies in it as well. I assume that is because of the haste with which it was necessary to draw the brief together.
For example, at page 7 there is a reference to your proposal for Article 15 and in there you recommend that Article 15 be amended to read as follows:
Everyone has the right to equality before the law and to the equal protection of the law without discrimination on any ground such as race, national or ethnic origin, colour, religion, age, language, sex or other status.
You say just before that, in the previous paragraph, that the list would be that which is contained in the U.N. Covenant.
As you are aware, in fact the U.N. Covenant contains more than that. It also contains for example, political opinion; so I think that is probably just a drafting error, or a typographical error.
You go on in your brief to question the use of equality before the law. I assume that that would somewhat reduce the strength of your earlier recommendation on page 7 that the wording include “equality before the law”; you would in fact want a stronger formulation, would you?
Mr. Kinsella: We have recognized that this would not be a drafting session and we did not have the time to come up with the exact wording, but the principle that we would urge upon the Committee would be that whatever phraseology is developed to handle the question of persons being equal before the law would be written in such a way that people like Sandra Lovelace would indeed have equality before the law and that it would be understood as resting on the principle of egalitarianism, resting on the principle of egalitarianism, resting on the principles, if you like, of the minority opinion in Bedard and Lavell, resting on the opinion that we have from the experience in the United Nations and also Brown vs the Board of Education in the United States.
Hopefully, the expertise exists here to draft it, but that is the principle that we would want it to rest upon.
Mr. Robinson: I appreciate that answer, and as I understand it what you are saying is that in your proposed wording that in fact there are certain principles that you are more concerned with entrenching and perhaps the wording you have suggested would be altered to reflect those principles.
For example, also in that section at the bottom of page 7, the International Covenant refers not to discrimination but to distinction, and I think that is perhaps a more appropriate word and you may not have given consideration to that.
Also, you refer in the written brief at page 4, you make a suggestion for the rewording of Article 1, and that again I would hope would not be your final position as to actual wording, particularly in view of the testimony of Professor
Humphrey which indicated that we should be in line at least with the International Covenant and this proposed Article 1 would permit derogation in fact from the denial of cruel and unusual punishment.
It would permit derogation from a number of other sections such as the right to be protected from retroactive declaration of criminal offences.
Once again in your proposed wording, I assume that this was quickly drawn together, and what you were seeking to do has been elaborated by the oral testimony of the witnesses here.
Mr. Kinsella: Mr. Chairman, I think you will find indeed it was the principles that we were putting forward, and on page 4 the principles that we are putting forward is that the limitations need lo be very strict limitations rather than generally accepted ones. And secondly, the principle that as far as the discrimination is concerned that rights would not be limited solely because of the colour of a man’s skin, or because of sex. That is the second principle.
Thirdly, as Professor Humphrey said, in times of emergencies not all of the rights which are generally accepted in the
world community need or ought to be derogated, like torture or cruel and unusual punishment, et cetera.
In reference to the time frame, indeed we had word that we would be here tonight late Friday afternoon, and this was begun Saturday morning.
Mr. Robinson: So you are saying that the brief was drafted
in basically two days because of the time pressures upon you.
Mr. Kinsella: That is correct.
Mr. Robinson: Finally, Mr. Chairman, just a brief question if I may, and that is just to understand very clearly the remark that was made by Mr. Young, some very useful additions which are not in fact contained anywhere in the brief under the legal rights sections, would you confirm, Mr. Young, that in your view it is essential that Section 26 which entrenches in effect the Wray decision of the Supreme Court of Canada saying that evidence is admissible in our courts of law no matter how it is obtained and there is no discretion in a judge to exclude that evidence, that that Section 26 should definitely be removed and that there should be at least a discretion in our courts lo exclude evidence obtained illegally.
Mr. Young: That is correct, I agree with the submissions made by several other commissions, the Canadian Human Rights Commission l think, was one of them, and several other organizations, that we should not necessarily permit in all cases all evidence illegally obtained to be admitted in court.
I think on the other hand to go the opposite way and to always exclude it is probably going too far as well because we should not make the potential victims of crime pay for police abuse of their powers. I think the best procedure is probably to allow the courts to decide in each case, considering the circumstances of that case, the gravity of the abuses of police powers, to determine whether or not evidence should be admitted.
Mr. Robinson: Thank you.
The Joint Chairman (Senator Hays): Thank you Mr. Robinson .
Mr. Irwin: Mr. Kinsella, I would like to echo the remarks of Mr. Robinson. It is indeed an honour and a pleasure to have you and Professor Humphrey and the rest of your delegation here.
I am particularly interested in the case of Sandra Lovelace. It is my understanding that it has been approximately two and one-half years since she tried to establish her rights, and at page 10 of your brief you say, and I quote:
Sandra Lovelace like all native women who marry non- status Indians lose their Indian rights because of Section 12(1)(b) of the Indian Act.
The reverse would not be true, is that correct, as far as an Indian male?
Mr. Kinsella: That is right.
Mr. Irwin: There has been quite a bit of discussion about this and it is still not clear in my mind how far Section 15(1) goes. I would like to go over it. 15(1), and I quote, says:
15(1). Everyone has the right to equality before the law and to the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.
Would you agree that the sex would cover Indians? Sex is not only referable to non-Indians.
Mr. Kinsella: Sex has been defined by our Canadian courts to refer to gender in the antidiscrimination statute.
Mr. Irwin: We are in agreement that would include Indian women.
Mr. Kinsella: Yes.
Mr. Irwin: Section 25 states:
25. Any law that is inconsistent with the provisions of this Charter is, to the extent of such inconsistency, inoperative and of no force or effect.
That is read in context with Section 29(2) which allows a three-year breathing period.
As I read this, if there are no amendments to the Indian Act when three years have elapsed Sandra Lovelace would have those rights which she does want.
Mr. Kinsella: The assumption is that the wording that is presently there would be interpreted in a manner different from the manner that grosso modo similar words in the Canadian Bill of Rights were interpreted by the Supreme Court of Canada in the famous Bedard and Lavell decision. They decided in that instance, the majority of the court, it was a 5 to 4 decision, that equality before the law be interpreted in a class sense and not in the egalitarian sense, in other words that it was not taken in the sense that indeed equality means equality, it was taken in terms of, well, if all Indian women are treated this way, that is fine; somewhat analogous to the separate but equal interpretation given in the United States prior to the Brown decision that so long as you treated blacks and whites equally and they equally had nice carriages to ride in, on the trains, then that was equality.
Well, that was totally rejected with the Brown decision. It is rejected by the opinion of the present Chief Justice. From newspaper accounts, submissions have been made to this Committee as to better phraseology. I leave it to the draftsmen to come up with the appropriate phraseology. But, I think I glean that you are accepting the principle that you want equality before the law, that people are really equal in the protection of the law and standing before the law so that someone like Sandra would not be discriminated against because of her sex and, as you say, the latter provision, if that was the interpretation to be given in Section 15, she would have a domestic remedy.
Senator Irwin: It would appear to me that the wording is clear enough, but you do have a fear so that perhaps we should take a look at it lo tighten up the wording so that the same thing does not happen again. Would that be your position?
Mr. Kinsella: Yes. That is the equality before the law point.
The other point we make with regard to Section 15 is that, rather than have the exclusive list of grounds which is presently within the wording of Section 15 of the resolution before you, that you would use terminology like “grounds of discrimination such as” and list whichever ones you wish to list, and try to come close to the list of prescribed grounds of discrimination that you would find in the provincial and federal human rights acts of Canada, because they have already been accept- ed, and then put at the end “or other status”; and the courts, then, would be focussing very clearly on discrimination, these kinds of things and the so-called ejusdem generis principle of statutory interpretation which will be applied.
But I would urge that we really focus on this discrimination because of the colour of one’s skin or sex and these kinds of variables which ought not to determine the quality of citizenship. I think that is so clearly accepted by Canadians anyway that it is important that we capture it.
I do not think it is necessary to have a complete enumeration of everything imaginable. Let us grow with this but let us not frustrate the growth by closing it in. Put “such as” and “of the other status” as your parenthesis.
Senator Irwin: I would like to deal with one particular point. Under the New Brunswick Human Rights Code, you say you include such things as at page 8, physical disability, marital status, ancestory and other grounds not included in Section 15.
Dealing specifically with physical disability, we recently had a task force-and they have come up with their first recommendation on this particular point, and they say, 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 to persons with physical and mental handicaps.
They go on under human rights to say that physical handicap be made a prescribed ground of discrimination for all discriminatory practices in the Canadian Human Rights Act and not just for discriminatory employment practices.
And further, that the Canadian Human Rights Act should be further amended so that the tribunal orders could be made with respect to access to goods, services, facilities and accommodation and that it include a qualification that changes ordered by a tribunal should not impose undue hardship on the respondents. I will deal with that specifically, but it goes on with other recommendations.
Now, under your own particular code, Mr. Kinsella, and specifically dealing with services and access to goods, would the owner of a restaurant or a landlord have to put in ramps to comply with the New Brunswick code?
Mr. Kinsella: In response to your immediate question, in Article 5(2) of the New Brunswick Human Rights Code, we
have a provision that allows the Human Rights Commission to determine the existence of a bona fide limitation. In other words, the faculty in our Human Rights Code, which I think is an appropriate one, allows the people to respond to the practical realities of things that are happening in the neighbourhood; for example, you may have architecturally an obstacle in relation to a building and it is physically impossible theoretically to make it accessible.
Senator Irwin: I do not want to cut you off, but my time is limited. So, there is a discretion and you have that flexibility.
Mr. Kinsella: That is correct.
Senator Irwin: Senator Lamontagne has often said we are not looking at two mutually exclusive things, a constitution and a legislature; that they should compliment each other. Would it not be better to go as far as you have indicated to put “discrimination” or “nondiscrimination because of employment practices”, which is clear, in a constitution and put “access to goods, services and facilities and accommodation” in a federal legislative statute or provincial legislative statute, something that is flexible and changes with the times and the circumstances?
Mr. Kinsella: It would be very difficult to do that under the present model, in my opinion. You will have to go back to square one of the drawing board. If you did that- it would be excellent if it could be done. You will get into the question of the right to work. How is the question of the right to work protected? You are implying that you want to protect the right to work. But the right to work has yet to be enunciated in the resolution as we have it.
So that, that is what I would like to see—the whole thing redrafted. However, I am comfortable with going forward with the present model with some specific recommendations, and I think the affirmative action faculty, expanding Section I5(2) might reach that issue.
Mr. Chairman, if I may go back to the preamble to the question, I think that particular brief and recommendation that you received with reference to physical disability, I think it would be very appropriate for this Committee to look very carefully at including as a prescribed ground physical disability, in addition to the reason that we would be drafting a constitution during the international year of the physically disabled.
It seems to me that we ought to be talking about drafting a constitution in terms of the social values of the closing years of the second millennium and not to go back to 1215 and the Magna Carta principles and philosophy, so there is the type of ground which, to my way of thinking, is an obvious thing which you put in. But at the same time if you are going to have grounds, I do not think you can put everything in.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Irwin.
Mr. Irwin: It has been a very interesting discussion. I found this to be a very positive and informative brief.
The Joint Chairman (Senator Hays): Mr. Robinson?
Mr. Robinson: As a matter of clarification, Mr. Chairman, I may have misunderstood one of the questions, and I did not understand whether Mr. Irwin was suggesting that Indian women such as Sandra Lovelace and others who have been stripped of their status should have to wait three or four years before they are given equal rights. Perhaps this could be clarified’?
Mr. Irwin: Definitely not, Mr. Chairman. My friend knows the problem we are having, that the Ministry of Indian Affairs has offered to suspend this discrimination in relation to at least 300 or 400 bands and only a handful have responded. It is a problem we are trying to solve; but my sentiments are identical to those of Mr. Robinson in this regard.
The Joint Chairman (Senator Hays): Thank you very much. We have Mr. McCain who would like to ask a short question, and also Mr. Lapierre, with the permission of the Committee. Perhaps we could do that. Mr. McCain.
Mr. McCain: Thank you, Mr. Chairman. I would like to ask the witness the difference between what I understand has happened in the United Kingdom and what we are proposing to do here. We are proposing to create a constitution with complications of amendment. We need not go into that. Only under certain conditions can they be amended.
As I understand it, the word we have used persistently has been that the U.K. “ratified” the Covenant; but it has done so in such a fashion that it can alter by legislation to accommodate a particular point in time when an amendment would be necessary. Am I correct in saying that?
Mr. Humphrey: Mr. Chairman, I do not know whether it is fair of Mr. Kinsella to refer that question to me. But obviously, the United Kingdom does not now have a written constitution. Therefore, there is no constitution into which a bill of rights could be embedded.
It is true that the United Kingdom has ratified the Euro- pean Convention for the Protection of Human Rights and Fundamental Freedoms. This binds the United Kingdom inter- nationally, and there is a movement in the United Kingdom somehow to give the European Convention some kind of priority, which may not be possible with the theory of the sovereignty of Parliament. How they are going to do it, I do not know.
But the journals are full of discussion in the United Kingdom of the idea of somehow entrenching their obligations under the European convention.
So it shows that, at least, thinking is beginning to change from the old idea of the sovereignty of Parliament to the idea of the sovereignty of law. Now bow this is going to be done, I do not know. If l knew I would tell Mrs. Thatcher. But I do not know just exactly how it is going to be done.
Mr. McCain: Yes. But that is a European problem, and they are grappling with somewhat the same problem that we are in the United Kingdom.
Mr. Humphrey: Many European countries, under their constitution, recognize the European convention as part of the law of the land, just as in the United States a treaty which is
ratified by and with the consent of the Senate becomes part of the law of the land. That is the case in most European countries, but not so in the United Kingdom.
Mr. McCain: Under that status, at the moment, for instance, we could with the stroke of a pen virtually adjust the situation for Sandra Lovelace if that were the mood of Parliament and if there could be the agreements which are required. But what if you find an inequity? We have been specific in certain rights. This concerns me. We have not been all-inclusive in the rights. That concerns me. Where do they stand? We have also got a resolution which says that under certain circumstances there should be no interference with the law as this resolution is adopted as a constitution. These things concern me. Where do we stand with the deletions, when it becomes specific that we have deleted. We have left certain sections: it shall not. interfere with the law. I am concerned that you have suggested that it would be better to adopt what we have as a start than get ourselves entangled with an amending formula which is somewhat difficult. You have confused me.
Mr. Humphrey: I do not think I said that, sir.
Mr. McCain: But Mr. Kinsella said that.
Mr. Kinsella: Then, perhaps I had better respond to Mr. McCain.
We are suggesting that if the model which is now before you is going to be advanced, then we are recommending that, for heaven’s sake make some fundamental, crucial amendments- amendments that we think are fundamentally crucial. I refer again to Section 1 and Section 15: they concern us the most. We have already commented on them. I do not share your view that this would be the end of things, for this reason, Mr. McCain.
Mr. McCain: On a point of order. I did not express a view. I was asking a question.
Mr. Kinsella: In response to your question, my own observation is that iLis not the end of the world because the international covenants are still there, and if the constitution cannot guarantee the rights of Sandra Lovelace, we will still go to the United Nations and attempt to achieve or obtain her rights as we are presently forced to do. but that ought not to be the situation.
Mr. McCain: Thank you very much, Mr. Chairman.
The Joint Chairman (Senator Hays): Mr. Lapierre.
Mr . Lapierre: I would like some clarification, above all. There was reference made earlier to Section 24 and to the case of Sandra Lovelace. This has also been of great concern to me and so has the three-year time limit. It is well known that the government is morally bound to the application of this charter of rights as soon as it has been passed in the British parliament or even as soon as it has been written. Consequently, if the amendments you propose were to be included in the final text, perhaps this case would be resolved shortly thereafter. I would like to point out that the amendments you propose have been recommended by other groups and I think all the members of the committee are very receptive to them.
However, there is one small detail which bothers me. In Section 15(1), there is mention of age. Does your commission feel that this ground should be maintained in the final version or would you rather that it be removed? Do you feel the inclusion of age is taking things too far? Do you feel it has any influence?
Mr. Kinsella: In New Brunswick, this is a very easy question. In out Human Rights Code, age is defined as 19 years of age or more. There is legislation in New Brunswick which outlaws discrimination on the grounds of age. So, New Brunswick has already made the choice and I am happy to see it included in the resolution as a prescriptive measure.
Mr Lapierre: Since I would not like to see everyone spend the night here this evening, I would just like to thank you for your remarks and your positive contribution.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Lapierre. At this time l should like to thank the New Brunswick Human Rights Commission, Mr. Kinsella, Mr. Young, Professor Humphrey and Mrs. Lovelace for being here this evening. We do appreciate your presence and also your brief.
Thank you very much.
The Joint Chairman (Mr. Joyal): It is my pleasure to announce to the members of the committee that when we reconvene at 9:30 tomorrow morning we will be hearing the representatives of the Franco-Canadian Cultural Association of Saskatchewan.
If there are no other questions or comments, I will adjourn this meeting until tomorrow morning at 9:30.
From the Protestant School Board of Greater Montreal:
Ms. Joan Dougherty, Chairman;
Dr. L. P. Patterson, Chairman, Constitution Committee;
Mr. Marcel Fox, Director General.
From the New Brunswick Human Rights Commission:
Dr. Noel A. Kinsella, Chairman;
Mr. Francis Young, Legal Counsel;
Dr. John Humphrey, President, Canadian Human Rights Foundation;
Ms. Sandra Lovelace, Tobique Indian Reservation, New Brunswick.
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