Document Information

Date: 1980-12-08
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 21 (8 December 1980).
Other formats: Click here to view the original document (PDF).

Click here to view the original document (PDF).

SENATE
HOUSE OF COMMONS

Issue No. 21

Monday, December 8, 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

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:

Beaubien
Connolly
Guay
Lapointe
Lucier
Murray
Petten
Roblin
Rousseau—(10)

Representing the House of Commons:

Messrs.

Miss Campbell (South West Nova)
Corbin
Côté (Mrs.)
Gimaiel
Hawkes
Irwin
Kilgour
Lapierre
MacDonald (Miss)
Mackasey
McGrath
Nystrom
Robinson (Burnaby)
Speyer—(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 Monday, December 8, 1980:

Mr. Côté replaced Mr. Bockstael;
Mr. Gimaiel replaced Mr. Allmand;
Miss Campbell (South West Nova) replaced Mrs. Hervieux-Payette;
Mr. Speyer replaced Mr. Crombie;
Miss MacDonald replaced Mr. Hnatyshyn.

Pursuant to an order of the Senate adopted November 5, 1980:

On Monday, December 8, 1980;

Senator Lapointe replaced Senator Molgat;
Senator Guay replaced Senator Cameron;

[Page 3]

Senator Murray replaced Senator Tremblay;
Senator Rousseau replaced Senator Lamontagne;
Senator Petten replaced Senator Cottreau;
Senator Roblin replaced Senator Yuzyk.

[Page 4]

MINUTES OF PROCEEDINGS

MONDAY, DECEMBER 8, 1980
(37)

[Translation]

The Special Joint Committee on the Constitution of Canada met et 8:06 pm. this day, the Joint Chairman. Mr. Joyal. presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Connolly, Guay, Lapointe, Lucier, Murray. Petten, Roblin and Rousseau.

Representing the House of Commons: Miss Campbell (South West Nova), Mr. Corbin, Mrs. Côté, Messrs. Gimaiel, Irwin, Joyal, Kilgour, Lapierre, Miss MacDonald, Messrs. Mackasey, McGrath, Nystrom, Robinson (Burnaby) and Speyer.

Other Member present: Mr. Hawkes.

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. Louis Massicotte, Researcher.

Witnesses: From the Canadian Federation of Civil Liberties and Human Rights Associations: Mr. Edwin Webking, Chairman; Mr. Norman Whalen, Vice-Chairman and Mr. Gilles Tardif, Director. From the Canadian Council on Children and Youth: Mr. Andrew Cohen, Executive Director; Mr. David Cruickshank. Vice-President; Mr. Joseph Ryant, Board Member.

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.)

Messrs. Webking, Whalen and Tardif made statements and answered questions.

Messrs. Cohen, Cruickshank and Ryant made statements and answered questions.

At 10:37 o’clock p.m.. the Committee adjourned to the call of the Chair.

Paul Bélisle
Richard Prégent

Joint Clerks of the Committee

[Page 5]

EVIDENCE

(Recorded by Electronic Apparatus)
Monday, December 8, 1980

[Translation]

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

I would like to invite the media representatives with recording equipment to leave the room so we can start.

[Text]

It is my pleasure tonight, on behalf of honourable members of this Committee, to welcome the Canadian Federation of Civil Liberties and Human Rights Associations.

We have with us tonight as guests, Mr. Edwin Webking, Chairman, and Mr. Norman Whalen, Vice-Chairman, and Mr. Gilles Tardif, Director.

I understand, Mr. Webking, you will open our discussion tonight and that after your statement you will be agreeable to receiving questions from honourable members of this Committee.

Mr. Edwin Webking (Chairman, Canadian Federation of Civil Liberties and Human Rights Associations): Thank you.

The Canadian Federation of Civil Liberties and Human Rights Associations appreciate this opportunity to present its views to the Committee arising from the proposed constitution as to both procedure and content.

I would like just briefly to outline the events which have led us up to where we are today. ln our annual meeting held at Charlottetown on October 24 to 26 of this year, the delegates, representing the members of the Canadian Federation of Civil Liberties and Human Rights Associations, paid very special attention to the question of constitutional reform in Canada.

During the course of a special debate held on the proposed constitution act of 1980, the delegates emphasized the importance of popular participation in constitutional change, and at the end the assembly requested the federal government to circulate or otherwise make easily available its proposed constitutional act of 1980 to the citizens of Canada, and in pursuit of the concept of participation, the Federation has struck a special committee to go over the proposed constitution act of 1980 and offer its amendments, suggestions and reactions to the proposed act of 1980 from the government.

The Committee, which was headed by Mr. Norman Whalen as Chairman, worked on this brief over a period of several weeks, and it is our pleasure tonight to present the outcome of our deliberations to you.

I would like to stress that these represent the views of Civil Liberties Associations all across Canada; our organization is an umbrella organization for Civil Liberties and Human Rights Associations all the way from Newfoundland to British Columbia.

We represent many, many organizations, in between those two boundaries.

[Page 6]

Mr. Whalen will present the summary of our brief and Mr. Tardif will give you a conclusion in French.

Mr. Whalen.

Mr. Norman Whalen (Vice-Chairman, Canadian Federation of Civil Liberties and Human Rights Associations): Mr. Chairman, although the Federation favours both patriation of the constitution and entrenchment of a Charter of Rights, they cannot support either the procedure adopted by the government, unilateral action, or the content of the proposed Charter of Rights.

We appreciate that the constitutional process has been on-going, as between the federal government and the various provinces, for many years. This fact. however, does not, in our mind, justify the haste with which this important legislation is being advanced.

From a practical point of view, the Charter falls far short of Canada’s internal and international obligations. It does not adequately deal with the issue of native rights or the preservation of existing native rights. It inadequately addresses the question of reciprocal language rights.

In our written presentation, Mr. Chairman, we review on a clause-by-clause basis the inadequacies of the Charter, and we will refer to some of these later.

First, however, we are compelled to deal with what we view as the improper means by which Parliament chooses to do unilaterally what it could not achieve by consent.

We accept that complete unanimity with the provinces may well be impossible, and that action must take place.

However, Parliament must find legitimacy for the proposed constitution in the people of Canada.

The recital on page 12 of the proposed resolution read and I quote:

Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom . . .

We find this statement to be misleading, as we see no evidence of this consent from the people of Canada, although, given the opportunity, following full discussion and amendment, it may well be forthcoming. We would like to think it would be forthcoming.

We cannot accept that the end justifies the means. A democratic country cannot be conceived by any other than a democratic act; therefore consent must be obtained either from the premiers, from the people of Canada through either a referendum or a general election on this specific issue, or by other means which clearly reflects the approval of the people of Canada.

Mr. Chairman, the serious structural limitations which occur repeatedly through this bill find first expression in Section 1 of the Charter. The limiting provision of this section is so general as to permit, if not cause, the certain failure of everything which the Charter sets out to achieve. If this is poor

[Page 7]

drafting, then it must be improved. If, however, it is the clear expression of the will of its creators, then they have a view of entrenchment which we will submit does not find reflection in the popular will of Canadians.

If the rights set out in the Charter are subject to the limits stipulated in Section I then Parliament acting alone will always have supremacy over the Charter, effectively denying what the Charter proposes to create—entrenchment.

Following Section 7 which appears to set a very high and noble tone, Sections 8, 9, 10(c) and 11(d) are drafted in such a way as to render them seriously inadequate.

Each is subject to parliamentary change. As an example, Section 8 provides that—and I quote:

8. Everyone has the right not to be subjected to search or seizure except on grounds, and in accordance with procedures, established by law.

Parliament, acting alone, can establish the procedure for search and seizure. The protection which entrenchment in a constitution should offer would thereby be denied. We have recommended, Mr. Chairman that in each of these sections the limiting words:

and in accordance with procedures, established by law.

should be replaced by the wording used in Section 7 of the Charter:

except in accordance with the principles of fundamental justice.

This would mean that, while Parliament could make the changes in each of these areas from time to time, these changes would always have to be in conformity with the principles of fundamental justice. The Supreme Court would set this standard, and each legislature and the Parliament of Canada would have to meet them.

Thus, only by amending the constitution would Parliament or a legislature be able to change the standard of protection which is provided in the Charter.

This, Mr. Chairman, is the type of entrenchment which, in our view, is essential, if the Charter of Rights is to have any meaning whatever.

Apart from these serious faults, the Charter has not moved forward in any positive way to establish new rights which one would have hoped for in a document of this nature.

We would have liked to see included under the heading legal rights, the right to remain silent, the right to retain and instruct counsel in private, the right to have counsel present during questioning and the right to legal aid, as well as the right to be informed immediately upon arrest of each of the rights listed above.

Mr. Chairman, the protection ostensibly offered by Section 13 in relation to self-incrimination, falls far short of the

[Page 8]

standard accepted in the United States and will still permit the continuation of certain abuses in Canadian courts.

The haste with which this document appears to have been drafted is reflected in Section 10(c) and Section 11(c) of the Charter. Section 10(c) omits to relate to the normal release from detention by bail provisions which are used in the vast number of cases in Canada and refers only to habeas corpus which is rarely used. Section 11(c) provides for trial by an impartial trubunal, omitting reference to the jury system which is at the foundation of the criminal justice system in Canada.

Mr. Chairman, there are other areas which we believe are inadequate in the Charter of Rights relating to the criminal justice system. These are outlined in more detail in our written brief. We find in particular, Mr. Chairman, that the rights against discrimination as set out in Section 15(1) are seriously lacking in two respects.

First, the list enumerated is not exclusive. For this reason we recommend that no list be attached, thereby prohibiting discrimination on any basis.

Secondly, apart from the right to equality before the law, we would submit that everyone should have the right to equality of service as well as to equality before the law. We would suggest that the provision of equality of service would go a long way tawards establishing the rights of the handicapped, minority groups and other disadvantaged groups or persons.

We have not found, Mr. Chairman, support in our organization for the limitations established in this bill in Sections 20 and 23 under language rights. We cannot accept that the right to bilingual services or bilingual education should only exist where numbers warrant. This limitation provides too easy an exception and would render the provision of both bilingual services and educational opportunities throughout Canada much more difficult to obtain than would otherwise be the case.

Mr. Chairman, as you are aware, there is particular concern in the Indian community throughout Canada today that this bill will seriously jeopardize their rights. This concern we believe is legitimate. We think that the Government of Canada should assure the native peoples that their rights will be protected and that nothing in this proposed constitution will abrogate these rights. We have, accordingly, recommended that Section 24 be redrafted to ensure that this protection is provided.

Apart from the native peoples and the bicultural nature of Canada, there are many other linguistic, ethnic and religious communities which make up the mosaic of this great nation. We believe that reference should be made to this fact in our constitution. We also believe that guarantees should be established to encourage and enhance the rights of these peoples to fully determine their social and political status within Canada, and to fully pursue their economic, social and cultural development. To confirm these rights at this time would be to confirm

[Page 9]

the strength of this nation which is nourished and sustained by its very diversity.

Now, Mr. Chairman, on this particular point, as Mr. Webking indicated, our organization is an umbrella group, and one of our member organizations, La Ligue, in the Province of Quebec, has asked that we express their disagreement with the inclusion of the words “within Canada” in that submission. While voicing that rider, we would still like to express that it is the view of the Federation of Civil Liberties that the expression of this diversity should be within Canada.

Mr. Chairman, there is a danger that this bill could be viewed as an expression by the Canadian government of its nonconfidence in the people of Canada, Canadians, we believe, will support a strong and clear statement in a constitution of rules to govern both the people and the government.

We have found, Mr. Chairman, that this bill is inadequate. Section 7 alone reveals a bold initiative. This one section may move us one small step forward in our search for rights and freedoms, We cannot accept, however, that this is the best that we as Canadians can do.

Thank you, Mr. Chairman.

[Translation]

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

Mr. Gilles Tardif (Director, Canadian Federation of Civil Liberties and Human Rights Associations): Mr. Chairman. beyond our specific recommendations concerning the Charter of Rights and beyond the general principles of our introduction, we wish the Charter of Rights put the accent on positive action, as you say in English.

We also hope that the amendments recommended for Section 52 would result in the correction of this deficiency.

As for the constitutional process itself, we recommend the following changes at the procedural level.

First of all, that the calendar for constitutional reform be extended so that all Canadians can participate.

Secondly, that the government distribute to all Canadians the proposed resolution so that they be better informed.

Thirdly, that the Joint Committee of the Senate and the House of Commons on the Constitution travel everywhere in Canada and hold public hearings.

Fourthly, once this resolution has been amended and refined, that it be submitted to the approval of the Canadian people.

We would like to say to conclude that, failing to repatriate the constitution by democratic ways, the constitutional process be subject to challenge internally and externally.

This dramatic change in the constitution should be made according to democratic procedures and every effort should be

[Page 10]

made to assure this, in the same manner you have decided to extend these meetings next February.

Thank you very much.

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

For the first round, I would like to invite the hon. Duff Roblin, followed by Mr. Lorne Nystrom.

[Text]

I would remind the honourable members who are with us this evening for the first time that the first round is 10 minutes and the second round is five minutes, for each speaker. I take the liberty of reminding you of those, should I say, homemade rules, in order that we might have the maximum intervention with our witnesses tonight.

The honourable Senator Roblin.

Senator Roblin: Thank you. Mr. Chairman.

I am glad to express a warm welcome to the delegation that is before us tonight, which I am sure all members of the Committee would join in, because you have given us a thoughtful and challenging statement and I would like to explore with you the implications of some of the points that have been raised in your brief.

I gather from your opening statement that you do not think that way in which we are going about this constitutional business is a particularly democratic one. You make reference to the fact that unilateral action on the part of the federal government alone in proposing these constitutional changes is really not the best way to go about it, and I notice that you stress the necessity of finding a process which has the characteristic fo legitimacy, and I suppose you are using that word in the broad meaning of the expression as perhaps to be constitutionaly appropriate.

Would that be your feeling about legitimacy or have you some other definition you would like to offer?

Mr. Webking: Well, I am going to be speaking in the dual capacity now in my position as President of the Federation but also as a political scientist, and I think that when we use the word “democratic” it is similar to an analogy referring to a eat. If someone says to you that, gee, there is a cat in the back alley and you run out and you are run over by a Caterpillar, you may have been looking for something else. So I think when we use the word “democracy” we have to be careful in what we mean.

What we are talking about is the broadest possible involvement of all those people in the body politic for whom the constitution is to be effective. That I think is our concept of legitimacy as well because if it is going to work and if it is going to have any kind of meaning, it has to be rooted in the popular support and there has to be some kind of mechanism for induvidual people to, if not to participate in the formulation of it, to at least have some kind of involvement in the final approval or in the final adoption of it. I think that is important for the document and it is important for the process of democracy as well.

Senator Roblin: I gather that you are really combining the two concepts of legitimacy and concensus as being of two parts

[Page 11]

that are necessary in making constitutional changes. I would take it that you think there should be consultation with the provinces, some form of concensus with respect to provincial reaction, in order to legitimatize the proceedings that we are engaged in?

Mr. Webking: Well, I think that, again, you might find a difference of opinion or interpretation as to what is meant by consultation with the provinces. Some might say that this means provincial government, but my own personal view here is that I think you can involve, you can have provincial consultation by involving the people in the provinces in the process and that is how you would get provincial consultation as well. I think it is important to involve the people, essentially.

Senator Roblin: I thank you for defining these terms for us. I think it is helpful. I wonder whether you would consider the consent of provincial governments to be necessary for constitutional legitimacy in this instance; if not unanimous consent certainly a very large degree of consensus.

Mr. Webking: I would not want to exclude that. I think the kind of consent process that I think would be useful and constructive would be one that involved the people and the governments as well, not just one or the other. I think both should be involved, if possible.

Senator Roblin: We are going to have a difficult question to examine in the near future I suspect and I am not sure whether you have a brief to talk to this and perhaps I should not ask you your opinion, but perhaps I will take a chance on it anyway. That is, the constitutional propriority of what we are doing is being challenged in the courts, as I am sure you are aware. Do you care to hazard an opinion as to what our attitude should be to that. Should we wait until those court proceedings are determined before we finalize our business here, or can we proceed without any concern about those constitutional challenges.

Mr. Webking: Based on what knowledge I have of constitutional procedures in other countries that have gone through constitution writing, I am not sure that the two cannot be persued on a parallel course. I do not think that one process needs stop while the other is taking place.

Senator Roblin: It might put us in a quandry if the courts ruled against the constitutional propriety of something that we had already done. That might be a bit of a problem.

Mr. Webking: Depending I suppose on what constitutional experts you are reading lately. The general feeling is that the process will be decided by the courts in favour of the government.

Senator Roblin: Which government?

Mr. Webking: The national government.

Senator Roblin: That may well be the case.

I want to deal with one of the very interesting points you made about the Charter of Rights, namely Section 15 in which you express some concern about the way in which that is set out, the language that is used. I would like to get your opinion on a possible change in the wording of that section. A recommendation has been made by one gentlemen that we do away

[Page 12]

with the particular list of rights that are shown in there and use a more general phrase, and perhaps, it is not too long, you might be interested in hearing this proposal. The wording should be: the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits as are justifiable in a free and democratic society.

Without getting into any detail, would you hazard a view as to whether that was a more desirable wording than the one we have before us now or whether you think that that proposal still has its drawbacks.

Mr. Webking: If I were given the choice between the two, the one you just read and the one we are proposing, I think I would prefer the one we are proposing.

It seems to me that there are going to be limits but to have limits specified in a charter which is supposed to be entrenched then gives those limits a special prominence that they might not have. I think, for example, the difficulty with itemizing those areas that are proposed in the document itself, that is the government’s document, it seems to me that if it is not listed there therefore it is not protected. I do not see anything wrong, for example, with saying that everyone has the right to equality before the law and equality of services without discrimination. If what you want is not to discriminate then just say that, we are not going to discriminate, period. It seems to me that takes care of everybody and everything.

Senator Roblin: I think that is a pretty good concept that you have there, I must say.

Moving on to another area, language rights, the way the bill is written now it seems to me that language rights depends on the language history of the child, it depends on a language test and I think it depends on whether the child is still fluent in the language that it originally learned.

I have often wondered whether we could change that principle and have the principle of parental choice used instead of language test.

Would you feel there was any merit in that or do you think the bill is satisfactory the way it stands? I realize there are certain complications with going to parental choice but in terms of theory which would be the most desirable.

Mr. Webking: I would like Mr. Whalen and Mr. Tardif to respond to this as well but my own feeling would be that I think again I see parental choice as a limitation of some sort and being in an area that is predominantly anglophone I know the kinds of pressure that francophone parents are subjected to and the kind of pressures that they then subject their children to, and I am not convinced that ‘in the long run this is in the best interest of the child.

I feel that if it were left up to parental choice then you are subjecting the child to pressures that the parent becomes subjected to, or feels intensely, and I am not sure that that is in the best interest of the child.

Senator Roblin: It is an interesting point because in my own provinces of Manitoba some people there think that to use the language test as opposed to parental choice would actually limit the availability of French language instruction in my

[Page 13]

province, so I have some concern about it. I see the point you are making, though.

Mr. Webking: Yes.

Senator Roblin: On page 6 of your brief you make an interesting comment on the necessity of enlarging the rights given to minorities. I think probably we are thinking basically of native peoples, but I think your brief includes others besides those.

You use the phrase that they should determine their social and political status within Canada and you have explained that not all of your people agree with this “within Canada” but my point is in connection with the wording “political status”.

In terms of an ethnic minority what does political status mean in Canada? What are you driving at here?

Mr. Webking: I would again have to relate my own experience in Alberta. For example, I would consider political status the right for a cultural minority or linguistic minority to have a community center, something of that sort, and I would consider that to be within the concept of the word political. I know that in Alberta and in the area that I live in it has been very difficult. So far we have only one of these centers and I know that there is interest on the part of two other minority groups, but they just simply do not have the opportunity to do that. I think this is the approach that we are interested in.

The Joint Chairman (Mr. Joyal): Thank you, Senator Roblin. I would like now to call Mr. Svend Robinson, followed by the honourable Bryce Mackasey Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

I am sorry I was not here for the initial part of your presentation but I have read your brief and I commend you for it. It is an excellent brief put together in a very short time, obviously, in view of the deadline that was imposed upon you.

I have a number of questions relating to specific points that were raised in the brief, but before I get to them, I have a couple of broader questions in terms of the process, and you have commented on the process yourselves. You make a suggestion which I find rather interesting in your brief at page 8 that following amendments to the bill it be submitted to the people of Canada for approval. I submit that means a referendum of some form; at least that is my understanding of it.

One of the concerns that has been expressed by a number of witnesses before this Committee is that by permitting the Charter of Rights provisions in the proposed constitutional package to be amended by referendum, that in a sense you are negating the purpose of a charter of rights. A charter of rights is supposed to protect minorities and a referendum requires a majority vote to negate those rights.

First of all I should ask do you accept that principle, and if you accept that principle, how do reconcile it with your recommendation in point 4 that this bill should be submitted to the people of Canada, as you put it, for approval.

[Page 14]

Mr. Webking: I do not think it was intended that a referendum was the only alternative we thought about. There were a number of other methods that could be pursued. One suggestion I think that one of the members of the Committee made was that perhaps it might be part of an election. I agree there is concern, and I think what we are concerned about here is that the people have some kind of an input into accepting this particular bill.

My own feeling is that based on the observations that I have made and some of the informal research I have done on this, that the people are in favour and they want to protect the minorities, they want to protect the disadvantaged. There is not a problem with this. I think if some sort of a process can be worked out where the people have a say in it, some feeling of participation, they will then be more committed to honouring the Charter than they would if it were viewed as being simply imposed upon them as something that they had no participation or involvement in.

Mr. Robinson: I do not know whether you have given specific attention to the point I raised earlier. I take it, though, that you would share the concern expressed by some that following the passage of the Charter of Rights that it should not be able to be changed by a simple majority at any given time. Would you agree with that?

Mr. Webking: Right. It should have paramountcy, and paramountcy in my opinion is something which takes it a little above the ordinary methods of amending legislation and it becomes a little more difficult to amend.

Mr. Robinson: You have relied very heavily on the concept of fundamental justice in your brief, and at page 7 you refer to it in Section 7, revealing bold initiative.

Again this is something of a new course which has not been embarked upon by any of the previous witnesses.

In fact there has been some criticism of the inclusion of the words “fundamental justice”, because we are embarking upon new waters, as it were, to the best of my knowledge and that of some of the previous witnesses, in that there has not been any significant judicial determination as to what we mean by the concept of fundamental justice.

For example, you have suggested that Sections 8. 9, 10(c) and 11 should rely on that principle of fundamental justice.

Now, what does that mean, and why do you believe this concept is one which will adequately protect the important rights which we are dealing with in these particular sections?

Mr. Whalen: First of all, we agree with you that the concept of fundamental justice does not have a basis in judicial interpretation.

However, we believe it will attain an interpretation similar to the concept of natural justice.

We have indicated in our brief that, to this extent, we are going to have to rely upon the courts to determine what that will mean.

However, we are satisfied that whatever ultimately it is determined to mean, it will fall within the general area of

[Page 15]

natural justice. That is an awful lot better than the phraseology used in Sections 8 and 9 which is “as established by law”, which will permit Parliament to change the law by a simple majority of the House of Commons whenever they felt like it.

We have every cofidence in the Supreme court of Canada when we say that.

Mr. Robinson: I appreciate that. I am not sure it is entirely well placed in view of their record in interpreting some words.

Mr. Whalen: There will be new judges.

Mr. Robinson: You do rely upon the concept of fundamental justice; for example, in the proposed changes to Section 11(c). You have indicated in your summary brief at page 4-quite properly, I believe—that there has to be reference to the jury system as one of the cornerstones of the Canadian criminal justice system.

However, in your proposed wording you make no reference whatever to the jury system.

I would suggest to you that, rather than leaving it to the courts to decide whether or not the principle of fundamental justice in fact includes the right to trial by jury, then perhaps it would be better making explicit reference to trial by jury.

Mr. Whalen: Yes, I would agree with that.

The jury system should be placed in there. particularly since there was a recent move in the House of Commons some years ago to limit the number of instances in which a person was entitled to trial by jury.

Mr. Robinson: So it would be better to specifically refer to the right to trial by jury?

Mr. Whalen: Yes. I feel confident that the concept of fundamental justice includes the right to trial by jury; but it may, in fact, be better to include that reference.

Mr. Robinson: Thank you.

A number of other recommendations you have made on more specific points: first of all, dealing—and I must say in passing that I am glad to hear you making a reference to the importance of the right to remain silent, which is, again, one of the cornerstones of the Canadian criminal justice system, and I hope the Committee sees fit to include an amendment to that effect.

You made a reference, which was not dealt with in your oral submission, to the proposed Section 13 which in turn would be related to Section 26, suggesting that—and I quote:

13. (b) Illegally obtained evidence shall not be admissable in any judicial proceeding.

Now, there have been recommendations going along that road by other gorups, including the Canadian Civil Liberties Association.

[Page 16]

I wonder if you could explain to the Committee why you believe Section 13 should be amended to that effect, and presumably the implication would be that Section 26 would be repealed and would not be included in the package.

Why do you believe that this type of evidence should in fact not be admissible at all, and would you care to comment on the suggestion made by some that, at the very least, there should be a discretion in the hands of the court to exclude evidence the admission of which would tend to bring the administration of justice into disrepute?

Mr. Whalen: Well, as you are aware, that is the present test, and it is very rarely used.

It is in very rare cases that a court will say “This will bring the administration of justice into disrepute.”

Mr. Robinson: I would like to stop you for a moment there. With respect, that is not the present test, because there is no discretion in Canada to exclude evidence which would tend to bring the administration of justice into disrepute.

Mr. Whalen: Well, we are getting into a legal argument. I know of cases where it has. Maybe the inferior courts were wrong in administering that test; but the magistrates court level that I am aware of has done it . . . It may well be that if there was an appeal a decision of that sort might have been overturned. In any event, I will accept your ruling.

But what we are suggesting—and I would just like to read from page 13 of our written brief:

The acceptance by any court of evidence which has been obtained illegally, permits and to some degree encourages law officials to break the law to convict another of breaking the law. This is not philosophically or morally sound.

Now, that is the basis of our rooting for it. It just is not morally or legally sound to permit one individual to break the law to convict another of breaking the law. I think it is even more reprehensible when the second person breaking the law is a law official.

Mr. Robinson: So you believe it should be excluded entirely?

Mr. Whalen: Yes, entirely.

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

The honourable Bryce Mackasey.

Mr. Mackasey: Thank you, Mr. Joint Chairman.

I would like, for the record, if I may after the meeting ask you. gentlemen, if we could have a list of the member organizations and affiliated groups, simply because I recognize that you have a very broad base, and it would be useful for the Committee if we knew the groups which were affiliated with yours.

[Page 17]

Have any of your individual groups appeared before us as yet?

Mr. Webking: No.

Mr. Mackasey: You have, no doubt, read the briefs of other civil liberties organizations. Is there anything in your brief which varies or contradicts in any respect anything in the others? Is there any recommendation in your brief opposed to that presented, for instance, by Professor Tarnopolsky?

Mr. Whalen: I do not think we would go, in many respects, as far as he does; but we very much support the brief submitted by Mr. Gordon Fairweather in every respect.

Mr. Mackasey: Well, I agree with you that he was quite a witness. I would say to you that the representations of virtually all the organizations on Section 1 have resulted, of course, in the Committee agreeing that Section I certainly needs revamping, to say the least, in its present form, and it would render all the good intentions of the Charter superfluous and null and void.

That is the purpose of our hearings, really, not to argue with the witnesses, but to get your viewpoint.

If I had an argument as a politician, I suppose, it would be in your categorical denounciation of the methods by which we are proceeding. I recognize your acumen in refusing to let Senator Manning bring you all the way down the line. It is a characteristic of some of us, including ourselves, to lead the witnesses into areas that they are not expert on. For instance, does any one of your group consider himself to be a Constitutional expert?

Mr. Whalen: I do not.

Mr. Mackasey: I do not myself.

Mr. Webking: I have had some involvement in working in another country or the development of several constitutions.

Mr. Mackasey: But when you expressed the opinion that the court would probably rule in favour of the government, that was just your own personal opinion?

Mr. Webking: Not necessarily. I would say it was based upon British parliamentary courts and common law as well.

Mr. Mackasey: Do you feel that the government has a very good case?

Mr. Webking: If I might just say this, I think part of the difficulty we face in this general debate about the constitution is that we have a parliamentary system which, historically, has functioned within the framework of a unitary state, yet we have this parliamentary system which, again, embodies the concept of the supremacy of Parliament, and yet we have it within the framework of a federal system on the federal system does not follow those principals.

So what we have in fact are two different structures that are mutually antagonistic at certain elements and phases and that is part of our problem. We have to try and address ourselves to the problem how to accommodate ourselves to the principal,

[Page 18]

which goes back for hundreds of years, of parliamentary arbitrator, which could very well be the Canadian people through a referendum, the only way in which we can break the impasse is as proposed in the proposed Charter here, or proposed amending formula, and that is really the rationale behind what we are doing.

Mr. Webking: I think there is one other aspect of this matter which is even more important, and it is referred to by Mr. Robinson in a side remark that whereas Mr. Whalen trusted the court, Mr. Robinson was not sure that he did.

I would feel uneasy about criticizing the Supreme Court of Canada and some of the other courts in this country in their role as they have performed over the years, simply because I do not think their role is defined properly within the federal structure either.

I find it difficult to whip the Supreme Court of Canada over the head because of the Lavell and Bédard cases or similar cases.

Mr. Mackasey: You are probably more government, which is based on the concept of the supremacy of Parliament, and to house that within a structural framework which is somewhat more recent in historical terms than that of a federal system, which sees a duality of sovereingty and yet, somewhere there has to be a referee to deal with the disputes which inevitably arise between the constituent groups.

So I think that is a context in which some of this discussion is taking place.

I accept your learned intervention, which has been very educational to me.

When you talk about a referee or an arbitrator, really that is a problem which has forced the government to proceed along the lines they have proceeded.

Rightly or wrongly, we have viewed the many constitutional conferences we have had over the last half a century as reflecting the fact that we have reached an impasse.

But I want to move to the question of parental choice. Parental choice really means freedom of choice. Would you not agree that means freedom of choice?

Mr. Webking: Freedom for whom?

Mr. Mackasey: Of the parent to determine what educational system should apply to their children?

Mr. Webking: I know some parents who do not believe their children should have any education, and I happen to think that the child has some rights in this matter as well.

Mr. Mackasey: Certainly, they have a right to education. I am not fencing with you here, because I am really concerned about that particular section, in that the absence of freedom of choice, which would be the ultimate, there would have to be some standards to determine whom you deny freedom of choice to.

This section does not deal very adequately with those who are not defined as English speaking or French speaking

[Page 19]

Canadians, new Canadians from other lands. I do not think you would expect a child of six, for instance, to make up his or her mind as to which school they would attend if they had a choice?

Mr. Webking: Well what I would like to do, if you do not mind, Mr. Mackasey, is to defer to Mr. Tardif. I believe he has more experience and background in this area than some of the rest of us do in this part of the country.

[Translation]

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

Mr. Tardif: I do not know. I feel that a constitution is designed to guarantee rights and freedoms. If, for some historical or political reason those rights or freedoms are limited or circumscribed in some way, then the purpose of a constitution is being defeated.

I think that rights should be guaranteed in their broadest sense in view of the fact that various levels of government will, insofar as possible, attempt to respect them and to accommodate them.

After the fashion of other constitutions, ours should theoretically begin with the words “we, the Canadian people”. So, since the Canadian people are the basis for a constitution, they should have as many of their rights as possible guaranteed.

Of course, legislation or regulation could circumscribe those guarantees, but I do not think we should predict the worst. We must, above all, try to remove ourselves from our experiences with the development of language rights in Canada.

For example, an effort must be made to guarantee native language rights, because some native groups have lost the incentive for making sure their linguistic rights are guaranteed.

So, as someone stated earlier, this means more than just predicting the future, this means a challenge for Canadians.

Mr. Mackasey: Thank you very much, Mr. Tardif.

I think my time is up. Thank you very much.

The Joint Chairman (Mr. Joyal): Certainly, Mr. Mackasey. Thank you for your co-operation.

[Text]

I would like now to call on Mr. Speyer.

Mr. Robinson: On a point of order, Mr. Joint Chairman.

The Joint Chairman (Mr. Joyal): Yes, Mr. Robinson: on a point of order.

Mr. Robinson: Just a brief point of order. I did not want to interrupt the witnesses during the course of that very penetrating examination by Mr. Mackasey.

But I would like to suggest that, perhaps, in the interest of civilized discourse in the Committee, we do not descend into personal invective.

I know though that Mr. Mackasey is aware of the fact that, in reference to maturity, that age does not necessarily bring wisdom. Mr. Mackasey knows that perhaps better than most.

[Page 20]

Mr. Mackasey: I accept the observation of the very sensitive Mr. Robinson.

The Joint Chairman (Mr. Joyal): So, you see, Mr. Robinson. that sometimes age brings wisdom.

Mr. Speyer followed by Mr. Lapierre.

Mr. Speyer: Thank you.

Gentlemen, I agree with you that if you believe in the value of entrenchment in the Charter of Rights, that this particular document is very badly drafted.

I would like to direct a comment to you. Mr. Tarnopolsky in his writing has said that one of the failures of the Diefenbaker Bill of Rights was that we, as legislators, did not give a sense of direction to the courts as to what we wanted the courts to do in the event that there was a violation of those rights.

Do you accept the criticism that if we are going to have a Charter of Rights that we should have included some type of remedies when there is a breach of those rights?

Mr. Whalen: I do not necessarily think that follows. It may give some assistance, but I do not think it is normal in constitutions to find this type of penalty clause, although it is normal in legislation.

I think the greatest failing of the Diefenbaker Bill of Rights was the very fact that it was only an act of the Parliament of Canada, and was not part of the constitution. It was not entrenched.

Mr. Speyer: Surely, the freedom of speech and the freedom of assembly, which are included in the Diefenbaker Bill of Rights, have the same rational impact as that which is in the Charter of Rights, and the difference is what interpretation the courts are going to place and what remedies the courts are going to give for a violation of those rights.

Mr. Whalen: I agree with you up to a point. Are you suggesting that there should be a penalty clause in the constitution so that if you breached clause one you will have a fine of fifty dollars?

Mr. Speyer: No, no. I was just wondering whether you had given any thought to the provision of remedies.

Mr. Whalen: No, we have not given any thought to that matter.

Mr. Webking: My only reaction to that would be that the act of entrenchment is itself such a process in constitutional law that it would not be necessary to provide remedies or penalties, for that matter, because the direction that you noted as criticism relative to the Diefenbaker Bill would be eliminated or done away with simply by making that particular a piece of legislation the supreme law or part of the supreme law of the country.

Then, anybody who felt that they were being denied whatever that piece of legislation guaranteed them, could take action to pursue a remedy through the courts, if that were the way they were advised to go.

Mr. Speyer: Well, I will not continue with that but I would like to ask you a question that has some relevance. in Section 7 I think you criticized the legal rights and in particular the meaning of the principles of fundamental justice. We know

[Page 21]

that in the Bill of Rights, the Diefenbaker Bill of Rights, that the words used were “due process of law”, where Section 7 of the Charter speaks of the principles of fundamental justice.

Now, my question is this: do you believe that we are defining with sufficient precision principles of fundamental justice? What exactly are those? Is it the same as due process of law?

Mr. Webking: Well, I think that they are the same but I would think that in a ranking, I would think that the principles of fundamental justice, what would then derive from that would be due process. So that if you have established the principles of fundamental justice, what would follow would be due process.

Mr. Speyer: But surely fundamental justice is what the courts interpret in a particular set of circumstances; is that not correct?

Mr. Webking: Truly. Surely.

Mr. Speyer: And is that what we wish to have, is that what you would like to see. this large, broad clause that would be subject to judicial interpretation as opposed to just due process of law which historically has been in the American Bill of Rights and which is in the Diefenbaker Bill of Rights? Do you not feel that principles of fundamental justice is too ambiguous?

Mr. Webking: Well, no, I think we feel that the principles of fundamental justice are more encompassing than simple due process and therefore we think that in an entrenched Bill of Rights, a Charter of Rights that is to have supremacy, that it is better to have the more encompassing statement than the rather limiting statement, and we think that the principles of fundamental justice is much more significant than the simple statement of due process.

Mr. Speyer: Well, would you not agree with me that there could be a wide interpretation as to what principles of fundamental justice are?

Mr. Webking: I agree, and I think that is not out of step or out of keeping with the concept of the constitution, especially an entrenched one, and entrenched bill of rights.

Mr. Speyer: My last question, Mr. Chairman. I am intrigued, I accept your criticism and I think it is a very valid one with respect to Section 15 on the nondiscrimination rights. Everyone has the right to equality before the law and equality of protection of the law without discrimination, and it lists the categories, because I believe also that the right of equality before the law does not necessarily have to fit in to those pigeon holes.

However, I am concerned when you say that you would suggest a provision, “equality of service”. Now, does that only apply to the handicapped? I am worried about ambiguity. What does equality of service mean? If we were to say everyone has the right of equality before the law and to equal protection of the law, and equality of service, what does that mean?

Mr. Webking: Well, I think that equality of service is not limited only to the handicapped. It would be limiting, for

[Page 22]

example, if it said equality of service as applied to the handicapped. Equality of service can apply to everyone in any instance in terms of rights or duties that they feel the state has to them. and it is not limited just to the handicapped.

Mr. Speyer: But who is it designed specifically for?

Mr. Webking: Oh. I think it would be designed to protect any disadvantaged group that is not getting what they ought to get relative to their position in society.

Mr. Speyer: I am sorry I do not have more time.

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

Monsieur Jean Lapierre, followed by the honorable Flora MacDonald.

[Translation]

Mr. Lapierre.

Mr. Lapierre: Mr. Chairman, gentlemen.

First of all, may I congratulate you on your excellent presentation and for the many hours of work which, I am sure, you have devoted to us. Allow me also to comment you on Sections 1 and 15. I think that all members of the committee are now aware of representations which have been made and your proposed amendments to those two sections will only serve as further motivation.

Your request that the words “substantial number” in Section 20 and “in which the number of children of such citizens is sufficient” in Section 23 be removed. Personally. I feel that is a legitimate request. Mr. Hatfield, who had made some very eloquent remarks at the federal-provincial conference concerning precisely the question of sufficient numbers, appeared here last week. I only regret that I did not raise it then. My comments are addressed specifically to Mr Tardif, as a Francophone, when I say that there is no reference to the provisions of Section 133 of the existing Constitution. Many witnesses have appeared before us to ask that that section be extended to Ontario and the Premier of New Brunswick also asked that it be extended. Some have even suggested that it be extended across the board to all the provinces.

Have you studied that question?

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

Mr. Tardif: Yes.

I am not in the best position to speak clearly on that issue because the people who did most of the work in that area are beside me today. Nonetheless, in our presentation, we insist that the proposed resolution include all the commitments already made in Canada.

Our proposal is not aimed at reducing what has been obtained or what is already guaranteed. Rather, it is designed to maintain the rights already granted, to have them included in the Constitution, and extended.

IN fact, if other groups requested that Section 133 be extended, we would agree with them. However, we did not make specific mention of that question and devoted our energies more to the sections of the charter themselves.

[Page 23]

For example, we could also have criticized, rather than just mentioning, the international covenants which Canada signed. Instead, we just pointed them out. We could also have referred to all the rights acquired or recognized under those covenants.

Mr. Lapierre: I see.

Now, recommendation number two in your conclusion interests me particularly. There, you request the government to distribute the proposed resolution to all Canadians for their information.

In your opinion, would a public information campaign be warranted at this time?

Mr. Tardif: Yes.

When we began preparing for our presentation, it took us some time before we were able to get copies of the Proposed Resolution. So, we felt that if we, who are suposed to be on top of rights and freedoms in Canada, had a difficult time getting copies, then probably the ordinary Canadian was having some trouble getting them as well.

You have referred to a publicity campaign. That is one method, but there are many ways in making basic information available, not necessarily through a publicity campaign, since that will be seen as propaganda, but rather by making the working document available. The proposed Resolution should at least be distributed as widely as possible so that all Canadians interested in making their opinions known will at least know what they are dealing with. Of course, groups, including municipalities, interest groups or groups promoting and defending civil rights, must have the document, but so should the general public.

Mr. Lapierre: Rest assured that your recommendation has not fallen on deaf ears.

One last point, Mr. Chairman.

Your references to democracy trouble me somewhat.

Do you not recognize or is it rather that you doubt the legitimacy and responsibility of elected representatives? The people have chosen everyone seated at this table as well as all members of parliament today, except the Senators who have been chosen by the grace of God.

Do you not think that that puts us in a delicate position?

What is your perception of our situation?

Mr. Tardif: As we have tried to point out. a proposed constitution requires the agreement of a people while a proposed piece of legislation requires the approval of a Parliament or a legislature.

The process now underway was set in motion by a series of concerns or events which took place between the provincial and federal Parliaments.

[Page 24]

However, more people are becoming involved in the process. The fact that you have extended your hearings and the fact that many people are interested in making their views known is perhaps an indication that Canadians would like any measures taken for, with or by them to be more legitimate.

Mr. Lapierre: One short last question, Mr. Chairman.

Earlier, you referred to a referendum or a general election.

Do you really feel that the results of a general election held on a specific issue would be representative? If, for example, an election were to be held on constitutional reform, as the last one was supposedly on the Crosbie budget, do you really feel people would vote on that question alone? Do you feel it was strictly the Crosbie budget which made all Canadians think again? Were there not other factors involved? When you suggest that an election should be on this specific issue, I really fear that the results would not be necessarily very representative of national feeling on the specific issue because other factors would come into play.

Mr. Tardif: We have insisted mainly on the working document for the constitution being submitted to the approval of as many Canadians as possible.

Now, when it comes down to the means of consulting the people, there are several of them. The methods used depend on how provincial or municipal groups, for example, would like to make their views known.

What we simply wanted to point out is that the way in which public opinion is expressed is irrelevant; what is important is that as many views as possible be included.

If the pressure groups decide to make their views known through a form of government or another, that is fine. Their views must be respected and must be heard, in my opinion.

Mr. Lapierre: Thank you.

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

[Text]

The honourable Flora MacDonald followed by the honourable James McGrath, and that will conclude my list of speakers for our first group of witnesses tonight.

The honourable Flora MacDonald.

[Translation]

Mlle MacDonald: Thank you, Mr. Chairman.

[Text]

Gentlemen, in your comments tonight and in your very fine brief you made reference to the fact that you supported the proposals almost completely that had been put forward by Gordon Fairweather, the Human Rights Commissioner, but I would suggest to you that perhaps your brief is deficient in one field that Mr. Fairweather addressed, and one comment that he made in his presentation to the Committee is this:

The Charter of Rights shoudl contain an explicit reference to the rights of women.

And he went on:

We suggest adding the following unequivocal principle: This Charter guarantees the equal right of men and

[Page 25]

women to the enjoyment of the rights and freedoms set out in it.

And in fact the two women’s organizations, the National Action Committee and the Advisory Commisssion on the Status of Women both made reference to that as well and I was wondering if you would look again at the proposed Section 1 that you have suggested and that you consider the possibility of amending it, either to the proposal that Mr. Fairweather has made, which equates with the International Covenant on Human Rights, which would read:

The Canadian Charter of Rights and Freedoms guarantees the equal right of men and women to the enjoyment of the rights and freedoms set out in it.

Or perhaps the proposal made by the Advisory Commission on the Status of Women:

The Canadian Charter of Rights and Freedoms guarantees to every person . . .

And you will understand that “person” really means something in the interpretation of the Imperial Privy Council cases:

—guarantees to every person the rights and freedoms set out herein.

Mr. Webking: Well, yes, I think that our position was that we saw that taking place in our reference to the word “everyone”. Everyone having the right to equality. That combined with what is known as the affirmative action program in Section 15 we thought-would cover it. It seems to me that if you say “everyone” has equality, then that simply says it, It takes in everyone.

Miss MacDonald: Actually I was talking now about Section 1.

Mr. Webking: Section 1, yes.

Miss MacDonald: And put in the very basic statement in the Charter of Rights the fact that every person or every man and woman is considered equal and we do not have to then get into some of the other things. That is stated as the most fundamental principle.

Mr. Webking: No, I think that additional wording would simply support what is our feeling on this matter, and I think that something to that nature in Section 1, together with suggestions we have made for Section 15, I think would give the document the kind of force and effect that you have given expression to here.

Miss MacDonald: Let me just turn to Section 15 because one of the concerns of many women flows from the fact that the wording that is there now duplicates the wording that is in the Canadian Bill of Rights and though I know you do not want to be the Supreme Court over the head of the Bedard and Lavell case, nevertheless that was the wording that was used at the time of the Bedard and Lavell cases, and it was felt at that time that it was used in the just administration of the law rather than in the law itself. So that the suggestion has been made that every person shall have equal rights in law, including the right to equality before the law, so that you have the rights in law itself?

[Page 26]

Mr. Webking: No, I think that that is simply reinforcing the position as strongly as possible. Again I think that there is a tendency to want to redress past grievances by nailing things down quite clearly and specifically in the Charter and I have some concern about being too specific because I think that will in the long run introduce greater limits and controls in an area where there might be some sort of conservatism in terms of interpretation rather than if the term is as broad as possible.

Again, I think the difficulty with what has been done in the past is simply because it has been done within the framework of each piece of legislation that Parliament has in effect been the last word on that subject and no clear statement as to what is the word on that particular statement, so the courts are finding themselves in this very difficult bind that if they say: this is the final word of Parliament; then they can be accused of usurping the power of Parliament in a system where Parliament is supreme.

So I am a little uncomfortable with using the courts as a reason for this because I think what the courts have done has been within the limitations under which they had to work and I think we have to understand what those limitations are.

Miss MacDonald: Then going to Section 24 and the proposal that you make there for changing Section 24, which also causes me some concern. You say the guarantee in this Charter of certain rights and freedoms shall be in addition to any rights and freedoms that exist in Canada, and so on, applying to the native people, but you in fact then take that section to mean that certain rights and freedoms exist which do not exist now, given the present Indian Act. And the fact that rights and freedoms do not exist for certain members of the Indian and Inuit and native groups.

Now, I am speaking particularly now of native women who marry white men, so that the clause that you have there does not in any way seek to redress that unless you add on to it in some way: will apply equally to men and women?

Mr. Webking: Well, my response to that would be that if you take Section 24 with Section 15 and with Section 1, I think that there is the opportunity available then to seek the kind of clarification that you want. I do not see any difficulty with adding the particular wording that you have suggested again, but I think that the possibility for doing that is there already, based simply on the statement that this would be the entrenched and the superior piece of legislation, then every other piece of legislation that exists or will exist in Canada will have to be compared to that superior piece of legislation and if it is wanting or contradictory, then it would have to go by the way and a court case might be involved in that which could result in that sort of decision.

Miss MacDonald: It might say: Cite the former precedent.

[Translation]

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

The honourable James McGrath, to conclude.

[Text]

Mr. McGrath: Just one question, Mr. Chairman.

[Page 27]

When Mr. Justice J. B. Clyne was before us, the former Justice of the Superior Court of British Columbia, I put to him the following question. Would the Diefenbaker Bill be a more effective declaration of rights in the constitution that the one before us? Mr. Justice Clyne replied, “Yes, it would be.” He then went on to say, “I think this is a very badly drawn act.”

Do you subscribe to that statement, generally?

Mr. Webking: I think we feel that the proposed bill, the Charter of Rights, is not a step forward in the area we would like to see the country go and certainly I do not think that the proposed Charter is in conformity with the minimum standards, if you want to take the most limited view of this, that Canada subscribes to by its agreement to the various covenants of the United Nations, certainly the optional Protocol and the Covenant on Political and Social Rights, for example.

Mr. McGrath: Do you consider the Diefenbaker Bill a more adequate declaration and recitation of basic human rights and fundamental freedoms? Would that be more effective if it were entrenched, say, with certain anomalies corrected?

Mr. Webking: I think the Diefenbaker bill can be expanded upon and I think that some of the proposals that have been put forward by Walter Tarnopolsky, for example, Mr. Fairweather and even our own group moves more in that direction. I think the Diefenbaker bill was good for its time and I think it is certainly perhaps better than what is before us now, but I would not want to say that the Diefenbaker bill is the last statement on the matter either.

Mr. McGrath: Thank you, Mr. Chairman.

The Joint Chairman (Mr. JoyaI): Thank you very much, Mr. McGrath.

On behalf of all of the honourable members of this Committee and on my behalf I would like to thank you for having participated so willingly in our work tonight and I would like to thank you especially taking into account the contribution that you have made in putting emphasis on the link between human rights and democracy, which is the political institutions that have to support freedoms and civil liberties. Thank you very much.

Mr. Webking: Thank you.

The Joint Chairman (Mr. Joyal): I would like to call now the representative of the Canadian Council on Children and Youth.

[Translation]

I would now like to ask the representatives of the Canadian Council on Children and Youth to come to the table, so we can resume our deliberations in their company.

[Text]

It is my pleasure tonight on behalf of the honourable members of this Committee to welcome Mr. Andrew Cohen, Executive Director of the Canadian Council on Children and Youth; Mr. David Cruickshank, the Vice-President and Mr. Joseph Ryant, a member of the Board of Directors.

[Page 28]

I understand that you have circulated a written brief to the honourable members of this Committee, and you have agreed to have an opening statement and then receive questions by the honourable members of this Committee. Mr. Cohen?

Mr. Andrew Cohen (Executive Director, Canadian Council on Children and Youth): Thank you, Mr. Chairman. I would first of all like to apologize to the members of this Committee for not being able to make our brief available very far in advance and not in both official languages, but as I am sure members of the Committee are aware some of the organizations will have been given fairly short notice, and in our desire to attend we have quickly prepared our information, but not all of us have had an opportunity to prepare it as completely as we would like.

I would like to apologize because our organization generally does operate in both official languages and we just did not have an opportunity to complete all of our information in that way.

I would like also to introduce my colleagues who are with me. On my right is David Cruickshank who is a Calgary lawyer and a professor of family law and constitutional law at the University of Calgary. He was also the Research Director for the British Columbia Royal Commission on Family and Children’s law.

On his right is Professor Joseph Ryant, Professor of Social Policy and Research at the School of Social Work in the University of Manitoba, and he prepared for the Manitoba government a comprehensive review of child welfare policies and services.

Both these gentlemen are on the Board of Directors of the Canadian Council of Children and Youth which some of you may be aware has for 20 years been dedicated to working on behalf of children and a couple of years ago presented a report entitled Admittance Restricted: The Child as Citizen in Canada, which was at least partially the subject of discussions in a Committee of the House of Commons.

My name is Andrew Cohen and I am Executive Director of the Council.

We are very glad to be here. Like many groups we are delighted to have the opportunity to speak at such an important occasion and during such important discussions where Canada’s constitution is being discussed, and we are particularly interested, in our observations of the process so far, to note how many groups have come before you to speak on behalf of the disadvantaged and other citizens in our society.

A few questions strike me, though.

What about the people in society who do not know about human rights? What about the people in society who do not know that they have those human rights? What about the people who are three months old or five years old and do not know that they have any rights? Does this mean that they are inhuman? Does this mean that they do not have any rights? Is inability to understand, articulate, defend or organize on

[Page 29]

behalf of your rights, are those things grounds for the denial of rights?

At one of your earlier sessions Senator Hays, who unfortunately is not here tonight, mentioned, I think it was when some of the women’s groups were appearing, that perhaps someone should speak on behalf of the babies and the children, and in a sense that is what inspired us to come. We originally had not been planning on attending these sessions but I must tell you that within 24 hours of Senator Hays’ interesting comments we had received 20 or 25 phone calls, and two delegations, Some of the phone calls were from people who were attending the hearing, some of them in an official capacity as members of the Committee, others as observers, and the delegations were from people who had also been attending the hearings. We are not here to complain on behalf of children whose mothers work. In fact, we are not here to complain about anyone. We do not view human rights as something that can be parcelled out differently to different categories of human beings. We believe that human rights are indivisible, They are not to be parcelled out to different segments of society at different times and under different circumstances.

The concept of universal human rights hinges entirely on the indivisibility of those rights. Every being defined as human is entitled to the rights. Otherwise either the being is not human or the rights are not universal.

The rights of children, however, are not generally expressed in those terms and my colleagues are going to expand at greater length and you will see in the brief some of our specific concerns about how the rights of children should be even more concretely expressed, but our whole philosophy really rests on four principles. One, as I explained, is the basic principle of the rights of children as human beings; secondly, support for the family; third, quality of opportunity for all members of society and, fourth, individuality of interests both of children and others.

Canada’s most significant constitutional document, the British North America Act, makes no reference to children. We view the resolution therefore that Parliament has placed before your Committee as the best opportunity in over one hundred years to ensure that children have full citizenship rights in our country, to create the context for improvement in the situation of children and to banish forever what we view as the rather repugnant notion of children as chattels of their parents or of society,

The rest of our brief will discuss ways, and we will discuss them before we get to our brief, the ways in which our principles can be applied to the proposed Canadian Charter of Rights and Freedoms including a discussion of entrenchment, our position on the rights of children and the legal rights proposed in the Charter.

We are not going to read our brief and I would hope, Mr. Chairman, that it would be possible for it to be appended to the proceedings, but I would like to pass the microphone now to my colleague, Professor Cruickshank, who will talk a little

[Page 30]

bit about some of the specific things in the proposed Charter that we are concerned about.

The Joint Chairman (Mr. Joyal): Professor Cruickshank?

Professor David Cruickshank (Vice President, Canadian Council on Children and Youth): I will attempt to highlight a few of the points raised in the written brief beginning with the entrenchment question.

Our Board of Directors discussed this just last weekend in fact and decided that we should not take a strong position either in favour of or against entrenchment but to point out to members of the Committee that when looking at this issue in the political arena, it seems to boil down to a discussion as to whether the courts ought to protect human rights or the legislatures ought to protect human rights.

We would point out to the Committee that the track record both of the legislatures and Parliament on the one hand and the courts on the other hand is not very good with respect to children’s needs and rights and we have given some examples.

We are concerned that in your whole discussion of entrenchment that you may be tempted to go at it in a very black and white fashion, that it is all one side or the other side, and we view the entrenchment question in some ways as almost less important than the realization that both the courts and the legislatures may have a role to play in protecting children’s rights.

With respect to the courts, we give the example of the Burnshine case which is laid out in our brief and expressed the opinion that perhaps that decision which we regard as somewhat negative, if an entrenched charter were in place, would be even more dangerous in our view and more disappointing because it would require a constitutional amendment to undo, just the way a decision similar to Lavell would require a constitutional amendment.

With respect to the legislatures, we give examples of what we regard as progressive legislative moves, but also some moves that seem to be either holding the status quo or almost moving backwards in time. I should point out that Parliament has not exactly been stellar in its efforts to protect the needs and rights of children either.

However, when coming to a position on children’s rights, we are not standing here to say that there should be a separate bill of rights for children at all. We do not take that position. We do think that there are some nuances of intepretation in the legal rights that ought to be considered when you come to suggesting amendments to the Charter.

Generally speaking we believe that the rights contained in Section 7 through 15 apply to everyone and everyone ought to clearly be taken to mean children, that is persons from birth to the age of majority, whatever that age may be, 18 to 19, it varies from province to province.

With respect to the right not to be detained, we hope that one of the things you will consider is that any procedures established by law which allow detention ought to consider separate detention for young persons. This is the existing law but it is not often carried out in practice. I know certainly in

[Page 31]

rural areas of Alberta it is quite common to use adult jails for children; so that should be made clear.

With respect to rights upon arrest we suggest two additions that would affect young offenders in conflict with the law; one, the right to be informed of your right to remain silent; secondly, the right to have an independent adult, and by this we mostly mean a parent, present during police questioning. These are two rights we think important, as attached to the rights on arrest.

The right to counsel we think ought to be expressed in a broader, more definite way, to read that indigent persons including accused young persons have the right to have counsel provided, not just the right to retain and instruct, but the right to have counsel provided at the time of plea and trial.

With respect to an interpreter we would point out that languages in the ordinary sense are not the only barrier to understanding what goes on in court. In my work as a lawyer in the juvenile courts I have seen frequently a situation where a young person comes out of court having pleaded, having listened to the charges, undergone a trial, and not known a single thing that happened in the court room. It all has to be explained over again to him. So we would like to see you take the concept of an interpreter as far as including the right to an interpreter where age or disability is a barrier to understanding the language and process of the courts.

With respect to equality before the law I think we regard this as a very troublesome part of the Charter, Section 15, it has got a lot of difficulties, and we have some specific suggestions at the top of page 7 of our written brief. We think that, first of all, the without discrimination clause which I call the nondiscrimination list ought to be split off and separated from the guarantee of equality before the law and simply state that equality before the law exists without discrimination on a prohibited ground; and then add a new subsection stating prohibited grounds include—now, this is a draftsman’s technique—I am sure other submissions have mentioned this point, that allows the courts to use any one of the enumerated things but expand the list of forms of discrimination in the future. This has been the position the Supreme Court of Canada has taken under the Canadian Bill of Rights, and I think you ought to encourage that in the new Charter if it comes into force and not discourage it in any way, as the present Section 15 seems to do.

We furthermore suggest two additions to the list of forms of discrimination; one, disability, which we think affects children quite a lot and, secondly, discrimination based on having the care and control of children.

With respect to the phrase in Section 15(2) disadvantaged groups or persons, I am sure you have heard this previously as well, we do not think that old people or children ought to have to be labelled disadvantaged in order to have reverse discrimination or benefit. I think that is a spurious label to attach to any group and we suggest an alternate wording along the lines of having a special need related to a prohibited ground of discrimination.

[Page 32]

Finally, we talk about the wording amelioration of conditions and point out that a court here might be restricted to examining only the object of a law program or activity, and not looking at the substance, what that pretended benefit really does; so we suggest that you make it clear that the courts have the opportunity to really question whether a law program or activity in fact is providing a benefit that allows you to get outside the normal rule of equality before the law.

So that concludes the highlights of the specific suggestions that we have and Mr. Ryant will now conclude our presentation.

The Joint Chairman (Mr. Joyal): Mr. Ryant?

Professor Joseph Ryant (Board Member, Canadian Council on Children and Youth): Thank you, Mr. Chairman. My colleagues have asked that I summarize the position of the council with respect to the Charter of Rights and Freedoms as it affects children. I think the first thing I should do is to reiterate the point that we are not asking for a special Bill of Rights for children. Consistent with the position that we laid out in Admittance Restricted we are asking that the proposed Charter of Rights and Freedoms extend to children the notion that they are persons just as all others are persons and with the exception of clarification of the legal rights and equality before the law sections of the proposed Charter, the extension of that right would suffice.

In Admittance Restricted we asked the question, who is to protect the child from its adult protectors, and we believe as a council that speaks for children and on behalf of those interested in children that that question can have its answer in the new Canadian constitution.

As a matter of fact we would not believe that the proposed Charter of Rights and Freedoms would in any way be complete unless it extended to children the concept that they are persons before the law and persons as citizens as we have suggested.

Unless we move in this direction we think that we will continue to witness certain sad spectacles that we now can view in Canada such as the refusal to extend existing child welfare services under provincial legislation to native children on reserves because two levels of government, a particular province and the federal government, may be in a profound disagreement about who is to bear the cost of those services and in what proportion.

We think that we would like also to avoid the spectacle of children being removed from the care and custody of their parents on the grounds of parental neglect and then have the child welfare authority without any sense of legal entrenchment of accountability be able then to move the child from foster home to foster home to foster home to foster home.

These two examples are commonplace in Canada today. We ask where else should we begin to define the standards of accountability which are necessary and the authority that is necessary, except in the Charter of Rights and Freedoms that has been proposed.

[Page 33]

We are suggesting to you, with respect, that the needs and rights of 7 million Canadians demand that sort of conclusion.

Thank you, Mr. Joint Chairman.

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

I understand you will be agreeable to receiving questions from honourable members of this Committee.

I would like to call, first, the honourable James McGrath, followed by Mr. Robinson. Mr. McGrath.

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

I would like to compliment the Canadian Council on Children and Youth on what is a very comprehensive presentation, albeit you had very little time, and indeed that places us under a bit of a handicap as well, because we had very little time in which to read your brief.

I would like, first of all, to make the comment that many of the areas that you have identified are currently—and I do not think they will be changed that much—under provincial jurisdiction. Would you care to comment?

Professor Cruickshank: I could perhaps try to answer that. As I understand it, the proposed Charter will apply to federal and provincial areas. I think we are looking at a complementary situation in which the passage of the Charter should not allow us to relax and sit back and assume that the provincial legislatures should not also be active.

For example, the Quebec Youth Protection Act has a code of rights for children in care. I think we see that development as being an additional, positive, development that other provinces are to follow, even if an entrenched Charter is passed.

Mr. McGrath: Have you examined the Criminal Code and the statute laws of the federal parliament of Canada to determine areas where children’s rights are currently not adequately safeguarded?

Professor Cruickshank: Well, in this respect, we made this examination two years ago and submitted our brief, and it is covered in that brief—to the Standing Committee on Justice and Legal Affairs; we examined all the federal statutes and made recommendations.

Mr. McGrath: I appreciate that, but that is my way of trying to get it onto the record, Mr. Joint Chairman.

Your declaration on the rights of children which was adopted in 1959 and in relation to which Canada is a signatory-there are 10 principles to the UN Charter on the rights of children. First of all, it is significant that the United Nations, 11 years after adopting or issuing its declaration on human rights, should find it necessary to issue a declaration on the rights of children, which, presumably, speaks to the fact that children’s rights were not adequately covered by the original declaration of 1948.

I would like to refer to Principle 2. It says that the child shall enjoy special protection, and shall be given opportunities and facilities by law and by other means to enable him to develop physically and mentally, morally, and socially in a healthy and normal manner in conditions of freedom and

[Page 34]

dignity, and the enactment of laws for this purpose in the best interests of the child shall be the paramount consideration.

Again, Principle 9 states that the child shall be protected against all forms of neglect, cruelty and exploitation, and he shall not be the subject of traffic in any form. Now it is interesting that we should be reading that at this particular time of the year when, in my opinion, probably the greatest exploitation of children takes place in the form of advertising on television as we see every day.

But, could you identify, in your opinion, areas where Canada has not lived up to these two specific principles of the Charter? Further, I was rather disappointed that you did not specifically refer to the ten principles of the Charter, because Canada is a signatory to it.

Many of the witnesses who have come before us, speaking on the Charter that we have in front of us and the principle of entrenchment, have used as one of the bases of the arguments the UN Protocol.

Mr. Cohen: Our position on the United Nations declaration on children’s rights is that it is an interesting statement of principle, but is not a statement of rights as one would normally define such a statement.

I would go back to what we have said earlier, namely that I do not believe that children’s rights are any different from anybody else’s, and that really the United Nations statement, the United Nations Charter of Human Rights, for instance, does not suggest that people other than children should be subjected to unusuall cruelty; only that children should not.

In other words, their -reasons for making a special list for children are somewhat unclear for the purposes of actually drafting the kind of legislation which would ensure that those rights were looked after.

So our position on that is that the statement of children’s rights, as proposed by the United Nations, and as you have said, signed by Canada, quite correctly, and supported by us as a matter of principle, is quite different from the kinds of rights we think should be guaranteed for all Canadians, including children in something like our constitution.

The kinds of rights that you will find in the United Nations declarations are not the kinds of rights you would put in a constitution of a country but are the principles one would uphold in a way one would hope one’s country and other countries would conduct themselves. But they are not the kinds of things which can be legislated.

Mr. McGrath: Could you help me with a problem that we all have when we talk about the rights of children as persons—and I tend to agree with you that we do not require a separate Bill of Rights for children, although I introduced one, though I used it as a catalyst to bring the subject before Parliament and to indentify the fact that Canada was approaching the international year of the child without any adequate preparation. I think we have passed that now, and, unfortunately, I think we have missed a great opportunity.

But the problem we have as legislators in responding to our constituents across the country, is one of attitude. You have, of

[Page 35]

course. identified one of the prevalent attitudes, where we tend to look upon our children—indeed that attitude is too often reflected by the courts—not as persons, but as chattels of their parents—a position, I might add, that women found themselves in not too long ago; yet, we have made great strides in having women’s rights identified, although we still have a long way to go; but in terms of defining children as persons and according them adequate protection, how do you get around the sanctify of the home, where one might find the attitude “I know what’s best for my children”, an attitude which is too often repeated by the courts?

Mr. Cohen: First of all, I do not question the sanctity of the home, nor do I make any attempt to get around it.

It seems to me that one of the problems one has in identifying the home as a place of sanctity is that we honour it by ignoring the people who are in charge of it.

In other words, the home is such a hallowed place and the institution of the family is also so hallowed that only in the most extreme circumstances will we intervene in any sense in the family structure.

The result is this. We need a licence to go fishing or to drive a car or to do many other things. But we do not require any kind of preparation at all for people who are thinking of beginning families, because we do not want to interfere in the process.

So I wonder if somehow our desire not to interfere in something that is so holy is in fact a benign neglect which can be remedied through some situation, but might be viewed by some as an interfence, but which I would certainly view as the type of support which is required in a society where the family is changing all the time.

Mr. McGrath: But you will agree with me that most of the physical harassment and battering of children, both physically—and I might add sexually—takes place within the sanctity of the home: incest, for example, is something we do not like to talk about, and is much more prevalent than we, as a society, would like to believe.

We know, for example, that while the law does not sanction it, it condones the use of physical force against children in schools, and it does not seem to have any way to protect children in the home until it is too late, until they are in fact in a children’s hospital as a battered child, and then, not only physical, but psychological damage has already been done.

How do you get around that situation in terms of what we, as a society, view as the sanctity of the home?

Professor Ryant: We in society have to do more than view the home as having sanctity. We have also to view the family as operating in a set of very different circumstances.

Mr. McGrath: Perhaps sanctuary would be a better word?

Professor Ryant: All right, sanctuary. Families are under immense types of pressure, many self-created. The pace of life

[Page 36]

has changed; work has changed; mobility from place to place has meant that families have become uprooted, and I can go through a long litany of environmental pressures on the family, most of which needs the society’s support because we can associate them with notions of progress and modernity and getting on with the job of doing the best we can.

What we do not realize in that situation, is how much pressure the family is put under and how much we have created a vacuum in which families, parents, look for support or assistance that is not forthcoming from society, We are very good at demanding of Canadians who become parents that they give their very best occupationally, and as members of the community, and we provide many opportunities for them to do that; what we do not do is to provide equal opportunity and changes and adaptations in our institutions to help them in their role of parenting.

I would say we have to intervene in positive ways in family life by creating opportunities for parents to have more support in their being parents rather than intervening as a state only when parents show some failure.

Mr. McGrath: I realize that my time has expired, Mr. Joint Chairman, but may I ask the unanimous consent of the Committee to have the brief appended? It has not been read in its entirety.

The Joint Chairman (Mr. Joyal): I see no opposition around the table. It is agreed.

Monsieur Robinson, suivi de madame Campbell.

Mr. Robinson: Thank you, Mr. Joint Chairman.

Again I would like to join Mr. McGrath in congratulating you on an excellent brief, and to say, in passing, that your organization is doing an outstanding job. Unfortunately, not too many Canadians are aware of the work you are doing. Hopefully, this kind of tribunal will make more Canadians aware of the work you are doing.

Of course you have referred to the report you prepared in 1978, Admittance Restricted, a report which should be required reading for all members of Parliament and Senators as well.

Many of the recommendations that you make there will be touched upon if some of the provisions which you have suggested on the Charter of Rights were enacted.

I might say, in passing, that there is another report—and you may agree or disagree with me when I say that it is a report which should be read, namely the report by the National Council on Welfare of poor children, the international Year of the Child report which documents some very serious economic and social concerns facing Canadian children.

In the light of those reports, and some of the very shocking statements made in them about the reality of the conditions facing many Canadian children and young people, have they given any consideration to the proposal by some that there should be some reference in this proposed Charter of Rights to economic social and cultural rights?

Canada, after all, is a signatory to the International Covenant on Economic, Social and Cultural Rights.

[Page 37]

Have you addressed yourselves at all to this question of whether there should be a reference to those rights as well?

Mr. Cohen: We have not addressed ourselves directly to those questions on behalf of all the people.

But I would like to mention, in passing, if I may, that you have referred to the fact that you felt it would be appropriate that Admittance Restricted and other reports should be required reading.

But, I would like members to be aware, that we tried to do that by having it tabled at the Committee on Justice and Legal Affairs which heard us at the time the proposed legislation of Mr. McGrath was being discussed. Unfortunately, the Committee did not—or has not yet reported to Parliament; it may be that it will at some future time. We are still waiting. Maybe that is a way to get those kinds of things in.

Mr. Robinson: I do not wish to cast blame or make accusations or complain, but perhaps that indicates the kind of priority one gives to the issues relating to children, that the Committee, with all the other things it has to do, finds itself too busy to report on the matter referred to it by Parliament,

I am not sure how often that happens in other cases.

Mr. Cohen: In regard to the social and economic rights, we tried to address ourselves to the kind of human rights that everybody needs and to figure out how children could be included in those.

We did not talk about social and economic rights because, in our view, a document which lays out the basic principles of human rights for Canadians does not necessarily need to, although there is no reason why it could not; it is not necessary to lay out the entire framework for the social and cultural structure of a country.

What it needs to lay out is a much more general framework within which further things can happen.

So that in the view of the Council, partly because our expertise lay in the area of children, and partly because we felt that would be getting far too detailed, we did not investigate the social and cultural rights question in detail.

Mr. Robinson: Thank you.

Presumably, you would have no objection if there were a reaffirmation of Canadians’ obligations, for example, under the International Covenant on Economic. Social and Cultural Rights?

Professor Cruickshank: I would say not. It would simply be consistent with our position that if those rights are applicable to everyone that they ought to be applicable to children.

Mr. Cohen: If I can add something, we are not persuaded that every thing we believe should be in the constitution; but the fact that we do not or may not want it to be in the constitution, or may not be suggesting it for the constitution, does not mean that we do not believe it. It means that we do not think that all our views have to be contained in the constitution of the country.

[Page 38]

Mr. Robinson: I understand that.

Perhaps I can say in passing that there will be another private members’ bill similar to the content of Jim McGrath’s bill coming before this Parliament, and, hopefully, that subject matter will be going back to the Justice and Legal Affairs Committee, so that there will be an opportunity to carry on the work which was started sometime ago by Mr. McGrath, who has been a tireless advocate in this area and deserves to be commended for that.

I have some specific questions with respect to the section on legal rights. Perhaps a broad question not dealing with any particular section, namely what happens if there is a violation of these proposed legal rights, as the Charter stands now?

Have you considered the desirability of having a remedies section, a fairly broad remedies section in the proposed Charter, in order that, for example, a child or young person who comes into conflict with the law and is denied a right to Counsel or denied some of the rights that you have proposed here, for instance the right to an interpretor, that there is some recourse in law for that child, and not merely the present provision in the bill which states that where a law comes into conflict with the provisions of the Charter that it is rendered inoperative. Would you comment on the desirability of a remedies section in the proposed Charter?

Professor Cruickshank: We have not discussed it, and our board has not taken any official position.

But I think, certainly, a remedies section would be worth considering either in a Charter or in the Criminal Code.

I think, for example, the failure to inform one of one’s right to remain silent or one’s rights upon arrest, ought to lead to a conclusion that a fair trial could not be possible as a result of violation of that proceeding in other words, help the individual as well as attacking the law upon which the discrimination was based.

Mr. Robinson: Presumably, you will agree with the suggestion that if this remedy is right, which is really very important if the rest of the rights are to have any substance, if that is contained in the Criminal Code, if that is an ordinary statute and it can be taken away at any given time, bearing in mind that the criminal code also applies in the federal jurisdiction?

Perhaps you might like to reconsider?

Professor Cruickshank: That is a very good point, and something which would have to be taken into account.

Mr. Robinson: Now, one of the areas you have discussed, is the right to counsel and the right to some of the other protections which should be accorded to all Canadians in criminal proceedings.

A suggestion has been made by some witnesses—and also by myself—that the right to trial by jury is one of the cornerstones of the Canadian criminal justice system.

I wonder if you would like to comment on some of the jurisprudence which exist in the United States on the interpretation of the access by juveniles to trial by jury and whether, in your formulation of the rights under the criminal justice

[Page 39]

system, you believe that right as well should be accorded to young people in conflict with the law?

Professor Cruickshank: Again, Mr. Robinson, this is not a point we have considered in detail, It would be something which we would have to consider if the right were extended to all adults in all cases. I can certainly see that the introduction of juries could lead to considerable delay and one of the real advantages of the current juvenile court system in my personal view is that cases can be dealt with fairly expeditiously, and even in expeditious handling of these cases we found in, Alberta, for example, that the average length of stay in pretrial detention was 63 days. Now, that is outrageous for a juvenile case that is simply before a judge alone. What would that delay factor in detention be if juries were introduced in more and more cases?

I simply raise this as a discussion point without taking a firm position either way.

Mr. Robinson: Presumably, though, in light of the tenure of the remainder of your brief, if this right were accorded to other Canadians, adult Canadians, your position would be that it should not be denied to people on the basis of their age?

Professor Cruickshank: Yes.

Mr. Robinson: One final question, Mr. Chairman, if I may.

You make some proposals for changes to the proposed Section 15 of the Charter, and of course as it stands now that section includes prohibition on the grounds of age, and you would make certain additions to that and change it to read “without discrimination”.

I wonder if you would comment, please, on the effect that this might have. Some witnesses and others have expressed concern about the effect this might have on various provincial and federal statutes, and if you would specifically direct your mind to Section 43, I believe it is, of the Criminal Code?

Professor Cruickshank: That Section 43 is the one dealing with the apparent authorization of corporal punishment?

Mr. Robinson: Yes.

Professor Cruickshank: That is the one you are addressing,

Well, I think that would be something the Committee should realize that you are assigning to the courts. In effect, by keeping Section 43 in force and passing the equality before the law section you are assigning to the courts the job of deciding whether or not that will be struck out of the Criminal Code, and I as a lawyer would certainly try to make a persuasive argument that the phrase “age” ought to be used to strike that section out of the Criminal Code.

Mr. Robinson: Thank you, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you very much. mister Robinson.

Mrs. Campbell, followed by Mr. Hawkes.

Mrs. Campbell.

[Text]

Miss Campbell: Thank you, Mr. Chairman.

I, too, would like to welcome the witnesses and say that I was impressed and have been impressed in the past with their work. I have a number of areas that I would like to get into. I

[Page 40]

am particularly interested as well in the young offenders, but also the child welfare acts across the provinces as it would relate to the legal rights.

As a lawyer I have done some family law and it seems to me that in one area you sort of got to the family situation after the intervention of a third party and after there had been many other interviews before any legal rights had come up, and it seems to me it should go further than just the young offenders; it should go to any provincial legislation that deals with the child, under child welfare and vice versa for the parents who are perhaps deprived of seeing the child during that time.

You specifically mentioned the young offenders but it seems to me it should cover anything or any statute that deals with the child?

Professor Cruickshank: Yes. I would just point out that the Charter does not seem to be limited in the legal rights application to criminal law matters and so I would see it applying to provincial child welfare statutes, although there may be some difficulties, for example, because it is not an arrest that is undertaken, it is called an apprehension of a child, when a child is removed from a home, so perhaps . . .

Miss Campbell: Debatable at times.

Professor Cruickshank: Perhaps to make the coverage clear the language of arrest ought to be considered.

Miss Campbell: If I have time I will get back to that area.

You end your brief, or what you gave to us, that the needs and rights of 7 million Canadians demand inclusion in any proposed Charter of Rights and Freedoms for Canada, but you have not, I do not think, given us one specific clause, stating specifically the protection of children under the Charter of Rights, that any area that should go in there, unless I have missed something in your presentation.

You assume that “every person” should go or be extended to the child and I would just like to read you, and I am sure you are aware of what the Canadian Human Rights Commission recommended, and I would like to know whether that would go far enough. The Canadian Human Rights in their first clause went further and stated there should be a specific clause for men and women before the law, men and women are equal before the law. That was specific. It then went on to Section 15 and it said, in the first part, equal rights without discrimination for everyone. I would say “every person”, and that might go further to include the child because “person” well, it includes men and women so far in the Supreme Court, I think. Then in the second one, the second clause I do not really want to deal with but I would like to go to the third clause of that Section 15 and see if that would eliminate some of your fears about the disadvantaged clause that you saw in the proposed resolution and I would just read it to you:

This Section does not preclude any legislative distinction which is justifiably necessary for reasons of compelling state interests.

[Page 41]

Would that cover your concerns of affirmative action programs?

Mr. Hawkes: Well, that suggestion it seems to me follows the American jurisprudence and over the years that has proven to be a very sensible and reasonable way of sorting out the affirmative action, reverse discrimination cases, so I would support that approach.

I would that we would also be supportive of some statement recognizing children if you were going to also mention men and women. Why should we wait for another 1919 persons case with respect to children, why not say it now?

Miss Campbell: Another area that I was kind of interested in was that you mentioned in the International Year of the Child, I forget where it was, but there was not one reported single complaint filed. I find that kind of interesting. Who did you expect to file the complaint? You mentioned it and I am taken by it. I agree with you, I would expect somebody but who would have done it on behalf of the child?

Professor Cruickshank: Well, I will point out one thing and I think Mr. Cohen will have something to say, buty this quotation comes directly from the 1979 annual report of the Canadian Human Rights Commission and we point out that we think the reason may be that the public has a perceived lack of connection between general human rights legislation and the rights of Children, and this goes to the whole attitude problem. If people saw children as persons they would say: Hey, there is the Canadian Human Rights Commission; and they will follow up some of these complaints.

Now, perhaps Mr. Cohen has something to add.

Mr. Cohen: I do have something to add.

We thought we did make a complaint. We wrote them a letter stating what our complaint was on behalf of somebody who felt that they were being discriminated against as a result of a grant that had been made by a federal agency to a condominium, and I will not bore you with all the details of the case, but it seemed to us as something that should be taken up by the Canadian Human Rights Commission.

We also noted in the appendix to their report, and I do not have the figures with me, but although they mention in the body of the report and we quote them here that they say they did not have any complaints, they said they had quite a few letters and inquiries about children and the problems of children, and in fact if you added up over the various categories it was over a hundred, but then in the body of the report they said they had no actual Complaints. So in fact we are in the process now of writing to them to find out what constitutes a complaint, is there some form that we were not aware of, for instance, when we wrote in, and then there were many other people who were listed in the appendix said they wrote in about children.

So I am not sure that I have answered your question. I am not sure who I would expect to complain, but clearly, although I do not know the names of the people, but they did complain. The fact that they were not dealt with is another question and I suppose, I do not know, it might be necessary to arrive at

[Page 42]

some legal definition of what they meant in the report when they said complaint. It may be a complaint that they dealt with and maybe they did not deal with any, but clearly they received a lot of correspondence on the subject.

Miss Campbell: The one area that you are asking us for an over-all provision at the federal level into really a provincial level and parent level of jurisdiction, the provinces had a certain jurisdiction under the child welfare acts, and parents have their own jurisdiction over their children, and we are dealing at a federal level with an inclusion of the child that would supersede or go into all the areas of it.

Do you see any conflict there at all between the levels of jurisdiction? And that would lead me to my second question, which I do not know what my time is, if I still have the time, were we get to the Equal Rights Amendment Act in the United States and you have that whole concern of another group of women who have said with the equal rights for men and women, it may be so in the business end of it but you are forgetting the whole family area of protecting the women who are in the home, and what comes to my mind is the children who are in the home in relation to these equal rights for men and women, and where does the child come in? I know we leave it to the courts to interpret it in divorce cases, we leave it to lawyers to interpret it in legal separations, but there is no one concerned about the legal rights on behalf of the child and I guess I have asked two questions.

One example of the provincial rights was a few years ago I sat on the committee on the battered child, and the agencies and the provincial people who came to the committee, they stated: you are dealing with provincial rights, you should not be dealing with the battered child in this Committee at the federal level. Here we are, you are asking us to deal with a child, are we overstepping in getting into parents jurisdiction as well as provincial jurisdiction, and maybe you might answer that other comment I made about does the child have a right in these parental matters.

Professor Cruickshank: I will attempt to answer that. On the first question of divided jurisdiction, if I understand the purport of the Charter, Section 29 would cover this problem, where as in the past we have fought over who was supposed to look after whose rights. Now the Charter will apply to all the provincial legislatures.

To go to your second question, which I think is also connected to the first, again I would emphasize that we think the legislatures in Parliament cannot just sit back on their laurels and say: well, we have passed the Charter, let us all go home and go to sleep and forget about children. We think that the child welfare acts will have to be amended to put in specific rights for children in care to prevent them from governmental neglect as well as family neglect.

We think you are going to have to reexamine provincial statutes that permit the detention of children for provincial offences, for example. Federal statutes in connection with

[Page 43]

divorce, who is going to put in a right to representation in civil proceedings? That will have to go into the Divorce Act.

So it is not just a question of: well, we have had one shot at protecting these rights, now we will forget about children. It is going to involve an extensive review of the statutes, specifying the rights that will protect their interests, and I do not think this is, what you are suggesting I think is unwarranted state intervention. This is a recognition of rights where the state is already intervening. No one is suggesting that the state is going to withdraw from being worried about neglect and abuse in the home, no one is suggesting that at all.

Miss Campbell: I was not either.

Professor Cruickshank: And I do not think it is on all fours with the women’s issue in that respect.

[Translation]

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

Mr. Hawkes, followed by Senator Lucier.

[Text]

Mr. Hawkes: Thank you, Mr. Chairman.

Mr. Cruickshank, is one of your areas of academic expertise constitutional law?

Professor Cruickshank: That is correct.

Mr. Hawkes: Could we just bicycle a question? We are having trouble getting expert constitutional lawyers before this Committee and I am wondering if you could give us some indication of whether or not you feel, on the basis of that kind of expertise, whether or not the unilateral action of the federal government is likely to be ruled illegal?

Miss Campbell: Charge for that because you are not here in that capacity.

Professor Cruickshank: I am not here in that capacity. I could only answer in a personal capacity and I sense your question as being somewhat loaded. However, I will simply say this: it seems to me, and I will state what I have told my classes at the University of Calgary, and that is I think that the court action is going to turn on the whole question of convention, how the conventions with respect to constitutional resolutions have been handled. There is conflicting convention, and it seems to me that in that whole question, that if the courts want to follow the conventions, they might be entitled to say you have to have provincial approval, but there is no court decision that says that we have to follow conventions that have been carried out three times, I think three times is the record.

Mr. Hawkes: Thank you, Mr. Cruickshank. That fits another part of your brief in which you indicate that the present wording, or the wording in any charter or in any constitutional amendment has to be interpreted by the courts, and as someone who has a specialty in concern for children you have said clearly in your brief that the courts have not, in your view, adopted a particularly good stance in relationship to children’s rights and I think one of the words in your brief is that they have been somewhat paternalistic.

[Page 44]

Does that lead you, and it is nowhere in your brief, but does that lead you to any kind of conclusion which might suggest we need to change our system, if we are going to have a Charter something like this, that we might need to change our institutional arrangements in terms of the ways that we select judges, that we might need more public examination of the people who fulfill that function in our society, that their backgrounds might be as equally important as their legal training?

Professor Cruickshank: Can I ask you whether you are suggesting that they ought to be or could be nonlawyers or . . .

Mr. Hawkes: Well, if you want to go in that direction. In the United States of America Supreme Court judges are subjected to considerable public examination before appointment. In our system that does not occur.

Professor Cruickshank: Well, again, I can perhaps speak to the way that family court judges are appointed. I am quite familiar with how they are appointed in various parts of the country, and I know that certainly the judicial councils which recommend those appointments in the various provinces, and also federally, are very conscientious about the area of practice that the lawyer has operated in and about that lawyers attitudes in the whole area of the family, and certainly I know that recent appointments to the family courts have been quite sensitively handled by the judicial councils in Canada.

Now, it seems to me that it is then a political question as to whether one wants to expand that public scrutiny process.

Mr. Hawkes: In terms of the interpretation of the law as it affects women, as it affects children, these kinds of attitudes are important and it might even argue for the inclusion of women on the Supreme Court of Canada if we move into this expanded area of jurisprudence, the background of practice, the background of attitude becomes more and more important.

I want to ask you a couple of very specific questions that flow from the wording that currently sits in the constitutional proposal, but I skimmed through it during the presentation and I found the following sets of words and I am wondering if you can tell us whether any of these have been deemed by courts in Canada consistently to apply to children rather than to not apply to children.

I found the words “everyone; every citizen; anyone; every person; any member of the public”, and there have been a number of people who have suggested the words “men and women”, and I am wondering if any of those have been deemed to include children, and I have one other question that you might answer at the same time. You said public attitudes towards children as chattels must be changed and I am wondering if the inclusion of the word “children” in a number of places might in fact be a public education tool, to assist in the reeducation of the public around children, and lastly, I wonder why, in the languge rights section, you have made no comment that I can see when in fact I think the language

[Page 45]

rights section in the proposed amendments do in fact treat children as chattels, the tone of those sections would in fact treat children as chattels?

Professor Cruickshank: I will try to answer the first two questions and I think Mr. Cohen will answer the third.

With respect to the courts, we do not have clear statements that words like “everyone” and “anyone” do apply to children. I think the prime example we have is the Burnshine case which decided that a young offender, a person under the age of majority, really had “equality before the law under the Canadian Bill of Rights”, but they said that equality before the law did not apply to him because he was being given a benefit by getting three years in a juvenile prison instead of six months that an adult would have got. That was termed a benefit for the reform of the individual, so that while in that case it was recognized that the section in the Canadian Bill of Rights, Sections 1 and 2, could be applied to a person under the age of majority, in our view the outcome was not very exciting. In fact very disappointing.

We are worried that in a constitutional interpretation of the present Section 15, it would take a constitutional amendment to undo that damage, and that is the real concern we have about Section 15.

Now, your second question, Mr. Hawkes, if you would just remind me what it was?

Mr. Hawkes: I wondered whether public attitudes might be best changed if we included the word “children” in appropriate places throughout the Charter?

Professor Cruickshank: Thank you. I think the way to handle this might be to make it clear in a preamble statement in the Charter that words like “everyone” in this Charter includes, and list men, women and children to make it absolutely clear. Perhaps through the preamble rather than constant reptition.

[Translation]

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

[Text]

Mr. Cohen: Mr. Chairman, I think on language rights.

The Joint Chairman (Mr. JoyaI): On language rights?

Mr. Cohen: I take it you are referring to Section 23 of the proposal which talks about the rights of parents to have their children educated in a variety of ways, depending on their situation, and you are referring to the paternalism of that. Although we did not address ourselves to that specifically, that would be an opportunity to implement the kind of changed attitude that you are talking about and perhaps recognize the possibility that a child of eight or nine who is in that situation might actually have the capacity to help make the decision.

It seems to me that that section, as I say, would be an opportunity to include some sort of wording recognizing that

[Page 46]

as children get older their capacity to make those kinds of decisions and participate in them increases, and that some recognition ought to be made in there, rather than just assigning the right for all children, and that can be up to the age of 18, depending on what province they happen to be in, that their parents shall decide what language they will speak in school.

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Mr. Cohen. Thank you Mr. Hawkes. Senator Lucier.

[Text]

Senator Lucier: Thank you, Mr. Chairman.

Mr. Cohen, I am very pleased to see your brief. I find it very interesting. I am sorry I did not have a better chance to go through it but I will go through it again.

I was a member of the Senate Committee which just recently tabled a report called Child at Risk so I do have a real interest in the work that you are doing.

I only have a few questions. One of them is, is there any other country that you know of that has a Charter of Rights which entrenches the things that you are suggesting. I am wondering about something that we could use as a model. is there someone else that we can go to?

Professor Cruickshank: Sir, the United States of course has extended many amendments of their constitution, concepts of equality before the law, concepts of rights upon arrest, rights of privacy, they have extended many of these to children and young persons.

The real turnaround case was in 1967, known as the Galt case, and that case simply said you have to apply all the rights regarding pretrial, arrest, lawyers, a fair hearing, a full and fair trial, to young persons. You cannot simply treat them in a fatherly manner, take them under your wing and send them off to a juvenile jail for two years.

Senator Lucier: So there is a large area where we would not be breaking new ground.

Professor Cruickshank: Not at all. There is certainly extensive American jurisprudence and more developing in Britain, Australia and the United States through the cases, but this has been largely developed through the judicial decisions interpreting the basic constitutional documents in those countries.

Senator Lucier: Thank you. My other question, Mr. Chairman, is people have very different ideas of the right and wrong way to raise children and society itself dictates, and in different areas of the country even, I am from the North and I know that people in the North very often have a way of raising their children that if the same treatment was given in some parts of the south it would be considered cruel and unusual punishment, what the child in the north is given to do, but up there it is just a very normal thing and it is a normal way of life for some of those children.

I am just wondering how would you practically define the rights that I am thinking of that it would seem to me you are suggesting, that a child has, and I would like to see protected. I am not suggesting that it should not be, I would like to see

[Page 47]

these rights protected, How would you define them, to begin with, and, secondly, could they really be practically protected? Could such a law be enforced? Could it really be done?

Professor Cruickshank: Again we go back to our point that we are not suggesting a distinct and separate bill of rights for children. However, I think the point to which you may be addressing yourself is equality before the law and the various interpretations that might have from region to region, I think that if, as legislatures and as Parliament, the legislatures are careful not to get too specific and detailed in their laws, in this field it has been my experience that a good deal of discretion has to be left to administrators and judges to practically work out the problems of the regions.

So it would be unwise to get into lengthy and detailed regimes for handling child abuse cases, it seems to me.

Senator Lucier: But you in your brief do state, I believe, something to the effect that welfare agencies—who is going to protect the child against a welfare agency that moves the child from one place to another? I agree with what you are saying in your brief, that child should be protected against that type of thing. What I am saying is we have to find a practical way of doing it. I do not know one and I am asking if there are ways of doing it.

Mr. Cohen: One of the problems of the current situation is that because children are defined as kind of chattels of their parents or of society the rules for how they are treated really do not have anything to do with what should be available for children, but have to do with what will happen to people who do not ‘do certain things to children.

In other words, children do not have a right to education as we would define rights for other people. Parents have an obligation to send their children to school from a certain time in the morning until a certain time in the evening. If we were talking about adult rights in regard to education, there would be some definition, some positive minimum standard of what that education was. Surely my right to the minimum wage, for example, or my right to be paid a certain amount of money, comes with the definition of what that is, whereas in the case of children, as I say, what is defined as obligations that parents have or society has in the place of parents to do certain things to children.

One of the ways that I think a solution to your problem can be found is if we begin to examine all of those areas in which we hopefully will begin to define children as having rights and set some positive, minimum standards so that there will be something which people can aim towards the achievement of. When there are no standards, as is currently the case, there is not any way to decide; so it is only in the flagrant breach of conduct by either a parent or someone acting in the place of a parent, a child welfare agency or some other agency, that any action can be taken.

[Page 48]

What we do not have, for example, when we talk about what shall happen to the child in care, are minimum standards for what minimum care is so we have a situation where parents who would like to adopt a child are not quite capable of meeting particular standards that must be met in order to adopt a child, so they are not allowed to adopt a child and instead the child is in a foster home which does not come anywhere near meeting those standards, We do not have any positive, minimum standards for what care should be for children or what education should be for children. What I am suggesting in a round-about answer to your question is that until we do it will be very difficult to find the answer to your question by setting rules and saying. how are we going to go about sanctioning people who fail to meet the standards, because there are not any standards.

Senator Lucier: I agree with what you are saying, Mr. Cohen.

The Joint Chairman (Mr. Joyal): I have to restrict you to five minutes because I see that it is quite late and I have still two more speakers.

[Translation]

Mr. Kilgour, followed by Mrs. Côté.

Mr. Kilgour: Thank you. Mr. Chairman.

[Text]

I, too, think your brief was excellent and I thank you for it.

I notice you take a somewhat equivocal position on the question of an entrenched bill of rights but would not an entrenched bill of rights that was not basically, as I qualify the existing one, feathers and razor blades. would it not prevent decisions such as the Burnshine decision? Would it not prevent bad decisions such as the one that we had in the Burnshine case?

Professor Cruickshank: I am not certain of that. I can certainly see a court looking at Section 15 as it is now in the Charter and looking at Section 25 which authorizes them to render a law inoperative and then looking at the Burnshine facts and saying, well it seems reasonable to us that you are going to put a 17 year old into an indefinite sentencing situation because we here in the Supreme Court of Canada believe that young people get reform in these training schools and that it is for their benefit. Therefore it is not a harsh treatment and therefore not unequal before the law.

Mr. Kilgour: I think the premise of my question was that if we did not have Section 15 as it is and did not have Section 23 or many others in the form that they are in now, could we not do better than we are obviously doing under the present situation and would be likely, for the reasons you have just mentioned, to do under the. . .

Professor Cruickshank: Precisely. I think we need amendments and on the Burnshine case point we have made recommendations about that phrase “amelioration of conditions” about how the court ought to be able to enquire behind the stated object of the law and get at the real facts. Is this really reformation? Is this really beneficial treatment or is it really punishment in fact? The courts should be able to attack that question.

[Page 49]

Mr. Kilgour: Do you know of any country where there is an entrenched bill of rights which does adequately protect the rights of children?

Professor Cruickshank: I do not know how to say that it would be adequate. I suppose it is always an evolving situation, but perhaps the United States has gone the furthest in this area.

Mr. Kilgour: As good as any.

Do you consider your field of interest or concern to include the rights of unborn children?

Professor Cruickshank: We have looked at the Charter from this point of view and simply observe that in most statutes in the country the word child is defined as meaning from birth until the age of majority, so we assume that this definition would be read in the Charter, so that Section 7 dealing with the right to life could not apply to the child before birth. This has certainly been the line of interpretation in the United States Constitution which has a similar phrase. No one has been successful in suggesting that in the United States with that phrase “right to life” it does apply prior to birth.

Mr. Kilgour: Thank you very much.

The question of age of majority, perhaps you are saying that we should not be worrying about the concept of age of majority if protection is adequate, or do you take a position with respect to whether the age of majority should be changed in a new juvenile offenders act, or something?

Professor Cruickshank: We do not take a strong position on this although in Admittance Restricted we did point out the anomaly that in many provinces you become legally speaking an adult for all criminal law purposes at age 16 and yet you have none of the rights of the adult until you reach age 18 or 19. I think this anomaly will come into the courts under the proposed Charter because of the age discrimination phrase. There is certainly one that is wide open for challenge.

Mr. Kilgour: My time is running out, I am sure, but finally on the question of the custody orders which as you know are ignored fairly frequently by parents who kidnap their children and go to another province, have you anything that you might suggest that we might put into a revised bill of rights that might deal with that problem?

Professor Cruickshank: I have nothing specific to suggest except to point out that Canada is probably one of the leading nations in this respect in that it has in I think nine out of 10 provinces or eigth out of 10 provinces a uniform custody enforcement legislation, and even has an international pact now. I think that is the route to go, province by province laws, but with some teeth and enforcement agencies to back them up.

[Translation]

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

Mrs. Côté.

Mrs. Côté: Thank you, Mr. Chairman.

[Page 50]

First I will make a comment.

Quite friendly, I regret to say that there is no women amongst the witnesses we are meeting tonight, that could talk to us about the situation of children and of young people.

On the other hand, we have talked a lot about the rights and protection that we should give to youngsters and children, no matter the age. We ask that a lot of things be included in the bill, but I would like to hear the opinion of the witnesses concerning the parents’ responsibilities.

In the new society which we have created and in which we have placed the children, before great changes, if we consider the newest goals, the new teaching techniques, if we consider that parents have great difficulty following the evolution of their children, and, to come back to what Senator Lucier was saying, when we look at all the systems that we have put into place concerning foster homes, and in many cases, children are taken away from their parents, I would like to know what could be done to make parents more aware of their responsibilities towards their children.

I agree with your brief when you say that children should not be considered as chattels of their parents but they still have rights and it is difficult not to respect these rights and I would also like to know how we could better protect the children while respecting the rights of the parents and their responsibilities, and how we could awaken them to those responsibilities.

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

[Text]

Mr. Cohen: In answer to your first question, very briefly. about where the women are, we are a democratic organization with a board of directors largely composed of women who elect their representatives to go to various bodies like this one. I do not know whether it is a good thing or a bad thing that we were elected to come, but here we are. All I can say is that women helped to make the decision and perhaps they need to be better educated in order to make a better one next time.

More importantly, your question about parents’ rights and parents’ responsibilities is an important one. There is no question that the vast majority of responsibility for looking after children does in fact rest on their parents, and I do not think that anybody really wants to change that.

What we were talking about a little bit earlier was the whole business of how do parents receive the information they require in order to do an appropriate job of looking after their children. Where are they going to get that information? Who is going to give them that information?

I would say in relation to the question you asked about how does one reconcile parents’ rights with children’s rights or parents’ responsibilities with emerging children’s rights the answer is that families first of all need more education in terms of working as families and, secondly, society has an obligation to support families.

[Page 51]

I think we are moving into a society and we have arrived at a bad place in society where we do not like children and we do not like people who have them. We do not want them in most of our apartment buildings; we do not want them attending many of the events that take place in our community; we do not want them in restaurants; there are alternative places that we do not want to see them. It is not just the children that we do not want to see, it is the parents who are with their children. It seems to be that that is a very short sighted view of what community is like. A community is made up of people who range from zero to people who are 125 years old and all the ages in between. That is biology; that is how it works.

There may be certain groups that we do not like to see around very much but we cannot deny their existence and until they begin as a community to take responsibility for all the other members of the community and try to find our own place in it, I do not think there will be an answer to your question. I do not think you can legislate that people will be interested in each other, care about each other. become concerned with the concerns of their neighbors; you cannot force that to happen. All you can do is educate people to think that it should happen.

It perhaps goes back to what were talking about a little earlier in relation to the whole need for education. People need to know more; they need to have more information; and we cannot say that because the family is important we are going to leave it alone. That is what we were talking about a little bit earlier, that the family is so holy that we will not touch it, we will let everybody do whatever they want in the family because who are we to interfere. We allow to go on next door what we would call the police about if it were happening to the person who runs the store on the corner of the street. I do not think we can tolerate that any longer. I think we have to become involved in each other’s lives if we want to have change. We cannot just say let us pass a rule and then we will put all the people in jail who break the rule. That is not how communities work. Standards have to be set. And people set standards by acting in a certain way. By acting in a certain way, other people become persuaded, and then it is possible to see what is going on in a community and for a community to work together.

Otherwise there is no point passing a law saying everybody should be nice. If people do not want to be nice, they will not be nice.

[Translation]

The Joint Chairman (Mr. Joyal): Mrs. Côté, one last question.

Mrs. Côté: Mr. Chairman, by the answer that was given. I am happier to have asked that question.

I think you just described the whole program of the Canadian Council of Children and Youth.

I do not think that the constitution or the new Charter of rights could contain what you just proposed, but you have quite an education program in front of you.

[Page 52]

Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you. Mrs. Côté.

[Text]

On behalf of all of the honourable members of this Committee and on my behalf I would like to thank you especially for your exceptional contribution to our work.

I would not express the same kind of reserve that was put to you by Madame Côté because I think the day that we will hear men at this Committee fighting for women’s rights, I think that we will have made a great step ahead. When I see a father coming to us to speak of children’s rights, I think that we are moving ahead.

Thank you very much. Merci beaucoup.

The meeting is now adjourned to 9:30 tomorrow morning when we will have the opportunity to hear The National Black Coalition of Canada.

WITNESSES

From the Canadian Federation of Civil Liberties and Human Rights Associations:

Mr. Edwin Webking, Chairman;
Mr. Norman Whalen, Vice-Chairman;
Mr. Gilles Tardif, Director.

From the Canadian Council on Children and Youth:

Mr. Andrew Cohen, Executive Director;
Mr. David Cruickshank, Vice-President;
Mr. Joseph Ryant, Board Member.

Other Issues: