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 20 (5 December 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 20 (5 December 1980).
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HOUSE OF COMMONS
Issue No. 20
Friday, December 5, 1980
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the
Constitution of Canada
The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980
(See back cover)
First Session of the
Thirty-second Parliament, 1980
SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons
On Friday, December 5, 1980:
Mr. Bockstael replaced Mr. Breau;
Mr. Benjamin replaced Mr. Hovdebo;
Mrs. Hervieux-Payette replaced Mr. Lapierre;
Mr. Rossi replaced Mr. Landers;
Mr. Allmand replaced Mr. Henderson;
Mr. Lapierre replaced Mr. Rossi;
Mr. Hnatyshyn replaced Mr. Fraser.
Pursuant to an order of the Senate adopted November 5, 1980:
On Friday, December 5, 1980:
Senator Yuzyk replaced Senator Roblin;
Senator Molgat replaced Senator Goldenberg;
Senator Connolly replaced Senator Thériault;
Senator Beaubien replaced Senator Asselin;
Senator Cameron replaced Senator Austin.
MINUTES OF PROCEEDINGS
FRIDAY, DECEMBER 5, 1930
The Special Joint Committee on the Constitution of Canada met at 9:35 o’clock a.m., this day, the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Asselin, Austin, Connolly, Cottreau, Hays, Lamontagne, Lucier, Molgat, Tremblay and Yuzyk.
Other Senator present: The Honourable Senator Beaubien.
Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Benjamin, Corbin, Crombie, Epp, Mrs. Hervieux-Payette, Messrs. Hnatyshyn, Irwin, Joyal, Lapierre, Mackasey, McGrath and Nystrom.
Other Member present: Mr. Hawkes.
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 Saskatchewan Human Rights Commission: Mr. Ken Norman, Chief Commissioner and Ms. Louise Simard, Deputy Chief Commissioner.
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. Norman made a statement and with Ms. Simard, answered questions.
At 11:00 o’c1ock a.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Friday, December 5, 1980
The Joint Chairman (Senator Hays): May I call the meeting to order.
Honourable members, we have this morning the Saskatchewan Human Rights Commission, represented by Mr. Ken Norman, Chief Commissioner, and Madam Louise Simard, Deputy Chief Commissioner. They have instructed us that they have a short presentation that they wish to make, and then they are prepared to answer questions.
Mr. Norman, you may proceed.
Mr. Ken Norman (Chief Commissioner, Saskatchewan Human Rights Commission): Thank you.
Senator Hays and Mr. Joyal, honourable Senators and members of the House, let me begin by thanking you for the opportunity to be here this morning, and to offer a small apology. Due to the time contraint I was unable to produce my opening remarks in French. I regret that.
Our purpose here this morning with regard to our initial remarks is to raise serious questions of institutional competence with regard to the antidiscrimination provisions of the proposed Charter.
I wish to begin by talking about the history of anti- discrimination legislation in this country, in order to lay a basis for the argument that Section 15 creates serious difficulties with regard to the interface between the ordinary courts and statutory human rights agencies, such as the one which 1 have the privilege to chair.
I will then turn to some examples, from recent experience, such as the Stella Bliss decision of our Supreme Court, as to which you have already heard a good deal, in order to illustrate the problems which we may face, in a hightened form, if the proposed resolution leaves Parliament unamended.
Finally, I will suggest a form of words which will accommodate the concerns identified by my examples, if they are incorporated as amendments to the proposed resolution.
Although in his speech to the House, on October 6, 1980, the honourable Jean Chrétien, Minister of Justice, gave pride of place in Canada’s history to the Province of Saskatchewan, as the first jurisdiction in Canada to enact a bill of rights in 1947, thanks to the leadership of the honourable T. C. Douglas, the record ought to show that it was Ontario, not Saskatchewan, which first proclaimed antidiscrimination laws.
In 1944, the Racial Discrimination Act of Ontario was the first broad legislative statement that racial and religious discrimination were contrary to public policy.
May I ask you to please note, at this point, that enforcement of this statute was left to the ordinary courts on a quasi
criminal prosecution. Three years later, in 1947, Saskatchewan enacted the Bill of Rights which included anti-discrimination provisions with regard to race, creed, religion, colour and ethnic origin. Again. adopting the Ontario model, my province left the matter of law enforcement to the courts on a prosecution.
In 1962, recognizing the futility of the judicial enforcement mechanism, the province of Ontario created Canada’s first modern Human Rights legislation and an agency, the Ontario Human Rights Commission to administer it, This time it took Saskatchewan not just three, but 10 years to follow the lead of Ontario. Finally, however, in 1972, the Saskatchewan Human Rights Commission came into being.
Now, let me review the antidiscrimination law enforcement record for you, at least in my province. For no less that a quarter of a century, from 1947 until 1972, the antidiscrimination provisions of Saskatchewan’s Bill of Rights stood proudly on the statute books. But, there was not one single prosecution under the Bill. You will search the law reports in vain if you set out to find a single reported case where a victim of discrimination sought relief in the courts by instigating a prosecution.
To my knowledge, in just two civil cases, over that 25 year period, litigants sought, with a noteworthy and uniform lack of success, to raise antidiscrimination provisions, to rely upon the prohibition in the Bill of Rights against religious discrimination in the courts. They failed to convince the judge in either case that the argument was worthy.
Well, perhaps one might conclude on this footing that there just was not any discrimination based on race or religion in Saskatchewan during this period of our history.
But, as a person who has lived his life in that province and but for two years as there during that entire 25 year period, I can tell you that that conclusion simply runs contrary to my experience.
One must, therefore, look elsewhere for an explanation. Professor Walter Tarnopolsky, in the second edition of his book on the Canadian Bill of Rights offers the following analysis. He suggests that both the Ontario Racial Discrimination Act and the Saskatchewan Bill of Rights, by leaving the enforcement of antidiscrimination provisions to the ordinary courts placed—and I quote:
the whole emphasis of promoting human rights upon the individual who has suffered most, and who is therefore in the least advantageous position to help himself. It places the administrative machinery of the State at the disposal of the victim of discrimination, but it approaches the whole problem as if it was wholly his problem and his responsibility. The result is that very few complaints were made, and little enforcement was achieved.
Ontario, Saskatchewan, the other provinces and, most recently, the federal government, have now all opted for
statutory human rights agencies, as the preferred law enforcement vehicle for antidiscrimination provisions.
But let me take a moment or two and describe some of the aspects of a modern human rights agency, The agency has both investigative and educational and prosecutorial staff. It may initiate complaints. It has the carriage of complaints which cannot be settled amicably and which constitute probable cause violations before independent boards of inquiry.
It has, further, the capacity to engage in rule making, so as to address systematic issues of discrimination on a broad front, rather than chipping away or trying to chip away on a case by case method of approach.
My Commission has statutory authority to make regulations, subject to the approval of the Cabinet, defining words in the Human Rights Code which are not defined in the code itself. We have done so.
The Canadian Human Rights Commission, to cite another example, has the statutory mandate to set down binding interpretive guidelines as to the meaning of words and phrases in the Canadian Human Rights Act. And these interpretations must be adhered to by adjudicators before whom human rights complaints may come for hearing and determination.
In addition, the Saskatchewan Human Rights Commission has the power, after full public hearings, to exempt persons or classes of persons from the provisions of the code and to approve affirmative action programs designed to accomplish the objects cited in Section 15(2) of the proposed Charter.
In short we have human rights commissions spread across this country, with original jurisdiction to meet the challenges of enforcing antidiscrimination laws for one simple reason. They are perceived now by all governments as being equipped to do a better job than the ordinary courts in this regard. Not only do they have more equipment and flexibility, as a matter of logistics and politics, but being in the field on a full time basis, they can surely be expected to be somewhat more responsive to the needs of those groups who seek shelter under the protective umbrella of human rights legislation.
But be that as it may, let me turn to two specific cases, in order to try and illustrate my point. Section 15 of the proposed Charter proscribes discrimination on the ground of sex. An insight into how our Supreme Court might see fit to confine the interpretation of this word “sex” may be found in the unanimous and brief decision handed down by our court in Stella Bliss versus the Attorney General of Canada. This decision was signed on October 31, 1978. As you have heard at some length about the Bliss decision, I will content myself at the moment with reminding you that, although the court acknowledged that the Unemployment Insurance Act perhaps invidiously discriminated against the plaintiff on the ground of her status as a pregnant worker, it did not discrimnate against her because of her sex.
Exactly one month after the Bliss decision was published, the Saskatchewan Human Rights Commission heard a complaint by Lucille Leier against the CIP Paper Products Company. The case involved an allegation by Ms. Leier that she was discriminated against by her employer on the ground of sex by virtue of being denied disability benefits under a group illness and disability plan underwritten by the Metropolitan Life Insurance Company, which plan specifically excluded coverage in the case of pregnancy or pregnancy related disabilities, childbirth or complications.
My colleague Louise Simard and I put our signatures to a decision which cleared the way for a reversal of the Bliss case, in our province. Permit me to read the last paragraph of that decision in Leier.
Because of the Bliss judgment, we find ourselves with very little choice. But for this Supreme Court pronouncement, we would have authored an opinion saying that the disability plan in question was in violation of Section 3 of The Fair Employment Practices Act.
Which section simply proscribes discrimination in the work place on the ground of sex:
We would have preferred the unanimous view of the American Federal Circuit Courts of Appeal,
Seven of them:
as endorsed by the dissenting justices in the American Supreme Court in Gilbert. To establish a dichotomy between “pregnant women and non-pregnant persons,” is surely, to beg the question. As Mr. Justice Stevens
A dissenter in Gilbert said,
“The classification is between persons who face a risk of pregnancy and those who do not,” If this be the proper dichotomy, then the question put to us must be answered in the affirmative. For, to exclude pregnancy related disabilities from coverage under an employee disability protection plan is, surely, to engage in an act of sex discrimination. This is because men do not face a risk of pregnancy. However, due to Bliss, the only deferential option open to us is to accept the employer’s argument. The Ontario government,
and, more recently, the Congress of the United States, have seen that the question at issue must be answered in the affirmative. Our hope is that the Legislature of the Province of Saskatchewan will demonstrate, before long, that it has similar vision.
As soon as the Leier decision was published, our Commission drafted amending words, with a view to legislatively
broadening the definition of sex. I am pleased to tell you that within five months those words had received the unanimous support of the House in Regina, and the Saskatchewan Human Rights Code now explicitely defines sex so as to embrace discrimination on the basis of pregnancy or pregnancy related illness.
If you will, I ask you to imagine how this scene might have played if the Supreme Court had had Section 15 before it when it came to consider Bliss. There is no evidence that I can find to found a conclusion that they would have adopted any less narrow a definition of sex. But then, where would my Commission be in responding to the challenge of the Leier case a month later? I rather doubt that we would have enjoyed much success in attempting to overthrow what is now a constitutional interpretive ukase from the Supreme Court. However, if our constitution, if our Charter of Rights provided an indication to that Court that it should respect the original jurisdiction of statutory human rights agencies to consider antidiscrimination matters first, there would at least be a clear opportunity to present to the court a complete record, a more full argument, before it took it upon itself to rule on the matter. Allow me for a moment or two to take you into the specific reasoning in Bliss to elaborate upon my point.
In a very brief judgement, a unanimous Supreme Court had to wrestle with the meaning of the phrase “equality before the law” in the Canadian Bill of Rights and what, to my mind, is an apparently discriminatory outcome of our unemployment insurance legislation as it affects the pregnant worker. Only five Canadian cases are cited in thejudgment and no more and then sex discrimination is clearly said not to include pregnancy.
In our decision in Leier a month later we pointed out that no fewer than 18 United States Federal District Courts and seven Federal Circuit Courts of Appeal had all considered this question and come to the opposite conclusion, and considered this very question under an American statute, not the constitution, what sex discrimination was to be said to include, We further noted that some seven full months before the publication of the decision in Bliss, the House of Representatives published a report entitled Prohibition of Sex Discrimination Based on Pregnancy. At the time of that report there was a bill before the House and the Senate. At the time of the publication of that report it was public knowledge and we said so in the Leier decision, that some 100 members of the House and some 30 Senators had already publicly endorsed this bill, the bill was sure to pass. And the bill did pass. It made it clear that sex discrimination was to include discrimination on the ground of pregnancy and pregnancy related illnesses or disabilities.
The bill cleared through Congress well before Bliss was handed down, yet the Supreme Court apparently knew nothing
of this, and as at final irony, the very day that Bliss was published, October 31, 1978, that same day President Carter sat down to sign this bill stating the opposite.
Had the Bliss case, in my hypothetical constitutional scenario, been first considered by a statutory human rights agency, I am confident that the American jurisprudence and legislative history would not have gone unnoticed and perhaps, just perhaps, the Supreme Court may have been saved from error. That is my thesis this morning.
Now, while our minds are occupied with thoughts of sexwhile my mind is occupied with thoughts of sex . . .
Mr. Mackasey: Too early in the morning.
An hon. Member: For an Irishman, Bryce.
Mr. Norman: Let me turn to another example, a rather different kind of example, but I hope it will be ehlpful in my argument.
As I have indicated earlier, statutory human rights agencies have a much broader array of response mechanisms than do our ordinary courts, quite rightly. Antidiscrimination provisions are extremely difficult to enforce. Such agencies are not, as are courts, left with the hard choice of either striking something down wholly or approving it as lawful entirely, with no possible middle ground. With no disrespect intended to our courts. I do think that it is a fair statement to say that the court operating the language of Section 15 alone, leaving aside Section 1, has a rather either or choice in front of it, either it is to conduct itself rather like at least two, if not three, of those little monkeys we all learned about at our mother’s knee, neither seeing nor hearing let alone speaking evil, when asked to adjudicate an issue of alleged invidious discrimination. Either that or I think the court has to behave rather more like a cousin of those little monkeys. It is like the story of the two friends who meet and the one says to the other, I understand you have a new pet. The other says, yes, it is terrific, it is an 800 pound gorilla. Really? Good heavens. Where does it sleep? Anywhere it wants! That is the problem, it seems to me, that the courts are faced with, to strike down or to approve and nothing in between.
Human rights agencies are not left with that hard choice. Section 15 of the proposed charter proscribes discrimination on the ground of sex with no ifs, buts, or maybes in that section as now worded. Where does this strict form of words leave a judge who is invited by a litigant to liberate all public washrooms and changing rooms at swimming pools and other recreational facilities? I wonder—and I ask you to wonder with me. What might a judge do with a suit seeking the absolute removal of all sex bars with regard to custodial personnel, guards, in penal institutions? Well, I leave it for you to speculate on that matter. But, for better or worse, the judge’s response, I submit, will likely be all or nothing at all in looking at such a suit.
Let me tell you about that very issue as it was dealt with a few months ago in Saskatchewan by. our Commission. Last winter we conducted hearings with regard to certain exemptions which sought by the Corrrections Branch of the Department of Social Services in Saskatchewan, that department charged with the administration of our provincial jails. At the time of the hearing, and at all previous times, there was not one female custodial officer employed in Saskatchewan’s adult male correctional facilities, not one. Facing the Human Rights code’s prohibition against sex discrimination in employment, the Correctional Division sought an exemption. After a full hearing, my Commission granted a partial exemption. We said this in doing so:
The first question to be determined is whether some sort of sex bar is warranted as a reasonable occupational qualification, on the ground of public decency. The Com mission is of one mind in answering this question in the affirmative, so long as the matter of tight security is at stake. Where the compelling interest
And I highlight those words “compelling interest”.
of this degree of security dictates surveillance or searching of the person, at any given moment, at the option of custodial workers, conventional standards of public decency in this Province, at this point time, clearly require that custodial staff in ‘secure’ areas be of the same sex as the inmate population.
As far as I can tell, this exemption order met with general approval. Why? for one thing, it opened up close to half of the complement of new custodial positions in three new facilities about to be opened up in the province to competition without regard to the sex of the applicant. That is surely a dramatic step forward for women with regard to that job classification, and it may well, in time, lead to further steps on their behalf in our male penal institutions, Such a step was accomplished, I submit, without shocking people’s senstivities with regard to personal privacy or public decency.
With no hint in the proposed resolution that our courts should be respectful of, let alone deferential to, the decisionmaking processes of human rights commissions and boards of inquiry under human rights legislation, I ask you to please consider just where Section 15, employing the language it does, may leave a decision such as the one I have just outlined of our commission with regard to the question of the sex bar in correctional facilities for adult males in the Province of Saskatchewan.
What I am asking with regard to your deliberations on the constitutional proposals is really a parallel of a position that was taken by Professor Ian Hunter in an article in the March edition of the Canadian Bar Review when he was talking about the interface between statutory human rights agencies and the courts. He says at the conclusion of that article, at page 130, and I endorse his words,
“To avoid exacerbating racial tensions and to preserve the concilliatory thrust of human rights legislation, a private remedy should not be available until after the commission has been unable to resolve the complaint by investigation and concilliation, and has recommended against appointment of a board of inquiry, then it is submitted the complainant should be authorized at his own risk and expense to attempt to persuade a court that he has been civilly wronged.”
Well, due to the time alloted to me this morning I will not burden you with further examples but that is not to say that I do not have them at hand. If during the question period any members of the Committee would like to ask me about them I would be pleased to refer to examples touching the prohibitions in Section 15 with regard to both religion and age, which is a particularly troublesome provision.
In summation, I invite you to consider certain procedural amendments which will accommodate the concerns to which I have addressed my opening remarks this morning. I propose amendments to Section 25 rather than to Section 15 as I am not here seeking substantive changes. You have heard from others far more cogent and eloquent than I as to the substantive changes and you may wish to ask questions about that of me, or Louise, but at this point I am interested in the procedural concern thus, and I think there is some precedent for my proposal in that the proposed charter has already adopted a similar course by choosing to put Section IS on ice for three years. not by an amendment to Section 15 but pursuant to Section 29(2), while everyone scurries about trying to figure out how in the world to implement it for those three years.
So I invite you to consider amending Section 25 to read as follows, the introductory words to Section 25(1) would be subject to subsection (2), and then the words as they appear in the proposed Charter:
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.
Then subsection (2) I propose would read:
no law or practice shall be construed as inconsistent with Section 15 unless any other remedy available and provided for by law has been sought.
There is one other amendment to which I would briefly like to lend our support in this opening statement. Section 47 of the Saskatchewan Human Rights Code gives our Commission authority to approve and monitor affirmative action programs designed to ameliorate conditions of employment, accommodation, education for disadvantaged groups protected by the sheltering umbrella of our code. Section 15(2), as presently worded, has an intention which we support but it literally gives carte blanche to any effort at affirmative action, however half baked or egregious. As the United States Supreme Court made clear in its decision last year in Brian Weber versus United Steel Workers and Kaiser Aluminum and the United States, voluntary affirmative action programs are not acceptable if they unnecessarily trammel the interests of white male employees.
Under Section 47 of the Saskatchewan Human Rights Code it is our Commission responsibility, after a full public hearing, to give due weight to this vital moral consideration in our deliberations leading to approval or variation of affirmative action programs. Section 15(2) ought to take cognizance of such a statutory responsability, but it ought not to go further, in the name of human rights for all. Thus, I endorse the following language which was presented to you some time ago, on November 14, by my opposite number federally, Gordon Fairweather, Chief Commissioner of the Canadian Human Rights Commission. He proposed this language, which I support.
This section does not preclude any legislative distinction which is justifiably related to some bona fide amelioration of the condition of certain specified classes of persons.
Let me conclude this opening statement with the language which I set down in my telegram to you, Senator Hays and to Mr. Joyal, of November 12. I there said that Section 15 gives rise to both theoretical and practical concerns. Accordingly, I requested that you afford me an opportunity to detail for this Committee the potential friction points between judicial interpretation of Section 15, as it is now worded, as 1 envisaged it, and the orderly administration of human rights legislation across the face of this country of ours, by statutory agencies such as the one which I chair. You have now given me this opportunity, I thank you very much for doing so.
Mr. Chairman, Louise Simard and I are now quite ready to respond to any questions which the honourable members may have for us.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Norman. Our first questioner is the honourable Ray Hnatyshyn, followed by Mr. Benjamin.
Mr. Hnatyshyn: Thank you, Mr. Chairman. I want to preface my questions by welcoming you and to say thank you very much for the presentation that you made which, while it deals with the specific matter, which of course is of some concern to them, it does allow us to delve into some of the fundamental principles that are involved in the Charter of Rights.
I should say, Mr. Chairman, I am a bit hesitant to be piercing in my cross-examination or overly critical. 1 have to admit at the outset that my . . .
The Joint Chairman (Mr. Joyal): I will have to stop you for a minute, Mr. Hnatyshyn, with the greatest respect because I think the sound system is not functioning.
Go on, I am sorry.
Mr. Hnatyshyn: It was really a very eloquent opening I made and I almost should repeat it but I will restrain myself. Just scattered applause for that observation.
In any event, I want to welcome you here and thank you very much. I was just going to make the point that I feel a bit constrained, a bit of a conflict of interest because I have to acknowledge that a very close relation of mine is a member of the Saskatchewan Human Rights Commission, namely my
mother, and if I am too hard on the witnesses I am going to get it when I go home this weekend.
Having said that. I wanted to just make the general observation with respect to the presentation, that I know the difficulties that are encumbent on adjudicating on human rights matters and matters of discrimination and it is a very delicate issue, one which, you readily point out, is not necessarily a black and white situation and there are public perceptions, or there is public is public opinion to take into account, public attitudes, and as a result you have to tread a very careful line. I would like to, just as a matter of principle get out of the way a very fundamental question and ask you whether or not you, in terms of a charter of rights, individual or human rights, you subscribe to and are supportive of an entrenched bill of rights over and above the mere legislative route that has been taken up to this point?
Mr. Norman: Well, for me, that is like asking me if the Pope is Polish. My job is to head a human rights commission. I support rights being articulated in a document which has as much status as it can be given. I was very proud when our Human Rights Code received the unanimous support of our legislature and was proclaimed in August of 1979 because it contains a paramountcy clause. All legislation of our province, to the extent that it contradicts our code, is inopertaive, and I feel that is very important. I think that for its educative value in terms of making this constitution of ours a document which I believe Gordon Fairweather suggested ought to be a noble document, it is important particularly in this time in Canada that we have across this country some common articulation of values which we all share, whatever province we maytcome from.
Mr. Hnatyshyn: Well, Mr. Chairman, to Mr. Norman and Ms. Simard, while I appreciate the fact that the provincial statute and certainly the Diefenbaker Bill of Rights, if I may refer to it in that way, have what I term paramountcy provisions. There is no question that the experience with respect to the judicial interpretation of those bills of rights has not been exceptional, in other words with the possibility of one excepa tion, the Drybones case, the Supreme Court has by and large ignored the statutory provision, and what I am getting at is I would like to hear unequivocally, if I could, whether or not you subscribe to the principle of entrenchment of a charter of rights, a proper charter of rights, in our constitution?
Mr. Norman: My goodness, not only did I think I was being unequivocal, I even made a stab at trying to be eloquent.
Mr. Hnatyshyn: Well, you were both but I, being obtuse, did not quite catch the answer. Around here we always a simple yes or no will do.
Mr. Norman: Will yes do?
Mr. Hnatyshyn: Yes, that will be fine. Well now, that brings me to the next element of my questioning, with respect to the question of discrimination provisions, it seems to me, and I would like you to comment on this, that the thread of arguement that you take forward with respect to sexual discrimination and the subsequent secondary observation that you have with respect to Section 15(2) struck me, and I stand to be corrected, as being slightly at cross purposes.
What I think you are suggesting is that in one sense you are bit reluctant to trust the courts to give a proper judicial interpretation, an assessment in all circumstances relating to individual rights and they may be somewhat restrictive and are attempting to build in by way of amendment some way in which there will be an ability to ameliorate the judicial interpretation of the courts, but can I ask you this question: does not the opposite consequence flow? While your motives are quite admirable in suggesting that, is it not possible that if you in fact do not give absolute supremacy in terms of interpretation to the courts and allow for some kind of ameliorating body through human rights commissions or whatever commissions may be put in place, similar in nature and different jurisdictions, that the opposite consequence might flow?
Is it not possible that if you do not in fact give absolute supremacy in terms of interpretation to the courts and allow for some kind of ameliorating body, human rights commissions or whatever commission may be put in place of a similar nature in the different jurisdictions, that the opposite consequence might flow?
I need not remind you that even legislatures are not above passing legislation which now appears to be quite discriminatory. For example, in Saskatchewan in the early part of the century a Chinese person was prohibited by legislation from employing a white woman. In British Columbia, in 1897, a British Columbia election act provided that no Chinaman, Japanese or Indian shall be entitled to vote.
So, you see, it is rather difficult. I understand your dilemma. Unless you give the courts an ability to make a judicial interpretation, always understanding that these charters of rights and the constitution can, in extraordinary circumstances be amended.
The difficulty is that you are opting—I do not know if there is a grey area; I do not know if there is a black or a white area; but I am simply asking you if you could try and precisely explain how you would hope to avoid the pitfalls of particular jurisdiction going the other way because of times of intense emotion about an issue, apprehended insurrection, or war; I can understand those circumstances. At the time of the War Measures Act, it was very appropriate for us to pass discriminatory legislation. Perhaps pressures can be brought upon a human rights commission to sort of flim flam the whole issue because of the pressure of public opinion.
I am sorry I have taken up so much time in talking about this, but I am quite concerned that, unless we give the courts the right to interpret—an independent judiciary able to interpret the rights of individuals that is equivocated, it may not in fact produce the result that we may want, even with the greatest motives that you have.
Mr. Norman: I understand your point. Your argument follows logically from the premise.
I would like to say that you have misunderstood me with regard to the premise. The case I carried before this Committee is not at all a case of expressing reluctance to trust the right of the court, ultimately the Supreme Court, to interpret legislation and the constitution. Not at all. I support that
premise entirely. I think our system of law, under the rule of law in a democracy, requires it.
All I am saying is that subsection (2), with respect, has nothing to do with this part of my argument. Subsection (2) is really a kind of addendum saying, as Gordon Fairweather and Mary Eberts in her excellent brief on behalf of the Advisory Council on Status of Women, that subsection (2) can provide, as she put it, quite crazy results.
So If we could leave subsection (2) out of it for a moment and return to your essential point, which is a most serious one, which is that we must leave interpretation to the court, I support that very strongly.
The Saskatchewan Human Rights code and, indeed, other human rights legislation creating statutory agencies, do not contain prohibitive clauses or ouster clauses as some of our administrative agencies do, such as labour boards, as a prime example, the immigration board—I could go on; human rights agencies, such as ours, invite judicial review on questions of law, interpretation of words, questions of jurisdiction: there is direct appeal to the courts from our commission.
So the extent of my case is just this, that there should be some respect for the legislative choice which is uniform—and surely that is no accident across the country. Every jurisdiction has said that anti discrimination laws are not self enforcing. You require agencies with staff and you have got to deal with this in an area that the ordinary court cannot reach. They have not the facilities or the array of weaponry, if you like, and all I am asking is that the constitutional proposal not be blind to that uniform choice by governments of all three major parties across this country, but that the courts be invited to defer, not even to the extent of an exhaustion clause saying that the remedy provided by statute must be exhausted: but the language I propose—and I am not married to the words, but for what it is worth, the language I propose simply uses the word “sought”, which is to accomplish two things.
First, as I have tried to make out in my reather too long explanation of the Bliss and Leier cases, that that would give the court more information, if, and only if, it sought to decide what “sex” meant under the constitution, because it would have a fuller record and the matter would have been worked through the process of independent inquiry and a human rights statute.
Secondly, it would clearly give standing in the courts for the effective human rights agency as a friend of the court or perhaps as an intervening party to bring forward to the courts argument which, perhaps, counsel for the direct parties of interest might not, such as the array of cases I have referred to in the Leier decision, quite regretabbly. because the parallel was exact between the two interpretive challenges faced by the American courts and our own Supreme Court, the court went on quite in ignorance, at least from my reading of the judgment of those cases. So I think, again, there is no difference between us, and I wish to assure the Committee that these
questions have not been set up through Mr. Hnatyshyn’s mother.
Mr. Hnatyshyn: One short snapper, Mr. Chairman.
At the end of your presentation you endorsed the position taken by Mr. Fairweather in respect of Section 15(2) of the proposed Charter.
Do you subscribe to the position that has been put forward by Mr. Gordon Fairweather entirely, or is there any difference between your position on the antidiscrimination provisions to that presented by Mr. Fairweather?
Mr. Norman: Yes, there is a difference, and it was brought forward to this Committee in what I think was—and some members commented at the time—a remarkable brief presented to you on November 20 by the legal counsel, Mary Eberts, of the Advisory Council on the Status of Women. Although it did not emerge from the brief which was presented to you, it did emerge from subsequent questioning that her proposal of what she called the two-tiered method under Section 15(1) of having suspect categories and having a second level of discrimination which is undefined, but definable by the courts from time to time, so that the constitution can live and grow on the basis of unreasonable distinctions, what she said in response to members of this Committee—and I have forgotten to whom—was that she had attempted to take the spirit of what Mr. Fairweather had said and give it a little better, more juridical look in draftsmanship, because what the Canadian Human Rights Commission proposed to you was really quite an all or nothing proposition under Section 15(1) to the effect of either say nothing beyond the quality before the law and equal protection and then stop, because this is a constitution and it is for a very long time and you ought not to try to build in everything that strikes us as the best social policy today only to have it appear quite inadequate in a decade. Either do that, or, he said, put the list down and go as far as has been gone by the legislatures across this country.
What Mary Eberts said in her brief-and it strikes both Louise and I as a very good piece of legal work—was that that “either/or” proposition is not going to work and that the spirit of what Mr. Fairweather was seeking—and others have sought—to achieve is accomplished by having a double tier: one tier, those things which are a matter of great social movement brought about over long decades and which we would never want to go back on and with respect to which we have made promises in the international area, such as the United Nations Covenant on Civil and Political Rights and the signing of the Optional Protocol; nonderogable anti discrimination provisions having to do with race and religion, and, in her brief, she argued that sex ought to be added to that list as well—national or ethnic origin and colour. And then of that category, to say-and I do endorse counsel’s draft in this regard—discrimination in that category is suspect and ought not to stand unless there is a compelling interest for it to stand. I would cite in that regard our corrections exemption. Whether you approve or not of our decision, we cast it in just those terms, saying that this sex bar as it applies to the tight security jobs in the jails is necessary because there is a compelling interest having to do with the state interest in public decency.
Now, rightly or wrongly, whether you disagree or agree with our outcome, we are using that same test that she has put forward, and I think it makes a great deal of sense, because if you look at some of the newer heads of discrimination, such as age, or physical disability, it is clear that they cannot just be prescriptions.
I have never heard an argument that I thought was worthwhile to suggest that one could have a flat prohibition and say that we cannot apply a reasonableness test.
I think, therefore, the proposal of the Advisory Council on the Status of Women to the effect that these second tiered types of discrimination ought not to be enumerated, are subject to a test of reasonable distinction, is a very prudent suggestion and one which is workable from our position as administrators of statutory human rights agencies because that is what we are doing right now.
I will end with this, but take the age example, for instance; in Saskatchewan we have a very narrow provision, in my view and that of many who have petitioned the commission with regard to age. It is bracketed by the ages of 18 and 65.
The Joint Chairman (Senator Hays): Thank you.
Does that take care of your question?
Mr. Hnatyshyn: Yes, thank you very much. The question was a short snapper.
Mr. Norman: I apologize for the answer.
The Joint Chairman (Senator Hays): Mr. Benjamin, followed by Mr. Irwin.
Mr. Benjamin: Thank you, Mr. Chairman.
My first question, I guess, will be an extension of the last response of Mr. Norman’s.
Throughout the Saskatchewan Bill of Rights, there are a number of areas enumerated and singled out, for example, the right to engage in occupations, to purchase property, to rent accommodation, access to public areas, the right to education, notices, signs, publications, employment and employment agencies, membership in professional and trade associations, membership in trade unions, applications and advertisements for employment: all of these are singled out in the Saskatchewan Bill of Rights.
In your opinion, would this be a sort of second tier? What, in your opinion, would be the effect of enumerating all of these categories? Should we consider such an extensive categorization, given that you have such provisions in action in Saskatchewan?
Mr. Norman: Well, Mr. Benjamin, I think there is an enormous difference between legislative provisions and working in stone, as Parliament is now with regard to constitutional provisions.
It is best in a Charter of Rights, in my submission, not to get into too much detail, but to talk about the fundamental values which should, if the form of words is accurate, extend to and
embrace all of those things which we have in our legislation in Saskatchewan.
I see no reason, in a constitution, to talk about employment, accommodation, education, protection of the worker who joins a trade union or professional association. I think it is another kind of second tier and best left to the legislatures of this country and to Parliament to tinker with-and improve upon, I hope, from time to time, and develop.
Mr. Benjamin: Now, again, the Saskatchewan Bill of Rights prohibits discrimination because of race, creed, religion, colour, sex, marital status, physical disability, nationality, ancestry or place of origin, and our resolution as it is worded does not mention creed, marital status or physical disability.
Could you comment on the distinction between creed and religion, how the courts may view the absence of the word “creed”, or absence of the words “marital status”, or absence of the words “physical disability”?
Mr. Norman: To begin with, sir, I think that “creed” is redundant. I may stand corrected by lawyers around the room more able than I, but in my experience it has been interpreted, on those few occasions when it has been considered, to be coterminous with freedom of conscience, religion. So if I can set that aside, I do not think its absence has any significance that one should be wringing one’s hands over from the proposal.
Marital status, physical disability, and to those two could be added the categories which you have had advanced before you that exist in some jurisdictions that do not exist in Saskatchewan, and you have heard, of course, from organizations like the Mental Health Association seeking a further definition of disability beyond physical, to include forms of mental disability, retardation and so forth.
In my rather lengthy reply to Mr. Hnatyshyn’s question I tried to address that problem and I think, unless there is some other proposal that I am not aware of in my attempt to stay abreast of this Committee’s proceedings, the most sensible and workable response has been provided in the brief of the Advisory Council on the Status of Women. I am very uneasy personally about setting down in the constitution today’s list. We just held hearings in Saskatchewan on amendments to the code just last week. One group came forward, the Mental Health Association, in seeking to have that included in the code, and they gave a very interesting statistic. They said that in 1975, just five years ago, in the election they polled members of the legislative assembly and asked them: did they support the inclusion of physical disability in the code? The statistic they came up with was quite shocking; a very, very small number said yes. A very small number only five years ago.
Only two years ago the entire legislature unanimously supported the inclusion, so if that is any indication this field is
moving and progressing quite rapidly, and I think it would be a shame to draft an antidiscrimination provision in such a way as to impede the opportunity of an organization like the Association for the Mentally Retarded to achieve legislative gains because now they are facing a constitution which seems to say: you are out.
Senator Connolly: (inaudible).
Mr. Norman: Well, I am only saying they are making a very strong case in all jurisdictions to now be included in the legislation, and before you; I just cite them as a casein point.
The Joint Chairman (Senator Hays): Mr. Benjamin, go ahead.
Mr. Benjamin: Mr. Chairman, they want in, in terms of the Saskatchewan code?
Mr. Norman: Yes.
Mr. Benjamin: But you do not think it should be in the national constitution because it is for such a long period of time and in areas such as this there is a continuous progress and change?
Mr. Norman: In a nutshell, yes, sir, that is my position. I think it is better to have the two-tiered system and a broad invitation to the courts to consider questions of unreasonable distinction. I keep referring to Mary Eberts brief, but it did impress me. She gave an example on marital status, she said if you accept the language that was put forward by the advisory council, well then, it may well be that, I think she used the example of the drivers licence application which discriminated on the grounds of marital status, would be struck down in the courts, by the court saying that is not a reasonable distinction. So you have covered marital status without putting it in stone but not putting something else in stone such as economic status or such as mental disability or sexual orientation which only Quebec has had the courage to put forward into legislation to date.
Mr. Benjamin: I notice, too, there is another omission, as far as I can tell, the matter of political beliefs. I do not know if democratic socialism is a creed or not, or would be.
Mr. Epp: It is a combination.
Mr. Benjamin: What is your view as to incorporating or including the matter of political belief? There may be the right to belong but this is a nondiscrimination because of political beliefs, is that an area again that should be left up to Parlia- ment and legislatures through general law?
Mr. Norman: Well, again, I take the latter point. I think it ought not to be specified in a great list which strikes this Committee and then both Houses of Parliament as being right for today. I am sure it will not strike you as being right two or three, let alone five or ten years from now.
Mr. Benjamin: Mr. Chairman, I also wonder what your view is on this. The Canadian Civil Liberties Association, when they appeared before the Committee on November I8, suggested that Clause 25 of the resolution should be placed in front of the Charter to demonstrate to the courts that the Charter is over-riding. Would you agree with that?
Mr. Norman: Well, my views on Section 25 have been expressed to you very clearly the day before yesterday by the Canadian Bar Association and by the Civil Liberties Association, the Canadian Human Rights Commission, the Advisory Council on the Status of Women, and others. The problem I think is not with Section 25. If taking that alone, then, I think it is a matter of style. As long as there is paramountcy it does not much matter to me where you put it. It is the legal effect that counts rather than where it sits in the document.
Our paramountcy clause in the Saskatchewan Human Rights Code is buried in Section 44. So I think that is a matter of taste, but the difficulty is the interface of Section 25 with the opening words as they are presently worded, which I believe the Canadian Bar Association invited you to file in a wastebasket, and I think that would be a very good idea.
The Joint Chairman (Senator Hays): Thank you, Mr. Benjamin.
Mr. Benjamin: Thank you.
The Joint Chairman (Senator Hays): Mr. Irwin followed by Mr. Epp.
Mr. Irwin: Mr. Norman, it is a pleasure to have you here today and to hear the Saskatchewan point of view as far as human rights is concerned. I have long felt that if ever we should look at some province to copy, it would be Saskatchewan. You are very modest about what Ontario did but the 1947 Bill of Rights is considered the first Bill of Rights in Canada and it came from Saskatchewan, and when the Prime Minister acceded to the request on natural resources many of us thought it was a good idea because of what happened in the forestry industry, which was ours federally prior to 1930, and we just about destroyed it, the federal government, through burning and overcutting and it was turned over to Saskatchewan in 1930 and evolved into the Forest Commission of 1944, the forestry industry came back and all your different legislation in 1944 relating to cancer; 1945, mental cases; 1971, hospital premiums, I think we have much to learn about sharing and civil rights, and mostly it came from Saskatchewan.
Following from what Mr. Epp said yesterday about the right of the individual and the right of the group, where they mesh, I have long felt that if you are not prepared to support the right of the individual you would have a great deal of difficulty in supporting the right of the group, and this is shown in Saskatchewan where you have your Bible belt along the South and your religious groups into the North, between Saskatoon and Prince Albert. So it is very important that you are here and we have your ideas because you have a long line of experience.
Now, like Mr. Hnatyshyn, I had some difficulty in understanding whether you agree with entrenchment and I under-
stand that you do clearly support entrenchment. Now, is it a fair statement that you look on this national constitution as a statement of minimum standards, and that the provinces and the federal legislations would augment these minimum standards, these minimum rights, as experience comes to us?
Mr. Norman: That should be the case. I do hope the words convey that. I cannot imagine why in the world one would not want to leave Parliament in Ottawa and the legislative assemblies free to expand upon the basic values or, in your words, standards, which are being put to paper in the Charter of Rights.
Mr. Irwin: Well, let me reword that. Section 15 provides nondiscrimination because of race. national or ethnic origin, colour, religion, age or sex. I take it these are the minimum rights that you would expect in a country such as ours and that we would step this from there?
Mr. Norman: Yes. I think I would rather put emphasis on the introductory words, saying that the minimum value that we are addressing in the antidiscrimination provision is equality in law, which embraces both equality before the law and equal protection of the law, and then where you go from there is a matter of draftsmanship. In the present Charter, Section 15 as it stands, those listed categories, I would agree with you, should be treated as minimum categories although, as I have indicated, particularly with regard to age, there is need for some considerable attention as to how that plain prohibition is going to actually be implemented by commissions such as ours when there is all sorts of legislation on the books which perhaps quite rightly draws distinctions on the ground of age, particularly for minors.
Ms. Louise Simard (Deputy Chief Commissioner, Saskatchewan Human Rights Commission): Mr. Irwin, if I may add to that as well, I would like to say that I think Section I5 as it is presently worded does present a difficulty and it may also make it impossible, for example, with respect to sex, for a legislature to enlarge on the definition of sex if we have a Supreme Court decision such as the Bliss decision because, for example, if the Charter is entrenched it then becomes part of our constitution and in that Charter the Supreme Court would be given the final say. If the Supreme Court interprets sex as not including pregnancy or pregnancy related illnesses, then I do not think it would be open to a province to legislate in that area.
Mr. Irwin: Let me deal with that. I am afraid I agree with Mr. Hnatyshyn on this, there can only be one Supreme Court of Canada, and I look on the Human Rights Commissions as complementary to the Supreme Court. There can only be one body, whether it is the Human Rights Commission of Saskatchewan or the Supreme Court of Canada, who will make final decisions.
On the other hand, I agree with you, I do not expect the Supreme Court to run around enforcing or holding hearings because I do not anticipate it will be neighbour A going against neighbour B, it will be employee A going against big
company B or transportation commission C. So, if we do not have human rights commissions then there would be very little or minimal enforcement and I cannot see everyone who is wronged running to the Supreme Court. For one thing, they cannot afford it.
However, on the other hand, you may have your differences with the Supreme Court of Canada but the problem is changing the law, not changing who is going to have the ultimate jurisdiction.
Ms. Simard: I think if it is intended, and I believe in a pamphlet that was recently put out on the constitution, it says that there is nothing in the Charter that prevents a legislature from adding to our rights or increasing their protection and I would suggest that that is not exactly the case because, for example, of our experience in Saskatchewan with an increase of rights under the definition of sex, that if we do not have the power to do that because the Supreme Court of Canada has made a decision that it does not include pregnancy nor preg nancy related illnesses, then by all means our ability or the ability of a provincial legislature to move in the area and to add to the rights has been limited.
Mr. Irwin: Well, I do not want to get into an argument with you but you want the power to legislate that you do not even have now. You only have power if the Province of Saskatche’ wan wants to approve your regulations.
Ms. Simard: Yes, that is right.
Mr. Irwin: I do not want to get into that. We could spend hours on that particular point. I want to get into substance because I only have a very few minutes.
Now, another man from Saskatchewan, a former Prime Minister, John Diefenbaker, has said at 254 of one of his volumes of One Canada:
A Bill of Rights for Canada is the only way in which to stop the march on the part of the government towards arbitrary power, and to curb the arrogance of men “clad in little brief authority” . . . Some say that it is unnecessary and our unwritten constitutional rights protect us. They have not in the past.
Would you agree with that?
Ms. Simard: I am sorry, would you repeat that?
Mr. Irwin: Would you agree with Mr. Diefenbaker’s last statement:
Some say it is unnecessary and our unwritten constitutional rights protect us. They have not in the past.
Would you agree with that?
Ms. Simard: That unwritten constitutional rights—I am sorry, I cannot hear you very well.
Mr. Irwin: Mr. Diefenbaker says in his book that:
Some say it is unnecessary and our unwritten constitutional rights protect us. They have not in the past.
Would you agree with that statement?
Ms. Simard: I think, yes. I think that is probably true.
Mr. Irwin: It goes on to say:
There are others who claim the Parliament of Canada cannot pass laws to preserve the constitutional freedom of Canadians. If that be true, then Canadian citizenship is a provincial variable. There will be nine kinds of Canadians in Canada whose freedoms will be based on the home address of each of us. If that contention be true, Canadian unity is a meaningless term . . .
Now, I think he is saying the same thing, that there should be one minimum set of national rights. Now, that is my own interpretation but take whatever you want. Taking what he said, would you agree with what he said?
Miss Simard: Yes. I do not think we are arguing here that we should not have an entrenched charter of rights. I think what we are really talking about is what form it should take and I agree, yes, we should have basic minimum rights.
Mr. Irwin: Just one last question. You say that physically handicapped, mentally handicapped should be on, I think you called it a tier system. Many people have come before us and said unequivocally the physically handicapped should be in the Charter, but I think your experience is important. You are suggesting there are different types of rights that the physically handicapped have and we have to look at each one and what is reasonable. I put to you that maybe it is a good idea to put the right to employment of the physically and mentally handicapped in the federal charter and leave the right to services and so on to the human rights charters?
Mr. Norman: Well, sir, I think that, as in my response to Mr. Benjamin on the question of the Charter, it is a constitutional document getting down to the detail of talking about a work place as distinguished from services or accomodation. I think that is a step in the wrong direction because even the work place alone, every human rights law in this country that deals with physical disability, and certainly those laws when they deal with mental disability, we have heard so from the Association of Mentally Retarded in their briefs to us as recently as last Friday, necessarily needs to have a reasonableness distinction standard because we have in this country all sorts of special employment provisions for people with multiple handicaps and disabilities, and they need to be addressed in a sensitive way by an agency or agencies, departments of labour included with human rights agencies, and I think to simply have a clear prescription is to invite the court to wonder what in the world to do with that, because it seems to be an invitation to upset a number of apple carts that have been put together by every government.
Mr. Irwin: Thank you, Mr. Norman, your remarks have been informative.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Irwin. Mr. Epp.
Mr. Epp: Thank you, Mr, Chairman.
Mr. Norman, I would like to pursue with you the position you have put forward this morning, which, I must admit, finds a lot of support in my thinking. Namely, the need to look at fundamental rights, rights which we in the past have taken for granted because of convention and precedents that have taken us to this point in time, and yet, on the other hand, while wanting to protect and advance rights, have difficulty in terms of writing down those rights, always having the fear that as the matter is fluid, as this matter is advancing and as society is developing, that whether in fact that action is protecting rights or restricting rights, And I guess that is, for a lot of us Committee members, is one of the difficulties that we face.
I know that you are independent from the Government of Saskatchewan and in no way am I trying to cast a light or shadow that you are not, but it seems to me that your coming at this question—let me put it this way: it seems to me that you are arriving at the same point as the Premier of Saskatchcwan did at the First Ministers’ conference, but you are arriving at that point from opposite directions, and if I could just explain for a moment, If I recall his testimony or his position at the time, it was that basically he was opposed to an entrenched bill of rights. For example, he mentioned the matter of can you in fact legislate Lord’s Day Act legislation and could that not be regarded as removal of rights by those whose faith would not be in keeping the Lord’s Day Act legislation. If I recall his testimony or his position at the time, it was that while he opposed entrenchment because of these fears, fears that are similar to the ones that you have expressed today I would suggest, he did mention that there are certain fundamental freedoms which we take for granted, as I said earlier, in a democratic, parliamentary system form of government, that entrenchment in those areas would not create the difficulties that he saw if you entrenched in the areas of, possibly for lack of a better word, in areas of policy, and I would like you to comment on whether that is not the position you have arrived at but from almost an opposite end.
It seems to me, as you have been discussing this with us today, the approach of reasonableness weighs very heavily on you and I take it that is because of the experience you and your fellow commissioners had on the Saskatchewan Human Rights Commission?
Mr. Norman: Yes. Well, thank you, Mr. Epp, for the question. I find it a strange notion to contemplate that the position which we have advanced before you happens to coincide with that of the Premier of the Province of Saskatchewan, albeit . . .
Mr. Epp: I am not putting words in his mouth nor asking you to put yours into his.
Mr. Norman: What strikes me as strange about that is that, to my knowledge, Premier Blakeney has in his support of fundamental freedoms been rather careful about his use of that phrase as a term of art meaning speech, press, assembly, conscience, the basic Diefenbaker Bill type fundamental freedoms, civil liberties if you like.
What we are speaking to exclusively in our presentation to you are nondiscrimination rights, race, religion, sex, national origin, colour, and so there is indeed a considerable difference, quite a considerable difference I think, that I can only suggest that the gulf between the anti discrimination rights and the fundamental freedoms, the civil liberties issue, is so great that it is what propelled me to send my telegram asking that you consider inviting me here to give you an opportunity out of our experience and to talk a bit about our history in Canada with regard to antidiscrimination, to show you how different this area is, how difficult it is, and where Section 15 leaves us if it is left in the shape that it is in.
That is, I think, to make a point which is quite different and indeed would be quite apart from the position that Premier Blakeney would take on that subject, I think you would perhaps accurately characterize his view on anti discrimination issues as at least as expressed at the conference to which you refer, as being matters of policy best left to the legislative assemblies and to Parliament.
Mr. Epp: As the Chief Commissioner of the Saskatchewan Human Rights Commission and based on your experience, would you feel that the work that you are responsible for, that you are delegated for through the legislature in Saskatchewan, that if this Committee would recommend an entrenchment along the lines of the 1960 Bill of Rights as well as having in place the Canadian Human Rights Legislation in its present from, notwithstanding the section on immigration and the Indian Act, two exemptions which I do not think should have been allowed by the government but they have insisted to date that they remain there, that if the human rights legislation were modified along the lines or similar lines as I have suggested, as well as the human rights legislation that is now in place in the provinces, would you feel that because the secondary is evolving, is developing, that your work as Human Rights Commissioner could in fact go forward?
Mr. Norman: Let me give a two-fold response Firstly, I think it would be more marvellous to have even the Diefenbaker Bill entrenched, but in my remarks with regard to anti discrimination provisions I did not hope to leave with you the impression that issues such as race have anywhere to evolve; I think that is a matter which, in our commitment to the International Convention . . .
Mr. Epp: I am sorry for interrupting, I am not trying to be rude. That is part of my difficulty with Section 15. I do not have difficulty with race, I believe that society has judged on that concept. That is not my argument. My argument is ith the others that are evolving, it is a mixed bag, Section 15. There are components that society has judged on and that is not my difficulty. My difficulty is with the ones that are still evolving.
Mr. Norman: Yes, indeed. Well, as I indicated to you I think the two-tiered approach does address that problem in a sensitive and prudent way and it is the best approach.
Mr. Epp: Thank you.
The Joint Chairman (Senator Hays): Thank you very much. Mr. Mackasey.
Mr. Mackasey: I have nothing to say.
The Joint Chairman (Senator Hays): I should like at this time to, on behalf of the honourable members around this table, thank you very much, Mr. Norman and Miss Simard, for being here and giving us your brief and your wisdom.
Thank you very much.
Mr. Norman: Thank you, Senator. Thank you all.
Miss Simard: Thank you.
The Joint Chairman (Senator Hays): On Monday evening we will, at 8 o’clock, have the Canadian Federation of Civil Liberties and Human Rights Association here, and until that time this meeting is adjourned.
From Saskatchewan Human Rights Commission:
Mr. Ken Norman, Chief Commissioner;
Ms. Louise Simard, Deputy Chief Commissioner.