Document Information

Date: 1980-11-28
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 15 (28 November 1980).
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SENATE
HOUSE OF COMMONS

Issue No. 15

Friday, November 28, 1980

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.

Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the

Constitution of Canada

RESPECTING:

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.

WITNESSES:

(See back cover)

First Session of the
Thirty-second Parliament, 1980

[Page 2]

SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
OF CANADA

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.

Representing the Senate:

Senators:

Adams
Austin
Cottreau
Flynn
Lamontagne
Lapointe
Petten
MacQuarrie
Tremblay—(10)

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Campbell (Miss) (South West Nova)
Corbin
Côté (Mrs.)
Epp
Gimaiel
Hawkes
Lapierre
Mackasey
McGrath
Nystrom
Robinson (Burnaby)
Vankoughnet—(15)

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

Pursuant to S.O. 65(4)(b) of the House of Commons

On Friday, November 28, 1980:

Mrs. Côté replaced Mr. Henderson;
Mr. Robinson (Burnaby) replaced Mr. Hovdebo;
Mr. Epp replaced Mr. McMillan;
Mr. Hawkes replaced Mr. Hnatyshyn;
Mr. Vankoughnet replaced Mr. Fraser;
Mr. Gimaiel replaced Mr. Irwin.

ERRATA

Issue 3. page 3:78

Mr. Tessier should read Mr. Tassé

Issue 12, page 12:135, line 25 should read:

patriation of the constitution is both legal and constitutional.

[Page 3]

MINUTES OF PROCEEDINGS

FRIDAY, NOVEMBER 23, 1980
(28)

[Text]

The Special Joint Committee on the Constitution of Canada met at 9:37 o’clock a.m., this day, the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Adams, Austin, Cottreau, Flynn, Hays, Lamontagne, Lapointe, Petten, MacQuarrie and Tremblay.

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Mr. Corbin, Mrs. Côté, Messrs. Epp, Gimaiel, Hawkes, Irwin, Joyal, Lapierre, Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Vankoughnet.

Other Member present: Mr. Allmand.

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director; From the Research Branch of the Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.

Witnesses: From Canadian Bar Association: Mr. A. William Cox, Q.C., President; Mr. John P. Nelligan, Q.C., Chairman. Special Committee on the Constitution of Canada; Mr. Jacques Viau, Q,C., Batonnier, Past President: Mr. L. Yves Fortier, Q.C., National Treasurer; Mr. Victor Paisley, Chairman, Civil Liberties Section and Mr. David Matas, Chairman, Constitutional and International Law Section.

The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980 and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada published by the Government on October 2, 1980. (See Minutes of Proceedings, Thursday, November 6, 1980, Issue No. 1).

Mr. Cox made a statement and with the witnesses answered questions.

At 11:12 o’clock a.m., the Committee adjourned to Monday, December 1, 1980 at 8:00 o’clock p.m.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

[Page 4]

EVIDENCE

(Recorded by Electronic Apparatus)
Friday, November 28, 1980

[Translation]

The Joint Chairman (Mr. Joyal): Order, please.

I shall now ask the representatives of the media with recording equipment to leave the room so that the honourable members of the committee will be able to proceed with their debate.

[Text]

Mr. McGrath: Mr. Chairman, I wonder if I could speak to a housekeeping matter?

The Joint Chairman (Mr. Joyal): The honourable James McGrath.

Mr. McGrath: I mentioned it before, Mr. Chairman, but often we leave some papers and things in our places; I realize we have an excellent housekeeping staff here, but they overdo it sometimes; they take away our papers every day. It would be nice if they could be left there.

The Joint Chairman (Mr. Joyal): Honourable James McGrath, I take it upon myself to inform and instruct the personnel responsible for the housekeeping matters, as you said. to give them the same kind of warning that I gave to my secretary which is not to touch anything on my desk.

It is my pleasure and privilege this morning to introduce the representatives of the Canadian Bar Association. [Translation] It is my pleasure and privilege this morning to introduce the representatives of the Canadian Bar Association to the honourable members of this committee.

Some of the representatives of the Canadian Bar Association are well-known to the various committees of the House or of the Senate of Canada and it is a real pleasure to welcome them back and have them take part in our debate.

[Text]

I would like to introduce first Mr. A. William Cox, the President of the Canadian Bar Association, and I would like to ask him first to introduce other members of his delegation and, as usual, to start with the introductory statement. I understand that you will be ready to answer questions from the honourable members of this Committee. Mr. Cox.

Mr. A. William Cox, Q.C. (President, Canadian Bar Association): Thank you, Mr. Chairman.

First of all, let me introduce the members of our delegation. On my immediate right is Mr. John Nelligan, the Chairman of our Legislation and Law Reform Committee; on his right, Mr. Jacques Viau, Past President of the Canadian Bar Association and the Chairman of the Committee that produced the work entitled Towards a New Canada; Mr. David Matas from Winnipeg, the Chairman of our Constitutional Law and Inter national Law Section and also a member of the Committee which produced Towards a New Canada; Mr. Yves Fortier from Montreal, the Treasurer of the Canadian Bar Association and also a member of the Committee on Towards a New Canada; Mr. Victor Paisley from Toronto, the Chairman of the Civil Liberties Section of the Canadian Bar Association.

[Page 5]

I regret that Mr. Paul Fraser, the Vice-President of our Association, is not present today. Unfortunately, he is delayed on a court matter in Vancouver and could not be here.

[Translation]

I would like to thank the committee for this opportunity to present the brief of the Canadian Bar Association.

[Text]

Mr. Chairman, and members of the Committee, the Canadian Bar Association appreciates this opportunity to make a submission to you.

Our Association is a national voluntary association comprised of some 28,000 members, lawyers throughout the country, in all provinces and territories.

When your Committee was appointed and when it announced that it would hear submissions I appointed a Committee of our Association to prepare this submission. That action was confirmed by the national executive of the Canadian Bar Association.

I have already introduced the members of the Committee to you. ljust want to say that we were fortunate in having the assistance as resource people in preparing our submission of Dr. Gerard La Forest of Ottawa, Mr. Allan O’Brien of Mr. Nelligan’s office and Mr. Roger Gauthier, our Assistant Executive Director.

The Canadian Bar Association welcomes this opportunity to appear before the Joint Parliamentary Committee to discuss matters that are of particular concern to our association. We are already on record that the patriation of our constitution and the enshrinement of a Charter of Rights therein are long overdue, but we must register a caution. The drafting of a constitution and the enshrinement of rights in that constitution must be done with great precision and care. We must not, in seeking to preserve our freedom, curtail it through the use of obscure and ambiguous language.

Our submission was prepared in the spirit of Towards a New Canada. We hope, as stated in the foreword of that work, that our submission will contribute to the continuing debate and assist in producing a workable and acceptable solution. Our comments are sincerely offered in a helpful and a hopeful spirit.

I will now ask Mr. Nelligan, the Chairman of our Committee, to summarize our submission; and members of our delegation are available to answer questions.

Mr. J. P. Nelligan (Chairman, Special Committee on the Constitution of Canada, Canadian Bar Association): Thank you, Mr. Cox.

Mr. Chairman, Senators, members of the House of Commons, I think I perhaps should first explain to you the documentation that we have made available this morning.

There is of course a brief which has been filed with the Clerk and which I trust has now been distributed and that brief consists, first of all, of a study of the actual proposals before you, with our comments and with particular respect to its relation to the study we have already done and which has been mentioned by our President.

As an appendix to that brief we have prepared a study of the proposals as they relate to the covenant which this country has

[Page 6]

signed as a member of the United Nations. It is not, in a sense, a submission or a proposal of ours but we felt that it would be of assistance to members of this Committee in carrying out its deliberations.

We have, in addition to the actual brief document itself, two other volumes; the first and most important is a document entitled Towards a new Canada/Vers un Canada nouveau, which was prepared by the Association as a result of a resolution passed in 1977 when the Association resolved that the constitution of Canada be rewritten so as better to meet the aspirations and present day needs of all the people of Canada. In order to implement that resolution, our Association created a committee and it worked to search for a definition of the essential attributes of a Canadian federalism. This report is the fruit of that Committee.

We had hoped then and we hope now that it will contribute to this very important debate, and in large part our comments today depend upon that much more detailed study and I recommend it to your attention.

The Association went further, however, and after this report was published, we invited the comments of our provincial divisions and individual members of the Association and you will find that in this volume entitled Comments on Towards a new Canada and while it is not the official position of the Bar, it may indicate to you some of the concerns of lawyers and others across the country arising out of our original study.

Unfortunately that latter volume is in short supply and I am afraid that only a few copies have been filed with your Clerk.

Before beginning again I think I should indicate the limitations under which we operate. We speak, of course, for a national association. We do not wish to become embroiled in the question of the particular method of bringing the constitution home or in enacting a charter of rights and freedoms. These are major political questions on which members of the Bar, like other citizens, have different views. As we see our role, it is not to take sides but rather to use the resources of our profession to analyze proposals and help to clarify the debate. With that in mind, I intend now to itemize those points in our brief which we think you might want to question us on, not to go into it in full detail, and then, I do not profess to be an expert, but I trust that the experts with me will be able to answer your questions.

If I may turn then in the brief to the first question we considered, and that was the one of patriation. You will find in Towards a new Canada that the majority there were of the view that a constitution should come into effect by action taken entirely in Canada. But that view, of course, was predicated on the existence of an agreement between the federal government and the provinces. As we know that has not yet been achieved and it is not for us to comment on the desirability or otherwise of unilateral action. That is a political question,

[Page 7]

but there are elements on which we would like to say a word. We would have preferred that any actual amendments to our constitution appear in a Canadian document rather than in a schedule to a British statute. These amendments could have been appended to and brought into force by the proclamation of the Governor General, although he might be acting under the authority of a British statute. This was an approach which you will find discussed at the Victoria conference and it found favour with those members of our committee who wished to resort to the British Parliament at all.

What this does, of course, is mean that this major constitutional document would be wholly Canadian, and in our view this is an end which we should try to seek.

On the Charter of Rights and Freedoms, we of course have been pressing for such a charter for many, many years even before the formation of our committee that produced Towards a new Canada. As we say in that report, the symbolic and educational value of proclaiming the rights of the individual as being beyond the power of a transient legislative majority can scarcely be exaggerated. But it is more than a symbolic tool. As we said also, beyond the symbolic and educational functions, a bill of rights can be an effective instrument of enforcement, particularly of fundamental political and legal rights. The courts can declare laws that violate constitutional rights invalid. In the absence of guaranteed rights a transient majority in Parliament or a legislature can do incalculable harm to a minority or an individual.

Now, having said that and having acknowledged that some of the proposals which are before you today are actually found in the same language in Towards a new Canada, we must say that the Charter as now proposed, does not meet the standard which we were seeking, If the Charter is to serve as an effective instrument for the enforcement of fundamental rights, in our view a number of its shortcomings must be corrected.

If I may deal, and I feel now that this is a question that you have heard so many times, with some of the sections which we feel should be altered, I will not go into much detail because, having read some of the reports, I can appreciate you have heard much argument already; but we are, of course, concerned as many other groups are concerned, with the effect of Section 1. We feel that section should be ommitted.

We discussed the equivalent provision in the Victoria charter in our Towards a new Canada and that provision, which we think was much milder, we felt would serve to dilute the meaning and educational thrust.

In the case of the proposed Section 1, we fear it goes beyond that, and not only does it dilute the meaning and educational thrust, but it might destroy the entire purpose because, as others have told you, if the standard is a reasonable standard in a parliamentary government, we as democrats must accept that Parliament is deemed, in the normal case, to be reasonable and we run into a vicious spiral whereby the whole bill

[Page 8]

might be for nothing. We therefore propose that the whole section should be removed from the proposal.

There are other cases where we think the rights are diluted. Section 8 which deals with protection against searches and seizures made contrary to law, of course does not protect against unreasonable seizures made under the law our proposals and those of most other bodies have always suggested that the prohibition should be of unreasonable searches and seizures.

Again, with Section 9, as it is now worded it adds nothing to the law. It should provide that no one should be subjected to arbitrary arrest or detention.

And again, when we come to Section 11(d) on the denial of bail, it should be that there should be no denial without just cause. In each of these cases, of course, we are trying to impose a standard which cannot be altered by the arbitrary action of a legislature as well as by the arbitrary action of a public official.

With regard to Section 13, we are concerned that in the way it has been formulated it is now confined to the use of evidence in previous proceedings, and the traditional protection against forcing a person to give evidence against himself at his own trial has not been stipulated. In our view this should be expressly provided in the code.

Section 26 has been discussed, of course, by a number of groups and we are of a view with many of them that it is not appropriate that the charter should deal with the question of leaving the status quo.

Many groups have suggested to you that this should be left to the courts so that the policy should evolve and we are of that same view, but we would point out one further consideration: the language as presently proposed would in effect permit legislation dealing with evidence not only to not affect the status quo, but actually to deprive people of their civil rights. A hypothetical situation would be that although there might be a provision that persons could testify in their mother tongue, a rule of evidence could be passed in a province that notwithstanding their right to testify in that tongue, no one could be convicted on their evidence without corroborating evidence in the law, in the language of that province.

Similarly that you could distinguish between groups, for instance, that Indians testimony would only be accepted when corroborated by a non-Indian. I am not suggesting that any legislature would propose such legislation, but that is one of the gaps as it is presently worded.

Dealing with some rights which we feel are not broadly expressed or not sufficiently broad. We feel, for instance, in Section 15, that the right to equality before the law should not be limited to specific kinds of discrimination. We feel that the individual should be protected against all forms of unreasonable discrimination by a general recognition of the right of the individual to equality before the law. On that point, and again I think some of the other groups have discussed it, because of

[Page 9]

recent decisions in our courts it would appear necessary to make it clear that that equality is not merely before the law but equality in the law. I would not myself have thought a few years ago that was necessary but now, on the basis of experience, we feel that refinement of the language should be provided.

Native rights. In our report we suggested that our obligations to native people should be expressly set forth in the constitution. and at our most recent meeting in Montreal we passed the following resolution: that there be special constitutional provisions for native peoples incorporated in any revision of the constitution of Canada and that such special provision include recognition of the rights of women to native status on the same basic terms as men.

Dealing now with mobility rights. We would have had not only the rights set out in Section 6 but we would have preferred that the law guarantees against impeding in a discriminatory manner the free movement of any person lawfully in Canada. We feel that all manpower should move freely without discrimination through the country.

Now, in addition there are some rights which we feel are missing. The right to enjoy property and not to be deprived of it except by due process is now in our Bill of Rights but does not appear in the new charter. We also note the absence of the twin rights of privacy and information. We had recommended that the constitution protect the privacy of the individual against unreasonable interference and ensure reasonable access to all public information in the possession of governments.

Now, while the right of privacy may be afforded protection under Section 24, which retains other existing rights, we would have preferred an express provision.

Now, on the question of enforcement, we are very concerned that there is no actual mention in the proposed charter of the status of the courts. in our view we must have independent courts to enforce a bill of rights. We recommended in particular that the existence and independence of the Supreme Court of Canada should be enshrined. We also feel that the right of access to the courts to enforce the charter and the independence of the courts should be guaranteed. If this were not the case, the whole purpose of entrenchment would be destroyed.

[Translation]

On the question of language rights, we would have preferred that the numbers necessary to warrant bilingual services be determined either by a constitutional formula or the courts.

At the provincial level, we deplore the anomalous situation under which Quebec and Manitoba are required to accord greater linguistic rights than the other provinces.

[Page 10]

Our position, of course, marks a retreat from that in Bill C-60 under which such rights would have been extended to the provinces having the largest minority official language groups in the country, Quebec, Ontario and New Brunswick.

The minority language educational rights provision seems to us the most important of the linguistic rights affecting the provinces in our report, we say:

The constitution should guarantee the right of a parent to have English or French as the language of instruction of his children in publicly supported schools in areas where the number of people speaking that language warrants this course.

There are two other points. Our report would have guaranteed that a person should have the right, if accused of a criminal offence, to be tried in his language. Also, we would have preferred a more positive statement of the rights of Canadians belonging to linguistic groups other than English or French.

[Text]

Dealing now with equalization and regional disparities, we agree with what is being proposed but feel it should go much farther. The proposal in Section 31 places emphasis properly on the equality of opportunity for all Canadians but does not stress the regional aspects as the proposal in our report did. That was why in our report we suggested that these obligations should not impose disproportionately high taxes upon individuals or regions. It was also the reason for reminding the federal government of the need for sensitivity to the regional impact of fiscal and economic policies.

As to constitutional conferences, we accept the proposal but in “Toward a New Canada” we elaborated on a number of ways in which federal-provincial co-operation can be secured through such conferences.

The amending formula, of course, is an essential part of any proposal to patriate a constitution. As we put it in our report, a new constitution is possible without adopting an amending formula but the creation of this kind of constitutional straight jacket would be pointless. Any necessary future amendments would lack legal legitimacy, consequently we strongly urge that a new constitution make provision for an amending formula from the outset. Of course, the ideal is that such formula would be worked out in consultation between the federal and provincial governments. but as we have already said, whether this is possible or not is a political question and we make no comment on the appropriateness of proceeding at this time, but we must indicate that the interim formula which is proposed for the next two years is obviously too rigid for the long term. Some 50 years of constitutional discussions have amply demonstrated the difficulty of achieving unanimity on such a fundamental issue.

[Page 11]

Our attitude, as set out in our report, is that the amending formula must have a blend of rigidity and flexibility, and in Canada at least ensure a larger mesure of regional acceptance. The Victoria Formula, to us, seemed to achieve this result and it did not seem unreasonable that we should propose its adoption since it had reached at least the formal assent of the First Ministers at that time.

We would point out, however, that even in the Victoria Charter there are certain technical problems. The proposal there was that the consenting western provinces must constitute 50 per cent of the population of those provinces, but if at any time the population of any one of the western provinces grew to comprise half the population of the west, as at one time it was thought possible British Columbia might do, that province would have a veto. We feel that while it is essential that there be a veto to provinces having more than 25 per cent of the population, and in particular the problem with Quebec and its vital cultural concern, that such provincial veto should be kept to a minimum. We do appreciate, however, the need for giving greater weight to the larger western provinces. In our report we would have slightly modified the Victoria Charter by requiring for major amendments the assent of two of the western provinces, including one of the larger ones. The current proposal would make a slight modification to the Victoria Charter by requiring that in addition in the Atlantic provinces there should be a combined population of 50 per cent. This modification, however, may not be quite as reasonable as it seems because it extends the problem inherent in the Victoria Charter to the Atlantic as well as to the western provinces, but it does more than that. It robs Prince Edward Island of any voice since its population, as I believe has already been pointed out here, will never add up to 50 per cent when combined with any other Atlantic province, which means, of course, that two of the three remaining Atlantic provinces must always consent to a major amendment. The result would give us a much more rigid approach than that achieved under the Victoria Formula. If greater representation for Atlantic Canada is required it could be obtained by adopting the proposal for western provinces which we made in our report and of applying that to the Atlantic.

On the question of the national referendum, we did consider such a proposal because of the inherent lack of flexibility in a formula requiring 50 per cent, but after much thought we abandoned the idea on the ground that any such formula should give the French speaking majority of Quebec adequate weight, and if that was done it would require an unacceptably high percentage of agreement to a proposed change in that province. The same argument would apply to the alternative proposal made by the federal parliament for modifying the formula during the interim period under Section 38. In fact, the general majority of the population required to bring an amendment into force under that section might well offend

[Page 12]

against the principle of adequate representation through all the regions and could conveivably override the majority in all the provinces comprised in a particular region.

Now, Mr. Chairman, up to this point we have confined ourselves to those policies which our association has already considered. As you might expect, there are some new ideas in this report and there are also new considerations of our association, and we are simply now presenting to you certain factors, not proposing them but simply identifying them and suggesting you may wish to consider them.

For instance, our association has gone on record as favouring the retention of trial by jury. It is a question as to whether such a right should or not be given constitutional protection. Again, the proposals dealing with a fair hearing in the Charter relate only to criminal proceedings; should this be expressly extended to a fair hearing in civil proceedings as well?

Similarly, with regard to affirmative action. we must confess that we have not been able to study all of the implications and ramifications of such a proposal, but we would hope that this provision would not impede the courts in their duty of balancing rights in the context of the times and the facts, or lead to undue restrictions on the rights of other individuals. We can only recommend that these and other questions will be looked at by your Committee prior to the resolution going forward.

And then on the question of drafting. In our view, in a constitution more than in any other statute, style is of the essence. It is, after all, a symbol and an educational tool, and in that area—and we do not say this by way of criticism because we look upon this as a proposal that is here to be polished, there is still much to be done. We will give just a few examples of where we think there might be an improvement in the language.

In Section 2(b). that section gives the impression that the freedom of the press and the media is an individual right. Well, in fact, as we have already pointed out in our report, the freedom of the press is merely a mode by which the general freedom of expression is exercised, it is not a right of an individual as such.

In Section 2(c) the draftsmen should make certain, in light of reported cases, that the rights of assembly and of association are distinct and separate rights and are not a single right as has been found in the courts.

In Section 6(2), we ask: is there a single right to move and gain ones livelihood in a province. or are there rights first to move to a province and secondly to gain ones livelihood in a province? The importance of this point is that if the latter interpretation prevents a province from discriminating against persons from other provinces, the former does not. As we noted, we prefer a free movement of manpower without discrimination throughout Canada, and when you read the English and French versions of the present act we feel there is some confusion.

[Page 13]

The right to retain and instruct counsel in Section 10(b) can be a meaningless right, as many accused have found, unless it is combined with an obligation on some person to inform him of that right. The need for a provision that a person be so informed has been approved or recommended by our association; I will be frank: we did not stipulate, because we did not anticipate this constitution, whether it should be entrenched or not, but again, I think it is a matter that you should consider.

Section 23, we are afraid that there are rather murky areas in the language and this is particularly undesirable in such an important section. and in particular the obligation to implement the right by providing public schools is left to inference.

Again, in Sections 27 and 29 it is hard to determine exactly how the charter applies to the territories. 1n the first section their position is equated to that of the provinces, but in the second of those sections, their position appears to be equated to other matters within the authority of Parliament.

Section 29(2) itself is unhappily worded, we feel it could use slightly clearer language.

Section 31(1) on regional disparities contains a rather breathless sentence and we would suggest that if they took all the material before the word “Parliament” in the sixth line and put it in a separate section people could read it without choking. We doubt, in fact, that that opening provision has any meaning at all but if people are of another view we see no harm in having it there, just to set it up in a separate subsection.

In Section 41 there could well be an ambiguity with regard to the way in which consent is obtained in the Atlantic and western provinces. It could be argued that where three Atlantic or western provinces consent. it would not be sufficient unless two of those comprised 50 per cent of the population. Now, similar language appears in the Victoria Charter, in the English version, but the French version in that case made it clear. That is not the situation here.

We also raise a technical question on Section 51 and wonder why the repeal of Sections 91(1) and 92(1) of the British North America Act appear there rather than in Schedule 1 of the constitution act.

Now, in concluding may we just say this: first. we do not wish to appear negative in what we have done. It would be a simple matter for us to come here today and to congratulate the draftsmen on those sections with which we agree, but we do not feel that is our function or your function. in our view this is an excellent working draft but that it requires work, and excepting the policy behind the document, it requires work before it can be an effective Canadian instrument representing the aspirations which we all wish it to bespeak.

[Page 14]

In proposing these changes we should note that while favouring a new constitution, there is much to be said for the old one, and of course much of it is being left on the proposals now before you. As we said in our report, any document that can remain for H0 years as the basic legal framework of a society as diverse as Canada must evidently have inner strength, but we warned then and we warn now that that document is woefully weak in any symbolism that helps tie a people together by identifying what their country means to them and what they can expect of its institutions.

We would like those aspirations expressed but we wish them to be expressed well and we wish them to be expressed in a document that represents the whole of the country. We will do everything we can to see that such a document is made available and we hold ourselves ready to serve this Committee and any other group in preparing an appropriate legal document which represents all of our views.

Now, in concluding I will point out that there is that appendix on the comparison between the new Charter and the Covenant of the United Nations. I will not go into the detail there but it is available to you and of course we will be pleased to answer questions on that as well as on our main report.

Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nelligan.

Thank you very much, Mr. Nelligan and [Translation] I would certainly like to say on behalf of the hon. members of this committee that your suggestions are welcome and that we have all been waiting impatiently for them for a few days now.

I would like to recognize the first speaker on my list this morning, which is that of the hon. Senator Jacques Flynn.

Senator Flynn.

Senator Flynn: Mr. Chairman, I should at the outset like to add to your remarks and to congratulate the Canadian Bar Association on this brief which quite clearly is a followup to the document entitled Towards a new Canada published a few years ago. That document was of an extremely serious nature and was consulted on many occasions by many people, including the government, So, it is obviously not the first time that the Canadian Bar Association has come to the assistance of either Parliament or a legislative assembly. During my work in Senate committees, I quite frequently had occasion to hear the advice and opinions or to receive the assistance of your association. I consider your work admirable and worthy of recognition.

What struck me most of all in the document this morning which, albeit one perspective of the proposed resolution, nonetheless states on page 2 that:

It is not for us to comment on the desirability or otherwise of unilateral action by the federal government. That is essentially a political question that must be left to the political process. There is, of course, a legal dimension to

[Page 15]

the problem but that has been referred to the courts and it would, therefore, be inappropriate for us to comment on it.

I must say that I find that statement quite confusing. I have a good deal of difficulty distinguishing between some of the comments you make subsequently which are of a legal and political nature and the position you espouse here. Often the distinction between legal and political aspects is a difficult one to make. However, when you state that because the problem has been referred to the courts it would be appropriate for you to comment on it, what do you expect the committee to do?

Would you suggest that we not consider the legal aspect? It would seem to me that the question of sub judice only applies to individual interests. When the document or problem is of a purely legal nature, I do not see how you can hide behind that objection in withholding comment.

You are perfectly free not to make any comments, but at least do not tell me, I implore you, that it is because the problem is before the court. In fact, the primary decision which the Committee must make is that of the legality of the document. In my opinion, that is the first problem which must be dealt with and we would have liked to have heard your opinion on that question.

If you do not wish to speak about it, fine. However, do you maintain that it is because the problem has been referred to the courts that you do not want to make any comment?

Mr. Nelligan: if I may, Mr. Flynn, I will reply in English.

Senator Flynn: Fine.

[Text]

Mr. Nelligan: We of course were presented with a document some short time ago and we have been studying that document and have confined ourselves to the integral text of the document itself.

We are aware, as you are aware, that there are certain court proceedings now going on, and I understand from the paper this morning that the government has filed a brief in the Manitoba court which deals with the legal issues, and of course we have not seen either the original complaint nor the reply.

We recognize that there are legal concerns on the part of various people. We have not had the time to analyze those, nor did we feel that it was our function before this Committee to go into that particular aspect of the document.

I have confidence that there are members of our association working on both sides of that problem that will assist in its resolution but so far as our mandate is concerned here we did not feel that it was appropriate for us to get into that which involves other considerations rather than the text of the document itself.

[Translation]

Senator Flynn: I agree now that you have changed your position somewhat from that which appears in your document.

[Page 16]

In other words, you are saying that you find it would be unwise to take a stance but you are not invoking a sub judice problem.

The Joint Chairman (Mr. Joyal): Mr. Viau.

Mr. Jacques Viau (Chairman, Special Committee on the Constitution of Canada, Canadian Bar Association): Mr. Chairman, in reply to Senator Flynn, we propose two methods in the initial report entitled Towards a new Canada. We stated there that there were two ways of patriating the constitution. However, the choice was made by the government and we consider that the decision to proceed unilaterally was a political one.

On pages six and subsequently in the initial report, we state that there should be agreement and that patriation should be requested through joint federal provincial agreement. As everyone is well aware, that agreement was never reached. So, is it up to the Association today to take a stand on what it considers to be a political decision? As Mr. Nelligan has pointed out, our mandate here does not include that. However, we have attempted to develop the position we took two years ago in the original report which mentioned two ways of patriating the constitution.

That is why, Senator Flynn, we did and do not feel it appropriate to judge the unilateral action because it follows from a political decision which must be judged by political people.

Senator Flynn: I agree on a political dimension, but the legal aspect is very important. Does the Association consider that where there is serious doubt on the legality of the process, parliament, and especially this Committee, should simply ignore it?

[Text]

Mr. David Matas (Chairman, Constitutional and International Law Section, Canadian Bar Association): I will answer that. it is of course possible for any proposed law to be challenged in the courts and brought to the courts even before it is passed. As a general rule legislatures do not interrupt their legislative process simply because there is a question of legality.

Senator Flynn: I agree with you, but we are not dealing with an ordinary legislative process, we are dealing with constitution. Suppose for just a moment that Westminster takes this document as it is before us, brings it back, and that subsequently our courts decide that the process was illegal, do you think it is wise to do that, if there is any doubt about the legality of the process.

Mr. Matas: When a question is before the courts it is clear that there are two options. The law can be passed with the risk that it might afterwards be…

Senator Flynn: An ordinary law, that is true, but do you think it is the same thing with the constitution?

[Page 17]

Mr. Matas: The option is the same. It is up to this Committee and the government to decide which of the two options . . .

Senator Flynn: I would like to have your help in this respect.

In any event I notice, and this will be my last question, that you said that you had a lot of observations to make about the document and you said that it requires work.

Do you believe for one moment that we can make all these adjustments, these corrections, and look after the omissions in about ten days time?

Mr. Nelligan: I think it would be impertinent for us, Senator Flynn, to suggest the capacity of this Committee. I would not want to comment on that.

Senator Flynn: Well, you can look on the other side, then.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Senator Flynn.

I would now invite Mr. Svend Robinson to join in the discussion.

Mr. Robinson.

[Text]

Mr. Robinson: Thank you, Mr. Chairman. I certainly would like to join in welcoming our distinguished delegation from the Canadian Bar Association and thank you for your well put together brief. It is obviously very comprehensive, particularly in light of the short time that you had to prepare it.

At some future occasion, I would certainly be interested in pursuing some of the areas of your report Towards a new Canada. I promised Mr. Viau that I would not ask about the recommendations on the monarchy. I know that Mr. Lapierre has a special interest in this subject. He may wish to pursue that aspect of your report.

I would like to ask some questions focusing on some of your recommendations on the Charter of Rights. You have appended a very useful document here, a study comparing the provisions of the proposed Charter of Rights and the United Nations Covenant and as is stated quite properly the United Nations Covenant represents a minimum of basic rights.

I would assume, gentlemen, that it would be your position that the Charter of Rights which is proposed for adoption here in Canada should at the very least include those obligations which Canada is bound by internationally at both the federal and provincial level.

Would that be an accurate statement?

Mr. Matas: Yes, certainly, we say earlier on that that agreement should be kept but we also say towards the end that

The Covenant is a lot broader document than the Charter.

It is not necessary in order to conform to the Covenant to enact in the Charter every provision that is in the Covenant. The important thing is that what is necessary to be done to give effect to the Covenant be done and where we have

[Page 18]

provisions that are in the Charter that are drawn from or deal with the same subjects as are in the Covenant, then we feel there should be conformity with the Covenant, but there are matters in the Covenant that are not touched on at all by the Charter and we leave the question open about whether in fact those unrelated matters should be put in the Charter.

Mr. Robinson: But you do agree that in its present form the Charter is in violation of a number of sections of the proposed Covenant.

Mr. Matas: It is not in conformity with the Covenant. The closing sentence is:

Unless conformity with the Covenant in the Charter is not necessary to give effect, both federally and provincially to the rights recognized in the Covenant, Canada will be in violation of the Covenant.

Mr. Robinson: You have referred, as have many other witnesses, to the defects in the wording of Section 1 and certainly my understanding is that the Committee will be proposing some amendments to that Section, because as you point out, otherwise the effect of the remaining portions of the Charter might be completely negated.

Now you have also referred in your brief to Section 8, Section 9 and Section II(e) of the proposed Charter and would you agree that in their formulation in talking about these rights being in accordance with the law that in effect there is no entrenchment at all because what is being done is to entrench the right of Parliament to enact any law it likes on those questions of search and seizure and bail and the other provisions which are referred to.

Mr. Nelligan: Mr. Paisley?

Mr. Victor Paisley (Chairman, Civil Liberties Section, Canadian Bar Association): Yes, that would be our concern. We conclude that by virtue of Section 1 Parliament has a free hand to enact any legislation in connection with the issues that you have raised and identified and it is tantamount to not entrenching these rights at all.

Mr. Robinson: You would go further, I assume, that also in Section 8, Section 9 and Section 11 which you have identified that because of the wording which states that anything that is done in conformity with the law is permitted under this Charter that in effect that is not entrenchment of those rights. It is entrenchment of the right of Parliament to enact any law it wishes on these areas.

Mr. Paisley: That is our position, yes.

Mr. Robinson: On Section 26 we heard yesterday from the Canadian Association of Chiefs of Police and Crown Counsel who, incidentally, appeared together. You have recommended that this section be deleted.

How would you respond to the suggestion by the Association of Chiefs of Police that if Section 26 is deleted that this would perhaps permit our courts to deny the evidence which has been obtained illegally and in effect to negate the prosecutions for murder and so on.

Mr. Nelligan: Mr. Paisley?

[Page 19]

Mr. Paisley: The very court that the Charter of Human Rights would entrust to construe the provisions which are supposedly guaranteed is the same court where concerns are now expressed about the ability to wisely deal with concerns relating to the admissibility of evidence. It is inconsistent to deny the courts the right to enact or to construe wise rules which affect the admissibility of evidence and to give them an entrenched right to construe every other specified legal rights contained in the Charter of Human Rights.

Mr. Robinson: Thank you. Now you have also referred to Section 15 of the proposed Charter as have a number of other witnesses, I believe, at page 7 of your brief.

You have stated that you believe that the right to equality before the law should not be limited to specific kinds of discrimination, and certainly we will be proposing an amendment which would make that clear.

In its present wording, Section 15 refers to the words “equality before the law” and I think you have recognized that those words have had their effect substantially reduced by a series of interpretations by the Supreme Court of Canada and I believe that Mr. Nelligan suggested that there should also be equality in the law.

Now I appreciate that in the short time that you have had you have not had, an opportunity to put your minds to exact wording, but would you agree that the wording “equality before the law” as interpreted by the Supreme Court has been unduly restrictive and that that should be improved in the proposed Charter.

Mr. Matas: We would agree with that, that it has been unduly restricted, as interpreted. As Mr. Nelligan has said earlier, it is not something that we would have necessarily anticipated at the time that the Bill of Rights was passed and it is quite possible with the natural effluxion of time, even with that wording left in, that the courts would change that interpretation. The point we want to make clear is not the drafting point but the point that there should be equality in the statutes, in the administration and in the courts; and not just in the courts.

Mr. Robinson: That should presumably be reflected very clearly in the drafting of the section.

Mr. Matas: It should be clear.

Mr. Robinson: Going on then, you have referred at page 5 of the study, and I assume that the contents of the study have also been endorsed by your association, is that correct?

Mr. Nelligan: Yes, I think, as I pointed out, this study was prepared for your benefit when this came up.

Quite frankly, it has not been before our association but it was attempting to be a factual comparison and so if you could rely please on the factual elements and draw your own conclusions and judgments and not suggest that they are judgments of our own.

[Page 20]

Mr. Robinson: Thank you. I think that they are very sensible judgments, many of them, but unfortunately you have not had an opportunity to consider them as an association.

I would like to refer, though, to page 5 of the study and in there I think there is a very important point made which the Committee should consider and that is, as I understand it, you are suggesting in the study that the proposal that there should be a three year delay in the implementation of the antidiscrimination right, Section 15, really does not make much sense because, as I understand it, this is pointing out that by virtue of the Covenant, having entered into force in Canada in 1976, Canada was obliged to bring our domestic law into conformity with that Covenant some four years ago.

So, is it not the case that Canada has had four years already to bring both federal and provincial laws into conformity with the nondiscrimination rights outlined in the Covenant?

Mr. Matas: Yes, that fact speaks for itself. The Covenant was signed in 1976, entered into force in August 1976 in Canada. Canada has already reported to the Human Rights Committee on compliance with the Covenant. There is a large report which is available from the government. Canada has appeared before the Human Rights Committee and has had questions put to it about its compliance and a number of comments have been made about what has been done and what Canada intended to do in order to comply with the Covenant.

Mr. Nelligan: May I just add a caution to that. As lawyers. we cringe from the implementation of a statute, or this Covenant, before its ramifications are carefully analyzed and I think there might be a very great danger if everything is implemented and we suddenly find that half of our laws are inoperable. We can quite appreciate a draftsman point of view requiring some time to go through revised Statutes to find out what what patching is required.

Mr. Robinson: Thank you. One final question, if! may, Mr. Chairman. I might just note in passing that I would have thought perhaps an association representing lawyers would be quite pleased with a suggestion to the contrary.

Mr. Nelligan: We have done enough work on this one, as it is.

Mr. Robinson: My final question relates to a matter which is touched upon somewhat peripherally in your brief and that is the question of remedies.

Would you agree that in light of both the 1978 report and also your brief that the proposed Charter as drafted now simply does not contain adequate provision for recourse by citizens whose rights have been violated, to the courts, and that they may be able to obtain adequate remedies; that there should indeed be some much clearer formulation of the right of access to citizens to the courts to obtain remedies for violation of these rights rather than simply stating that the law is inoperable.

Mr. Nelligan: Mr. Paisley?

Mr. Paisley: Yes, I think that that is a very key issue. Our report considers it at page 9 and in the same breath that we

[Page 21]

refer to the recommendation that the constitution should guarantee access to enforce the Bill of Rights we point out in the very next sentence that this was also why among other reasons our report recommended that the existence and independence of the courts, and in particular the Supreme Court of Canada, should be enshrined.

I think it is safe to say that when you are drafting a constitution you should take the long view, and an examination of the history of the United States Supreme Court and the efforts of an early administration to pack that court in order to get its way might give rise to the determinatin that our courts should be entrenched in a manner that will not permit any tampering with it. That is point number 1.

Point number 2, access is in fact denied where civil rights to a fair hearing are excluded under the existing Bill of Rights. The provision contained in Section 2 of the Canadian Bill of Rights provides that every law of Canada shall be construed and applied to guarantee the right of a person to a fair hearing in accordance with the principles of fundamental justice.

Under the present proposed Charter it is only in a criminal trial that the right to a fair hearing is guaranteed, so a person may be deprived of his property or civil rights without any guaranteed access or remedy to the courts.

Thirdly, we should point out that one of the remedies that the court might otherwise have available to it is to exclude evidence unlawfully or improperly obtained, and there is precedent under our existing law for the state to deprive a person of a guaranteed right and for the evidence thereby obtained to be admitted. That is clear law as it now exists. This provision that is going to be entrenched in Section 26, forbids the court from enacting or interpreting the law in a way that would deprive the state of the fruit of the poison tree, as it were.

So, for those three reasons, we have pointed out grave deficiencies with respect to access and remedies.

[Translation]

Mr. L. Yves Fortier (National Treasurer, Canadian Bar Association): Mr. Chairman, I would like to add a few comments to Mr. Paisley’s, though I agree with him. We should be remindful of the fact that section 25 provides for the inoperability of provisions inconsistent with any other rule of law. It seems to us that if any piece of legislation was contrary with any provision of the charter, such inconsistency should give right to remedy for damages before the courts. I would like to point out some contradiction in the French version and the English version of section 25.

In English, section 25 provides that “any law that is inconsistent with” which has been translated into or from French by [Text]”it is a law”? [Translation] We have tried to figure out whether a law or a rule of law was the same thing.

[Page 22]

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fortier.

I would like now to recognize Mr. Ron Irwin please.

Mr. Irwin.

[Text]

Mr. Irwin: Thank you, Mr. Chairman.

Mr. Nelligan, I want to first congratulate your group on a excellent brief.

The Canadian Bar Association and lawyers in general have been criticized severely for the last decade and probably before that, going all the way back to perhaps Shakespeare, that they lay back and wait and are not the forefronters of civil liberties.

I have been paying dues to your association for 20 years and I am glad to see that they were put to some good use for the last three years.

I appreciate the difficulty of coming up with a consensus report like this with lawyers from across the country meeting periodically from time to time to deal with this, all very independent of each other. Even though the report is very critical in many places of the constitution proposed, I must say it is cogent and very straightforward, and is very much appreciated.

I would like to deal with Section 1. You have indicated that it should be deleted. Section 1 is a qualifying section, and I will just read it quickly:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

Now, I put to you that no right is absolute; even the right of free speech is qualified in that perhaps for instance, under the Criminal Code you cannot cause a disturbance in a public place, for example, there are many restrictions to keep our society together without having it turn into anarchy or chaos.

I suggest to you, because you are critical of the wording later on in general, that rather than deleted Section l, we might come back with a better worded Section I that meets the requirements of more inspiring wording, and meets the requirements that rights in here are more enshrined and less susceptible to court interpretation.

Mr. Paisley: Our concern with Section 1 as written is that it would, in our opinion, completely over-ride the rest of the Charter. Without examining the given Section 1 which is envisaged, it is impossible to say whether our concern would be satisfied or not.

We simply take the position that if it remains with the rest of the Charter, it would probably be of no effect at all.

Mr. Irwin: Many groups have expressed the view which you are expressing, and some have come back and said that it should be made stronger and not so intrusive.

I appreciate the difficulty in not having that here now.

Mr. Paisley: May I add to what I have said further. We feel that even if there is no Section I, it does not mean to say that

[Page 23]

there are going to be unqualified or absolute rights. Experience elsewhere with unqualified rights shows that they are in fact qualified by the courts. There is the statement of the courts in the United States to the effect that the right of freedom of speech does not give a person the right to call “fire!” in a crowded theatre.

We believe that if you have the right stated in an unqualified fashion it would be interpreted in a reasonable way by the court. That is the reason why we suggest it is unnecessary to have this sort of introductory limitation clause as proposed.

Mr. Irwin: As regards Section 133 of the British North America Act, in relation to Ontario and New Brunswick, I would like to seek your comments on the application of that section on civil litigation.

As I understand it, experiments are taking place in Ontario in the Small Claims Court where there are cases going on in, if you like, French.

Have you any comment to make as to how well this is working?

[Translation]

Mr. Fortier: Mr. Chairman, though I am from Quebec, I can neverthless assure you that the system put in place in Ontario works reasonably well, to my knowledge. At Chapter five of its report towards a new Canada. the Canadian Bar Association had recommended that provisions for using one official language or the other in a criminal case be enshrined in the constitution.

We had also recommended enshrining the right to testify in French or in English before any Canadian court. We think that the proposed resolution does not go far enough. We agree with you, Mr. Irwin, to say that asking this question helps pointing out the danger there is in not enshrining such a right.

Today’s Ontario government is encouraging the use of French. But will tomorrow’s government do the same? This is the main reason why, in this field as in others which have been commented upon, we recommend the enshrining of certain fundamental rights.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Irwin.

[Text]

I would like to recognize now the honorable James McGrath.

Mr. McGrath: Thank you very much, Mr. Chairman.

I would like to take up where Senator Flynn left off. I was struck by the statement in the brief with regard to the unilateral action of the federal government, whereby the Canadian Bar makes the point that it was a political decision; hence, they make no comment on it, but would prefer to leave it in the political arena.

That disappoints me, because I say, with respect, that I believe that is an abdication of the responsibilities of the Canadian Bar, because it is not a political decision; it is a

[Page 24]

question of some legal importance to this country. We have certain conventions which are an enshrined part of our constitution, and which are just as binding as the written parts of the constitution.

One of those conventions holds that changes in the structure, or the balance of power within the federal system of Canada, may only be made by the Westminster Parliament after a joint address and with the advice and consent of the provinces.

Legally, of course, the United Kingdom Parliament can change the British North America Act without reference to Canada; but, of course, the convention holds that they will not.

We have a situation now whereby, as a consequence of the unilateral action of the federal government. the referring of legislative proposals for substantive amendments to the BNA Act will essentially change the balance of power within the Confederation and, of course, as has been rightly pointed out, that matter has been referred by some of the provinces to the court. But we also know from the famous Kirby amendment, the document which was leaked prior to the First Ministers’ meeting, that the advice of the Government of Canada was to get this question out of Parliament before the courts had an opportunity to decide on its legality.

We had the evidence of one expert witness and I would have hoped we could have classified the Canadian Bar as expert witnesses in this area: but one jurist, Mr. Justice Clyne, appeared before us. In reply to a question from Mr. Beatty, he said if the question came before the courts, in his opinion it would be declared unconstitutional.

I would just like, specifically, to ask Mr. Nelligan if, in his opinion, it is right and proper, whether it is within the realm of propriety, for the Government of Canada to proceed with this matter of a reference to Westminster while the matter is still before the courts?

Mr. Nelligan: Perhaps I should say that you see before you a group of people who are interested Canadian citizens, graduate lawyers, and also representatives of the Canadian Bar Assciation. We appear before you today in that last capacity.

I can assure you, from the meetings we have had over the last few weeks, that our opinions, in the other two capacities, are as fervent as those of members around this table. They are not necessarily the same, We are speaking in our official capacity to try, as well as we can and as fairly as we can to give you the position which we feel represents the consensus of the Canadian Bar.

We do agree that there are serious problems here, but as to the propriety of an action of government, we feel, in all modesty, it is something to be decided by the elected members and not by ourselves, and we would not presume to advise you on it.

As to the question of proceeding while the matter is before the courts, we have given you the technical position with which we are all aware, that there is a practice in our courts to recognize the ability of an administrative or legislative body to

[Page 25]

proceed, even though its actions are being challenged in the courts.

Beyond that, we do not feel we can, as an Association, assist you.

I am sorry if we have let you down; but I can assure you that we have so many people in this Association and a wealth of so many different views, that we would not be fairly representing any particular group of them if we were to express or to give you an opinion at this time.

Mr. McGrath: Do you hold to the view that the constitution of Canada is much more than the written part, which is the British North America Act, and that there are certain conventions which are just as binding on the country in terms of the constitution as the written parts of the British North America Act, and that one of the conventions, by virtue of the unilateral action of the Government of Canada—and you have extensively referred to the Charter of Rights, an area which seriously upsets the balance of power in this country—that one of those conventions in fact has been very seriously violated?

Mr. Nelligan: Which one?

Mr. McGrath: The convention dealing with the Government of Canada only referring unilaterally to Westminster. Those areas which are within the federal jurisdiction, but that a reference of any matters touching on the jurisdiction and/or powers of the provinces would only be made after the consent of the provinces had been obtained?

Mr. Matas: I just want to refer to the position on the Statute of Westminster. Mr. McGrath has suggested earlier that perhaps the British Parliament could change the British North America Act even without the request of anybody from Canada. But according to the Statute of Westminster, that is not so.

The Statute of Westminster specifically provides that no act of the British Parliament shall apply to Canada unless Canada requests it. So, they would have as well to amend that statute if they were going to act.

I believe it is important to distinguish between two questions: one is whether Britain should act on the request of Canada alone; the second is the legality of the procedure. It seems clear that Britain can, and should, act on the request of Canada, otherwise it would simply amount to an interference in Canadian affairs.

As regards the legality of the procedure, that is the question before the courts, and it is one of the courts to determine—if and when Britain does act on the unilateral request of Canada alone whether that has a legal effect and whether the act has legal effect.

Mr. McGrath: I am amazed that I have not got a precise answer to my question, should not Canada wait until the courts have had an opportunity to decide on the question?

Might it not be that what Canada is doing in asking Britain to make these substantive amendments to the constitution might be ultra vires the Statute of Westminster, which in fact conferred sovereignty on Canada in 1931. That is another

[Page 26]

question that I am surprised the learned counsel from the Canadian Bar have not addressed.

So, it seems to me that, by not dealing with these precise legal questions you do us a great disservice; and I say that without any great disrespect.

We have been denied the right of expert witnesses by the majority vote of this Committee. by the government vote of this Committee, and we had looked to you to providing some expert advice to us.

Yet, on the very complex questions of law that we have to deal with in examining these proposals, you seem to hedge, and, indeed, you ignore them completely.

[Translation]

Mr. Fortier: Mr. Chairman, it has been clearly pointed out for over one hour this morning that this question is more of a political rather than a legal nature.

The Canadian Bar Association has the courage of its individual and collective convictions. Certain Committee members seem not willing to understand that we were resticted by some conclusions of the 1978 report of the Canadian Bar Committee on the Constitution. We have not discussed this precise question of two years ago, that is, can the federal government refer unilaterally to Westminster in order to patriate the constitution? If we were today to give you an opinion on that matter, we would clearly go beyond our mandate.

Secondly, I am very surprised to hear that we appear before your Committee as expert witnesses. If you want one of our members of the association to appear before you individually as an expert witness we would be pleased to accept your offer and to answer your request.

Senator Asselin: I would like to put a supplementary question, Mr. Chairman, on the remark which has just been made. Will you allow me to put it?

The Joint Chairman (Mr. Joyal): If the honourable James McGrath has no objection to it.

[Text]

I understand that you will not oppose Senator Tremblay asking for a clarification.

Mr. McGrath: I am sure I can depend on your usual leniency, Mr. Chairman.

[Translation]

Senator Tremblay.

Senator Tremblay: Thank you, Mr. Chairman.

You have just said that you do not have the mandate because the unilateral action of Parliament was not discussed in the 1978 document. Unless lam mistaken. in that document and again in your brief today, you call for agreement.

Mr. Fortier: Absolutely. That is correct. Also, as you have just pointed out, we mention that from page 2 on in the report we tabled today.

[Page 27]

Senator Tremblay: Therefore, my question is as follows: Are you still calling for agreement?

Mr. Fortier: The report of 1978 still stands.

Senator Tremblay: Then, without misinterpreting you, may I conclude that you still call for agreement.

Mr. Fortier: We continue to claim that it would have been preferable if an ageement had been reached, but we do not go so far as to say that if there is no agreement the action is illegal.

Senator Tremblay: I could draw the same conclusion without going against the principle of the desire for agreement.

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

I hear the bell summoning the hon. members to the House of Commons. However, I would like to ask for the consent of some of the hon. members to allow Senator Lamontagne to be recognized for one question and then to move on to the hon. James McGrath. Is that the wish of the Committee?

Thank you. [Text] Mr. McGrath for a final question.

Mr. McGrath: Mr. Chairman. I am sorry that we have so little time for this witness, and that is part of our dilemma, of course, but you place great stress on the Charter of Rights, gentlemen, and given those of you who operate in the English common law tradition I was intrigued, for example, to learn that of the 42 Commonwealth countries, 33 have Charters of Rights entrenched in the constitution. If you go through them you will find, for example, Bangladesh, Botswana, Cyprus, the Gambia, Ghana, Grenada, India, just to mention a few. Nigeria.

Now, all of these countries have one thing in common: they have all been under dictatorships at one time or another. They have had martial law of one kind or another. However, the countries that have the best record of protecting human rights are the countries that do not have rights entrenched, like New Zealand, Australia and Canada.

For example, another country which is not a member of the Commonwealth which has rights entrenched is the U.S.S.R. Article 125 of the U.S.S.R. constitution states, and I quote:

In conformity with the interests of the working people, and in order to stengthen the socialist system, the citizens of the U.S.S.R. are guaranteed by law freedom of speech, freedom of the press, freedom of assembly including the holding of mass meetings, freedom of street processions and demonstrations.

And then it goes on, Article 127:

Citizens of the U.S.S.R. are guaranteed inviolability of the person. No person shall be placed under arrest except by decision of a court of law or with the sanction of a Procurator.

Article 128:

The inviolability of the homes of the citizens and the privacy of correspondance are protected by law

[Page 28]

I submit to you, gentlemen, that I find it difficult to understand, given our traditions in Canada, how you can come to this committee and state that the entrenchment of a charter of rights, and you quite rightfully pick holes in that proposed charter before us, will somehow protect our rights in a much more secure fashion than the system that prevails at the present time. I submit to you that the entrenchment of a charter of rights is inconsistent with our system, with parliamentary democracy and our British traditions. common law traditions, and I would have thought the Canadian Bar would have been the first to come before us and make that point.

[Translation]

Mr. Viau: Mr. Chairman, that is one of the principal reasons why we have insisted upon an independent legal system to which we refer both in the report of 1978 and here again in this brief;

The Constitution should guarantee access to the courts to enforce the Bill of Rights.

Further on, we state:

It is anomalous to have a constitutional charter of rights without a constitutionally enshrined Supreme Court.

Perforce, legal independence is essential to the enshrinement of basic rights in the constitution.

That is why one should not exist without the other and why we consider that independence of the courts should be enshrined in the constitution.

We realize that there have been problems with the Supreme Court, especially regarding appointments, and so forth, but I feel that despite all those difficulties the existence and independence of the courts and in particular the Supreme Court of Canada should be enshrined in the constitution.

[Text]

Mr. McGrath: In order to give the courts that power, and if you were to enshrine the independence of the courts in the constitution, then I would expect that you would advocate a change in the appointment process?

[Translation]

Mr. Viau: Mr. Chairman, that is what I have stated. I realize that there has been some discussion and that the constitutional meeting last year apparently stalled on that very question of appointments. A variety of proposals have been made. In our report, there is even an entire chapter devoted to the Supreme Court, There, we make reference to the American system and suggest that a reformed Upper Chamber could be the body responsible for choosing and accepting judges appointed to the Supreme Court. That may be the most equitable way to proceed because there would probably be some difficulty in reaching unanimous agreement among the provinces on the choice of appointments to the Supreme Court.

The Joint Chairman (Mr. Joyal): Thank you, Mr. McGrath.

On a short question, I would now like to recognize the hon. Senator Lamontagne.

[Page 29]

Senator Lamontagne: Thank you, Mr. Chairman.

I would like to come back to Section 1. Would it not be preferable, rather than omitting this section, as you seem to propose, to draft a restrictive clause instead which, of course, would be compatible with the intention of the United Nations covenant? In my opinion, this would eliminate the constraints brought about by the other sections of the charter and the ones to which you have objected here this morning.

So, what would you think of the suggestion Mr. Fairweather made before this Committee that Section 1 be redrafted to read as follows:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to the legislative limits reasonably justifiable in a free and democratic society.

Could I have your opinion on that redrafting proposed by Mr. Fairweather?

The Joint Chairman (Mr. Joyal): Mr. Matas.

[Text]

Mr. Matas: Well, it is our opinion that there should be no limitation clause even in the forms suggested by Mr. Fairweather. One important purpose of a charter of rights is its educational and symbolic value. We feel that the educational thrust and the symbolic value will be diluted by a limitation clause. It may well be at the end of the day the limitation clause of the sort that Mr. Fairweather suggests would result in the same interpretations before the courts as a charter without a limitation clause, but for symbolic and educational reasons we feel that a charter without a limitation clause would be a better charter than one with that type of limitation clause.

[Translation]

Senator Lamontagne: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Senator Lamontagne.

There are, of course, other speakers on my list who would like to be recognized. I see the names of Senator Tremblay, Mr. Jean Lapierre and the Honourable Bryce Mackasey. Also, I understand that some members have commitments elswhere at this time.

I also understand that the Committee had agreed to make a decision this morning regarding the appearance and schedule of witnesses to be heard on Monday.

Consequently, I am in the hands of the Committee on both those questions.

Senator Austin.

[Text]

Senator Austin: Mr. Chairman, as I said last night, we on this side were prepared to move a motion this morning for hearings on Monday beginning at 9:30 A.M. and again at 3:30 P.M. and 8 o’clock. I have spoken to Mr. Epp and Mr. Nystrom, and Mr. Epp advises me that his group have committments to caucus Monday morning and Monday afternoon and therefore we will not press our insistence on meeting on Monday morning and Monday afternoon. I think we have agreed to proceed with the native and Indian organizations on

[Page 30]

Monday evening and Tuesday in whatever scheduling Mr. Dobell is able to arrange.

[Translation]

The Joint Chairman (Mr. Joyal): The honourable Jake Epp.

[Text]

Mr. Epp: Thank you, Mr. Chairman. What Senator Austin says is essentially correct. I have said to him on behalf of my colleagues that, as I see the schedule at this moment there are only two slots next week that are in fact scheduled for witnesses, namely the premiers, for Thursday night and Friday morning next.

Next week, as the Committee has its regular schedule, that the entire week is open for witnesses, I placed caveats as to the number of native groups yesterday, I will not repeat that.

Additionally, I have also indicated to Senator Austin, I believe it should be on the record, that should the Committee need extra time we would consider as well Wednesday night.

Senator Austin: I would like to indicate our agreement to sit on Wednesday night, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Senator Austin.

I would like to ask Mr. Lorne Nystrom for his opinion on that same question.

[Text]

Mr. Nystrom: I want to also offer our agreement on this, that we are willing to sit Wednesday night if possible, and since the Conservative Party have caucus meetings scheduled on Monday morning and Monday afternoon I think it unwise to sit at that time.

I also want to mention one other point, Mr. Chairman, that I think we should leave it to Mr. Dobell which national native organization we invite Monday night but there was an understanding, I think, amongst the three of us that perhaps the Inuit could be the ones we hear first. Now, if that understanding has been communicated to them, then perhaps we should follow through by doing that unless it does not matter to them. It does not matter to me whether it is the Inuit people or the National Indian Brotherhood, but let us make sure there is no misunderstanding.

The final point on that, Mr. Chairman, is that I think Senator Austin agreed yesterday with the suggestion I made, that in addition to the three national umbrella organizations that we had already agreed amongst the Traffic Committee, the three of us, that the Yukon Indians and the National Indian Women’s Organization should be heard, and since we have already agreed to that I do not see any reason why they cannot be scheduled without any further consultation except for perhaps details on timing.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. Mr. Epp.

[Text]

Mr. Epp: Excuse me for asking for time again, Mr. Chairman, but just a small point. I agree with what Mr. Nystrom has said with one caveat: I believe we have a Subcommittee which is responsible for scheduling of witnesses, I would not want to see any scheduling unless there is agreement among the three of us.

[Page 31]

[Translation]

The Joint Chairman (Mr. Joyal): Thank you very much, for your co-operation, Mr. Epp, Mr. Nystrom and Senator Austin.

It is an honour and a privilege for me on behalf of the hon. members of this Committee as well as the Hon. Senator Hays to thank you for your contribution to our proceedings here this morning.

Among the various legal notions which we are taught, there is the title of amicus curiae. I dare say the Canadian Bar Association could be awarded the title of amicus Parlimentari, meaning that every time issues or problems of national interest or related directly to the exercise and practice of justice in Canada were discussed, we would be able to benefit from the knowledge and experience of the members of your association.

In particular, I would like to publicly thank Mr. Jacques Viau on behalf of the Parliament of Canada, House of Commons and the Senate, for the excellent work which has gone into the document entitled Towards a New Canada.

This document reflects an extremely generous vision of our country, I feel it is a source of inspiration for all the hon. members around this table in resolving the difficulties which they face.

So, I would like to thank you sincerely on behalf of all members of this Committee.

[Text]

Mr. Cox: Thank you very much, Mr. Chairman, for a very considerate hearing.

[Translation]

The Joint Chairman (Mr. Joyal): The meeting is adjourned until 8.00 p.m. Monday evening.

WITNESSES

From Canadian Bar Association:

Mr. A. William Cox, Q.C., President;
Mr. John P. Nelligan, Q.C., Chairman, Special Committee on the Constitution of Canada;
Mr. Jacques Viau, Q.C., Bâtonnier, Past President;
Mr. L. Yves Fortier, Q.C., National Treasurer;
Mr. Victor Paisley, Chairman, Civil Liberties Section;
Mr. David Matas, Chairman, Constitutional and International Law Section.

Other Issues: